APPEAL OF AUP GRANTING CONVERSION TO ACCESSORY DWELLING UNIT

85 PARNASSES

APPELLANTS LETTERS, SUPPORT LETTERS, DOCUMENTS AND EXHIBITS

IN SUPPORT OF GRANTING THE APPEAL; DENYING THE AUP

FOR: Zoning Adjustments Board Hearing August 28, 2014

Submitted by Rena Rickles on behalf of Appellants:

Jenny Chatman and Russell Barnett

Dora and Tulio Halperin

Elizabeth Smith

Gordon Gray and Taite Darlington

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TABLE OF CONTENTS

COVER LETTER pg. 1

STATEMENT OF THE CASE pg. 6

• Findings pg. 7 • Rebuttal to Staff Findings pg. 9 • This is NOT a “by-right” Project pg. 12 • Interior Rental IS an Accessory Dwelling Unit pg. 14

“HISTORIC PATTERN OF CODE VIOLATIONS1” pg. 15

• Chronology of “Historic Pattern of Code Violations” pg. 16 • 8-11-2010 Building Application pg. 19 • 8-11-2010 Zoning Application pg. 20 • 8-18-2010 & 8-23-2010 Corrections Requested and “Response” pg. 21 • 10-15-2010 Revised Application pg. 26 • AUP Application stating “Not within 2’ of setbacks,” use intentionally left blank pg. 27 • Plans showing “closet,” that becomes “shower” pg. 28 • List of Inspections and Permits pg. 30 • 11-19-2012 Emmons Notice of Violation(s) pg. 31 • 4-8-2013 Cosin Letter with Highlights pg.32

STATEMENTS IN SUPPORT pg. 35

• Betsy Smith Statement pg. 36 • Dora Halperin Statement pg. 37 • Gary Parsons Statement pg. 38

EXHIBITS pg. 40

• May 8, 2014 Transcript of ZAB Meeting (with highlights) pg. 41 • Proximity Map of 85 Parnassus St. & 10 Parnassus Ct. pg. 93 • Google Earth Map of Subject Properties (Sun/Light) pg. 94 • CraigsList ad from 8-20-2014 for Interior ADU pg. 95 • Cal Rental ad for Exterior (“Garage”) ADU pg. 96 • Picture of shower sent to prospective tenant February 2011 pg. 97 • Conversations between Jenny Chatman and Mona Nichols pg. 98 • Picture of backyard before project pg. 103

1 Quoted from 4-8-2013 Letter from Wendy Cosin to Applicants

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RENA RICKLES Attorney at Law

1970 BROADWAY, SUITE 1200 OAKLAND, CA 94612

TEL: (510) 452-1600 ~ FAX: (510) 451-4115 EMAIL: rena@rickleslaw.com

August 21, 2014

Michael Alvarez-Cohen, Chair Zoning Adjustments Board (“ZAB”), Chair 2120 Milvia Street Berkeley, CA 94704

Re: 85 Parnassus; GRANT Appeal; DENY Application

Dear Chair Alvarez-Cohen and ZAB Members:

First, on behalf of all of the Appellants, I want to thank you and the ZAB members for the attention and careful analysis you provided to what continues to be a major policy problem regarding the cascade of events that have led to the May 8, 2014 hearing on 85 Parnassus Road. None of the facts presented then regarding the detriment of intensifying the impact of a habitable use structure (which the ZAB approved previously in large part because of Applicant deceptions as detailed at the May 8th hearing) into a full-fledged Accessory Dwelling unit, have changed.1 (Findings to Deny based on this detriment are attached.) As we demonstrated then, the Applicants have, for three and a half years, illegally constructed, maintained and (since the ZAB’s granting an AUP in 2012), defied ZAB imposed Conditions and Code Enforcement’s Notices of Violations. Other than issue the letters, there has been no enforcement of Letters of Violation or Use Permit Conditions.2

Consequently Jenny Chatman and Russell Barnett, the most impacted neighbors, as well as the other surrounding neighbors, appeal to you, the ZAB, to solve this problem.

Rationale to Deny the Application and Grant this Appeal: The Detriment of this Addition and Residential Use Should Fall on the Applicant, Not the Neighbors.

We again ask you to view the facts in this appeal, as though the applicants brought you this proposal in the manner directed by the City of Berkeley. Before proceeding with

1 The transcript of that hearing is attached for your convenience. 2 While the file is replete with evidence of applicants’ intentional violations, this appeal is directed at the failure of policy, not at them. Given that they have been able to proceed to construct and use their addition as they wish, without regard to City rules and detriment to their neighbors, why shouldn’t they continue as they have, do as they wish, ask forgiveness, never permission?

