When reading the Questa Engineering Report in the Technical Appendices of the DEIR (pages TA-3 2 & 3), I was struck by how rapidly they accepted the anecdotal evidence presented by Mr. Donald Napoli regarding the culvert at 1301 Oxford. I decided to attempt to learn more-- particularly any facts that supported or repudiated this anecdote.

I began with a search of all the microfiche collected by the City of Berkeley (CoB) Planning Department. CoB Planning has records on this property that reach back to April 26th, 1926 but they stress that their records are not complete. I have looked at every fiche in Planning relative to 1301 Oxford and 1302 Spruce. Those addresses are the extent of fiche concerning this 2.15-acre parcel-- other sequential addresses are for property that is not part of the 2.15 "Byrne" property. I found no record (permits, etc.) for anything that can be construed as a culvert in the Planning fiche.

Mr. Steve Solomon (CoB Planning) said that there is a CoB record of an easement granted in 1909 to CoB for a culvert of Codornices Creek on the eastside of Spruce Street. This corresponds to the time when Spruce was fashioned into a road and would cover the property requirements for the culvert under Spruce. Mr. Solomon told me that he assumed that's when the West Side was done.

As we know from long-time residents, neighborhood anecdotes and the Sanborn Maps, Codornices Creek on the Byrne property (the West Side of Spruce) was not culverted until the '50s.

On December 12th, 1950 Alice Robinson conveyed the Byrne property by deed to the People's Church of Berkeley. There were numerous covenants in the deed, which can be viewed (poorly, the copy is not very good and some words are indistinguishable) at CoB Planning on the 1301 Oxford fiche, 1 of 5, C5 through C8. It is an awesome conveyance. Mrs. Robinson's lawyers knew their work and she manages through this deed for either her heirs or assigns or the Christian and Missionary Alliance (a New York Corp.) to control the land after her death.

By 1952 the owner was known as The Church of the Cedars. The CoB fiche (1302 Spruce, 1 of 1, A3) shows a permit request dated April 28, 1952 signed by the Church's pastor, Mr. Thomas Williamson, and listing the builder as The Church of the Cedars. Fiche B4 of April 28th, 1952 also covers this event, which is for building a new 32' X 90" concrete church. Cost est. $33,000. There is a corresponding demolition permit for a pump house that occupied the proposed building site.

I have a document compiled by Ms. Joan Kremmer. It contains a page that might be the source for Mr. Donald Napoli anecdotal reference. The following is an exact reproduction of this page, including errors:

"However, it is agreed that Miss Robinson stipulated exactly how this property can be used. She said that no trees are to be cut down, and that the creek cannot be altered with. I have also be lead to believe that she still has a great deal of say in how the property is to be used. It is a fairly common assumption that there must be some clause in the agreement, that gives her some power over the property.

"In1952. a member of the church built the sanctuary for the church free of cost. This sanctuary is located about 35 yards behind the mansion.

"This generous action was short lived because the man dumped cement into the creek, and cut down several of the trees. He and the pastor got into quite an argument, and the man immediately left the church. He then added injury to insult by billing the church for the construction of the sanctuary. It is ironic because this man was one of the people interested in buying the property.

"His dumping cement into the creek has caused the city to order that the creek be completely covered over in that spot. This is in direct violation of the agreement made between Miss Robinson and the church. It could be that when the creek was covered up, the agreement became void, and Miss Robinson once again owned the estate. However the church still pays taxes on the property, so this is probably not a correct assumption."

In my conversation with Mr. Solomon, he suggested that CoB Public Works, Engineering Dept. would be the only other place to look and that I should carry my inquiry on to them.

At CoB Public Works, Engineering I spoke with Mr. Ted Zupan (665-3448), regarded as their expert in matters of this sort, particularly when you have to look up records. In our initial conversation he said:

• The Engineering Dept. doesn't have records that go back that far.

• Most culverts on public land were built before and up to the depression, some by the Army Corps. Of Engineers, others by the WPA.

• Berkeley doesn't and didn't build many culverts and Mr. Zupan has in the past tried to find all that were built and can find only a limited amount of culverts shown on only two or three maps.

• Culverts built on private property were built (back then) by the owners. Culverts weren't usually listed on the permits, they were considered fill. Because of the nature of this culvert (not required under a roadway) he expects that the owner built this culvert, BUT, he would check for any record and get back to me.

• A constant theme, one repeated by Mr. Zupan, is that things were more lax then-- the city just wanted the permit fee and did little recording or oversight.

"I have done a search of the records and we don't have anything... it must have been done by the property owner."

