17.08.050 Setbacks for new construction required adjacent to open creeks.
A. Construction of, or addition to, any structure having a roof supported by columns or walls, including dwellings, garages, other accessory buildings and commercial buildings, within thirty feet of the centerline of an open creek shall comply with to this section.
B. A vertical expansion within its existing footprint of a structure that is located within thirty feet of the centerline of an open creek may be constructed with the approval of a creek permit by the City Engineer in accordance with this section. An applicant for a creek permit shall submit a report completed by a licensed engineer or licensed geologist with expertise in hydrology or slope stability concurrently with the application for a building permit demonstrating to the satisfaction of the City Engineer each of the following:
1. The project will not create, exacerbate, or prevent the abatement of erosion and bank de-stabilization problems.
2. The project will not increase stormwater runoff into the creek.
3. The project's construction activities will not degrade water quality from increased sedimentation and particulates from disturbed soils; pollution from motor oil; or from the generally high level of toxics and trash around construction sites.
4. The project will not eliminate or degrade significant in-stream or riparian corridor habitat.
5. The project will not prevent establishing stable banks and/or headwall at a culvert intake or outflow or otherwise impede or complicate access to a culvert for maintenance or repair.
The City Engineer may adopt administrative regulations that guide analysis of each of these issues and may establish a list of qualified consultants. If the expansion is otherwise subject to an Administrative Use Permit or Use Permit under the Zoning Ordinance, then the requirements of this sub-section shall be satisfied as part of the consideration of the Administrative Use Permit or Use Permit.
C. Any expansion of an existing structure into or within the area twenty-five to thirty feet from the centerline of an open creek may be constructed outside its existing footprint with the approval of an Administrative Use Permit. Each of the following findings must be made by the Zoning Officer or, on appeal, the Board:
1. Alternatives to expansion within the setback area, such as reducing setbacks to move the structure further away from the centerline of the creek, are either physically or economically infeasible. Physical feasibility includes site constraints and the relationship of the structure to adjacent structures. Economic feasibility includes consideration of the relative cost of constructing the structure in its original location and moving the structure to a new location.
2. The additional encroachment into the area within 25-30 feet from the centerline of the creek is not substantial in relation to the width and depth of the property and the existing structure on the property.
3. The expansion will not create, exacerbate, or prevent the abatement of, erosion and bank de-stabilization problems.
4. The expansion will not increase storm water runoff into the creek.
5. The expansion's construction activities will not degrade water quality from increased sedimentation and particulates from disturbed soils; pollution from motor oil; or from the generally high level of toxics and trash around construction sites.
6. The expansion will not eliminate or degrade significant in-stream or riparian corridor habitat.
Any expansion of an existing structure within thirty feet of the centerline of a creek impacts the riparian corridor in that it reduces the size of the corridor, and may impact habitat, flooding, runoff, and water quality. The Zoning Officer/Board shall require on-site mitigation commensurate with the impact of an expansion on the riparian corridor subject to this section.
D. Except as otherwise provided in subsections B and C, it is unlawful for any person, organization, institution, corporation or the City of Berkeley to construct any structure having a roof supported by columns or walls, including dwellings, garages, other accessory buildings and commercial buildings, within 30 feet of the center line of any open creek.
Approval for such construction may be granted only by appeal to the Zoning Adjustments Board for a variance. The decision of the Zoning Adjustments Board may be appealed to the City Council pursuant to Chapter 23B.44 of the Berkeley Zoning Ordinance. (Ord. 6956-NS § 1 (part), 2006: Ord. 6740-NS § 1, 2003: Ord. 5961-NS § 2, 1989)