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construction, fully disclose their intention to enlarge a non-conforming garage and transform it into a much larger, rental Accessory Dwelling Unit.3

Had Applicants provided factually correct information from the outset that the current garage and proposed addition were non-conforming (in that they were less than four feet from the property line), that they intended it to be used as a short-term rental dwelling unit with a full kitchen and shower, and that it was 5’ from the rear property line where 20’ is required, it would not have been approved ‘over the counter.’4 Instead, they chose to falsify their Application and completely bypass public input on their planned ADU.5 Had Applicants been forthright, instead of cynically manipulating the process, their intended ADU proposal would have

1.) Required abutting and confronting neighbor sign-off; 2 .) A public hearing before you; along with, 3.) An analysis of the detriment.

This analysis, we believe, would have required that if the ZAB approved the ADU, you would have required that it be located in a manner to cause the least detriment to the neighbors. Applicants have a large, double lot, the garage’s location is already non-conforming in that it is less than four feet from the property line, directly south and immediately adjacent to the Jenny and Russ’s rear yard. The recommendation would (even if neighbors objected to the idea of a unit) be that any extensions be placed to the south of the existing garage into Applicants’ large double lot, instead of increasing the impact on the adjacent neighbors. Exhibits, and Diagrams, attached show both the proximity of the active portions of the addition to Jenny and Russ’ rear yard, and expansive size of Applicant’s yard. Since the plumbing, new electricity, porches, and door openings had not yet been constructed; this recommendation would be both reasonable and feasible.

Staff recommends, notwithstanding the evidence presented at the May 8the hearing, the revelations regarding Applicants deception from the outset, deceptions which prevented the ZAB from accurately assessing detriment when granting the habitable use permit in 2012, that you still find no detriment from the intensification of an already intrusive structure and use. Staff recommends that you focus only on legalizing what is there and by so doing, grant the previously illegally obtained residential status. The problem with doing that is that Jenny and Russ, and the surrounding neighbors who support them, have followed all the rules, but they, alone, must bear the detriment caused by an addition that Applicants alone will enjoy and profit from. (Rebuttal to Staff Findings Attached)

3 This IS exactly what Applicants intended, notwithstanding that the December 10, 2010 building permit, requested adding a ‘1/2 bath inside the garage’ adding no additional square footage, applicants from the outset intended to create an expanded footprint, full bathroom and kitchen, rental unit, four feet from Jenny and Russ’s back yard. Their intention is further evidenced by the fact that less than a month after the ½ bath received Plumbing Approval, applicants immediately constructed the full kitchen, shower, etc. and in January, 2011 advertised their new rental unit for $500/week. Ad attached in Exhibits)! 4 These disclosures would have triggered both a property line survey and a shadow study. 5 See attached contemporaneous writing from Jenny Chatman in which Mona states that she knew Jenny wouldn’t like this addition, and chose to apply piecemeal.

2

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Staff’s recommendation implies that the ZAB ignore Applicants’ multiple, repeated, and intentional violations; both before the granting of the AUP for habitable use, and deliberate violations of the Conditions imposed in that AUP. By so doing, the ZAB would reinforce the belief by some that there is no downside to ‘cleverly’6 skirting requirements to escape review by Planning and Building, DRC, and the public. Neighbors who rely on the codes and enforcement of them will unfairly bear the detriment caused by the illegally constructed additions and uses.

As our evidence both oral and written showed, granting approval of Applicants’ callous, knowing and repeated acts is tantamount to certifying, unpermitted construction, failure to abate specific notices and Conditions designed to mitigate the negative impact of approved projects. To do so would be to allow Applicants’ behavior to be a blueprint for contravening Zoning rules and ZAB decisions.

The Detriment to Jenny and Russ (and the neighbors that support them) are real, and had the process been correctly followed, avoidable

SUN, SHADOWS, VIEWS Because of the topography of their property, and the design of their home, the usable, sunny portion of Jenny and Russ’ back yard is concentrated at the South end of their property; pre- existing neighboring trees shade the remaining North end. (See Exhibits, Diagram) Their entire house is oriented to, including their kitchen, family room and deck, the Southern yard. The Southern sun falls directly there. Because of the location of the addition, over half of their available Southern sun is lost. That part of the yard is in shade is now in shade during winter and spring days and Indian summer (fall) days.

THE BATHROOM ADDITION IS ‘IN’ JENNY AND RUSS’ BACK YARD: THEY CANNOT ESCAPE THE NOISE, LACK OF PRIVACY

The rear yards of 85 Parnassus and 10 E. Parnassus Court abut; the required setback of the addition at their shared property line should have been set at 20’. It is only a technicality, caused by the unusual shapes of both properties, that the 20’ setback was not applied in this case. Back yards are THE place where people reasonably expect to privately and quietly relax. Instead, for Jenny and Russ, being in their rear yard, means direct exposure to all bathroom noises—shower, toilet, laundry -- of their neighbor. Creating a dwelling and locating the most ‘active’ part 4’ from Jenny and Russ’ rear yard, must be must be evaluated from the perspective of the de facto situation. That is, under the “circumstances of [this] case” (Use Permit Findings 23B.32.040) the proximity of this addition and the detriment of intensifying the impact of this addition are that this unit must be found to be detrimental. Moving the addition to the front of the garage would avoid this.

