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A. Except as provided in subsection B, any construction within 25 feet of the centerline of a culverted creek, as the location of such creek is depicted on the City of Berkeley map, that either expands the mass or footprint of an existing building, or builds a new structure whether or not subject to the securing of a building permit, shall comply with the requirements of this section. This section authorizes administrative review and regulation of development of structures near creek culverts for the purpose of determining appropriate setbacks that promote safety and allow access for maintenance and repair. Appropriate setbacks generally include those in which the structure foundations are set back from the edge of the culvert a distance equal to the depth of the culvert.

B. The following structures shall be exempt from the requirements of this section:

1. Any fence, arbor, trellis, pergola, gazebo, play structure or other similar unenclosed accessory structure.

2. Retaining walls less than three feet in height.

3. Flag and light poles.

4. Solar energy equipment.

5. Mechanical lifts.

6. Prefabricated or other moveable one-story detached accessory buildings that are not permanently attached to a foundation.

C. Prior to undertaking construction subject to this section, in addition to the information otherwise required to be submitted in connection with any other applicable permit, the property owner shall submit the written results of an investigation, including a map with topographic features and two foot contours and the depth and size of the culvert, that demonstrates to the satisfaction of the City Engineer the location of the culverted creek. Where such investigation establishes to the satisfaction of the City that the centerline of the culverted creek is located more than fifteen feet from the proposed construction, such construction shall not be subject to any further regulation under this section and the City shall so advise the property owner in writing unless the City Engineer finds that the depth and size of the culvert requires further review under paragraph D.

D. If the investigation submitted pursuant to subsection C demonstrates that the proposed construction will occur within fifteen feet of the centerline of the location of the culverted creek, or the City Engineer finds under subsection C that further review is required under this subsection D, then the applicant shall be required to obtain a Culverted Creek Permit. The City Engineer shall only issue a Culverted Creek Permit if the applicant submits a report from a structural engineer, contemporaneously, with the application for a building permit, which establishes to the satisfaction of the City Engineer, each of the following:

1. The structural integrity of the culvert under existing conditions is acceptable to the City Engineer and will not be compromised by the proposed construction.

2. The proposed construction will not impede access for the responsible party to repair and maintain the culvert.

3. The flow of the creek will not be impeded nor its water quality impaired.

The report from the structural engineer shall include (1) a map depicting the distance between the structure and the culvert with topographic features and two foot contours and the depth and size of the culvert; (2) a description of any physical defects in the culvert based upon a visual inspection by closed circuit television or other technology approved by the City Engineer; (3) an analysis of the stability of the culvert based upon a structural analysis; (4) the proposed design of the foundation and the bearing strength of the soil; and (5) any other information deemed necessary by the City Engineer.

E. If the proposed construction is located within fifteen feet of the transition to an open creek, then the construction must comply with each of the provisions of this chapter that apply to construction adjacent to or within an open creek including the provisions of section 17.08.050. (Ord. 6956-NS § 1 (part), 2006)