Further, I think we can conclude that the contractor was performing a rogue act, something clearly against the wishes of the owner, the Robinson family, and the surrounding community. The CoB did not mandate this action, it would have been contrary to their known practice and there is no record to substantiate this part of the foregoing Napoli anecdote. I am stating this to clear it from any imprint of CoB directive, something that is hinted at in the DEIR Appendix TA-3 page 3 when Questa writes:

"...that in 1952 the dumping of concrete into the creek (possibly to prevent bank erosion) led to the requirement that the creek be culverted."

The facts, practices and stories of the time suggest a different motive, i.e., that the contractor was trying to gain a financial interest in the property. If you walk down into the creek at 1301 Oxford, you will discern that the culvert is shaped and sized to "plug into" the culvert under Oxford Street. You will also notice that outfall and its "pad" looks unplanned, as if the culvert was stopped before it reached its goal; to connect into the Oxford culvert. You can observe that the culvert at the point that it was stopped points directly at the Oxford culvert. I believe that the contractor was stopped and the consequent outfall was unplanned. It surely doesn't function properly.

You can not examine this reach of the creek without suspecting that something went wrong. The creek banks are unnaturally steep. The outfall damages the creek.

The culvert is suspect. To quote Questa Engineering in the CBE DEIR, Appendix TA-3, page 3:

"The five foot by five foot concrete culvert is in fair condition with some small cracks at the construction joints."

"The concrete culvert itself is currently being undercut^[2]. ... If the culvert continues to be undercut, its structural integrity may be threatened."

"The presence of the creek culvert and the location of the channel bed approximately 25 feet below the below ground surface is indicative of the placement of fill material, either local or imported, on the site."

"The fill soils appear to be uncompacted. "

Back to page 2:

"As described, the outfall invert is approximately 3.5 feet above the pool water surface. The outfall from the culvert has created unstable channel conditions. The orientation of the culvert outfall causes concentrated flows to be discharged toward the south bank of the creek. These conditions have caused channel toe scour and contributed to upper bank erosion."

• The culvert is cracked and in only fair condition.

• The soils over and around the culvert are unstable.

• The culvert doesn't function properly, and as a result causes landslides and continued channel undercutting.

• Because of its faulty design, the culvert is not only a danger to the creek; it is a danger to itself and is slowly undermining its own integrity.

What if one of these huge buses that CBE uses crushed the culvert? What would be the damage? What if a bus just weakened it and it collapsed during rainy season? Most cities have ordinances that require septic tanks and sewer lines to be inspected at intervals and when property is sold. Doesn't Berkeley? If this culvert is faulty, it must be removed.

CBE's plans to landscape the creek attempt to partially fix the erosion problem caused by the culvert. The plans (which they call creek restoration) only attempt to control the erosion by "the placement of rock at the toe of the channel bank in the open reach of the channel." This is clearly in violation of Berkeley's Creek Protection Ordinance, which in one section defines the rock as "riprap," and states that:

"The intent of this section is to prohibit culverting and riprapping, unless there is strong evidence that there is no other reasonable means to prevent the erosion of adjacent supports, foundations, or other structures."

CBE's plans defy the intention of the Berkeley Creek Ordinance, which states:

"it is in the interest of the City of Berkeley to encourage the removal of culverts and channels, prevent channel riprapping, and to restore natural watercourses whenever safely possible." (17.08.020.H.)

What CBE has in mind is the cheapest fix. They have owned this property going on three years and though they are quick to remove trees, the creek, untouched, remains in the same distressed condition. At least three serious slides have occurred during that time. To me this is not responsible. I believe that the reason they have not done their simple fix is that if they did, and the slides still occurred, they would be forced to daylight the creek, which would cause them to either re plan or abandon the whole project. Otherwise, if safety, etc. is truly their concern, why haven't they fixed it by now?

The DEIR completely ignores the fact that the creek, daylighted and restored, would be of immense value to both the congregation and the neighborhood. Berkeley Design Advocates (BDA) have suggested a number of strategies for accomplishing this, while allowing CBE to accomplish their other project objectives, but BDA's overtures have been rejected by CBE. Failure to address these other more acceptable alternatives makes the DEIR deficient.

Finally, I think the DEIR is deficient because it failed to notify other agencies that have legal oversight on this issue. E.g., The California Department of Fish and Game, The U.S. Army Corps of Engineers and those agencies deemed to be notified under Section 303(d) of the federal Clean Water Act. Failure to notify these parties makes all conclusions subject to review and thus makes the DEIR deficient.

v.3. 9.27.00