6 Commissioner O’Keefe’s characterization of Applicants’ manipulation of the existing grade to exceed allowable height.

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“Fool me once…” Stringent Conditions, Giving Applicants the “Benefit of the Doubt” WERE TRIED AND FAILED.

In February 2012, the ZAB, after reading the objections (based on Applicants’ circumvention of the permit process, falsifying documents, and detriment), of neighbors to legalizing the addition as a habitable accessory structure; granted the permit but heavily conditioned it to limit the detriment to neighbors, and ensured (if the Conditions were followed) that Applicant would not convert the building to a full residential unit, one that could be rented. Applicants did not follow any of those conditions intended to protect the neighbors!

1. Size, Length and Height: They maintained an attached structure that increased the length by over 4’ (Staff Report and Conditions stated it would be removed); they created additional length, beyond that permitted, and, by narrowing the allowed roof pitch, increased the height by almost a foot.

2. Use: They disregarded conditions that required removal of the kitchen, shower. They failed to record, as the ZAB required, a Deed Restriction containing the language preventing installation and/or use of a full kitchen, shower.

Today, the roof exceeds allowable height, and the ‘garage’ continues to be occupied as a full residential unit.

Mona Nichols’ Testimony on May 8th That She Abided by Every Request the City Has Made Since the City Told to Remove Illegal Shower is Not True: Notices of Violation; Deputy Planning Director Demands to Comply Immediately with Conditions of AUP Were Ignored.

Applicant Mona Nichols testified at the May 2014 hearing that after being advised of her failure to abide by the Conditions, she immediately complied. Not true. After several months of informal Zoning requests to comply failed, in November 2012, Patrick Emmons inspected the ‘accessory’ unit. His findings of numerous physical violations and unpermitted work is documented in a Notice of Violation. Requirements to abate and file permits were included. (Attached under Historic Pattern of Code Violations)

Then, in April, 2013, Wendy Cosin, Deputy Planning Director sent a second letter formally notifying the Nichols that “although you have a pending application for an AUP to create an accessory dwelling unit…Given the historic pattern of code violations described below, administrative citations will be issued if the shower and kitchen are determined to be operable.” To make the expected action unequivocal, Ms. Cosin closed with this language: “If we determine that the shower does not remain sheet rocked or otherwise inoperable, and/or if the structure is used as a dwelling unit, administrative penalties can be as high as $1,000. You may be cited for a separate violation for each day and penalties may be increased daily.” (Attached under Historic Pattern of Code Violations)

Applicant ignored that letter.

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That letter by Deputy Planning Director, Wendy Cosin remains the last written City position regarding the impermissible construction of the kitchen and bathroom and use of the garage as a residence. Yet between April 2013 and today, the impermissible construction and use as a dwelling unit continues unabated.

Even if this Application is granted; It Should not be allowed as a Rental as there is Already an Occupied Rental on Site Not only have Applicants, in defiance of their Use Permit and City Notices, converted the accessory unit to an Accessory Dwelling Unit and advertised it for rent, they also have a full rental within their house. From the ads, this rental is either a prohibited Bed and Breakfast or a 2nd impermissible accessory dwelling unit. (See attached ads.)

CONCLUSION As stated in this letter, and all prior appeals and letters to the City (herein incorporated by reference), the 85 Parnassus application presents a serious policy and ethical problem which we request the ZAB to solve. The structure’s use and location have, since 2011, been illegal and constitute a detriment to the immediate neighbors. There is no enforcement. Thus the detriment continues and will continue unless the ZAB acts.

Very truly yours,

RENA RICKLES

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STATEMENT OF THE CASE

• Findings

• Rebuttal to Staff Findings

• This is NOT a “by-right” Project

• Interior Rental IS an Accessory Dwelling Unit

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RENA RICKLES

Attorney at Law 1970 BROADWAY, SUITE 1200

OAKLAND, CA 94612 TEL: (510) 452-1600 ~ FAX: (510) 451-4115

EMAIL: rena@rickleslaw.com August 20, 2014 Claudine Asbagh, Planner Carol Johnson, Zoning Manager Planning Division; City of Berkeley 2120 Milvia Street Berkeley, CA 94704 Re: Revised Findings to Support APPEAL (DENY the Administrative Use Permit (“AUP “) for an Accessory Dwelling Unit (“ADU”) for 85 Parnassus) Dear Ms. Johnson and Ms. Asbagh: This letter is written on behalf of my clients, Jennifer Chatman and Russell Barnett, and all Appellants to above captioned matter, to assist you in providing Findings for Granting the Appeal and Denying the Application for the ADU. It is further our understanding that the Findings are to be based upon all of the facts contained in the Administrative Record including testimony, writings, City Documents and exhibits submitted. The below provided Findings are based upon the requirements under General Use Permit Required Findings, and the requirements for the R-1 District, the Hillside Overlay Districts, and other requirements of the Zoning Ordinances. I request that these proposed Findings be forwarded to the entire Zoning Adjustments Board in order that they might assist them as well as assisting you in drafting the proposed findings that ZAB requested at the May 8, 2014 meeting. 1 General Detriment Findings The determination to approve or deny an (additional) dwelling unit must be based on the requirements of the General Use Permit (23B.32.040) as well as those in the R-1 and H-Overlay Sections. The requirements of the General Use Permit findings are as follows:

Pursuant to Berkeley Municipal Code Section 23B.32.040, the Zoning Adjustments Board finds that the proposed project, under the circumstances of the particular case existing at the time at which the application is granted, will [or will not] be detrimental to the health, safety, peace, morals, comfort, or

1 In your email of August 14, 2014, you stated that Staff would not provide the above requested Findings. In my email to you on August 18, 2014, I provided our analysis as to why said findings should (attached) be provided by Staff. These Findings are provided to you directly in the event that you reverse your prior position.

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general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties. (23B.32.040, emphasis supplied).

The language in bold, “under the circumstances of the particular case existing at the time at which the application is granted,” allows –if not requires– a subjective standard of analysis: an analysis of detriment must be from the viewpoint of the physical impact on the adjacent properties. With this in mind, the proposed Findings for Denial follow: 2 DETRIMENT FINDINGS Specific to Zoning District and Development/Parking Requirements:

Violation of Density/Intensity: Under the Definitions of the Zoning Ordinance that most closely describe the characteristics of the unit within 85 Parnassus, there is already an Accessory Dwelling Unit on-site within the main building. Therefore, granting an additional ADU, rental or non-rental, will create a level of density prohibited in the R-1 zone (23D.16.040 Special Provisions: Development Standards for Accessory Dwelling Units).

• Fails to Meet Parking Requirements: The required parking (23D.16.080) for the interior ADU and the Exterior ADU is 3 spaces. Only two parking spaces are provided on the plans. Because this is a high-fire area and compounded by the street conditions in this location (Parnassus Road is an exceedingly narrow street and Campus Drive is a dead end), the Findings required for a parking waiver under 23D.16.090 cannot be made.

• Fails to Meet the Required Findings, under 23E.96.090, to reduce the rear yard

setback from 20’ to 4’: Under the H-Overlay District, a finding to support any yard reduction “shall” be consistent with the purposes of the H District. This cannot be done here, in that the Purposes of the H District state that modifications to yard requirements are allowed “when justified because of steep topography, irregular lot patterns, unusual street conditions, or other special aspects of the Hillside District Area.” None of the stated justifications required by 23E.96.090 (steep topography, irregular lot patterns, or any special aspect of the Hillside District Area) apply to the requested reduction of the 20’ required setback.

• The Location of the ‘Active’ Part of the ADU Only 4 Feet from Appellants’ Rear

Yard Creates Unacceptable Detriment by Placing the Full Impact of the Intensified Use on the Neighbors/Appellants, not the Applicant: The location of the full bathroom only 4’ from the active outdoor space of the Appellants, and the associated increased noise and activity, create an unreasonable detriment for Appellants. The siting of the full bath/shower places the full impact of the intensification of this use on the Appellants and shields the impact of this use, because of the distance from Applicants’ house, from the Applicant.

• Applicant Knew that the Location of this Addition Would be Objectionable to

Appellants: When asked by Appellants why she didn’t advise them of this addition,

2 The majority of the ZAB found, based upon the facts presented that the interior rental functioned as a rental unit and specifically found that it was not ‘just a rental of rooms within a house.’

2

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REBUTTAL TO STAFF REPORT FINDINGS

This ‘Rebuttal to Staff Report Findings’ is directed to the Staff Report prepared for the May 8, 2014 ZAB hearing.1

Staff’s Administrative Use Permit Findings (p. 7, Staff Report May 8) are not Supported by the Facts in the Record.

• Height: “The proposed Accessory Dwelling Unit will have an average height of 10’2”. FALSE: The average height is not less than 10'2' but exceeds 10’4.25”; the existing height exceeds what was granted in the last AUP. The roof was supposed to be built, as drawn, as 4 and 12 but instead was built as 7.2 and 12, significantly higher and wider than allowed and then depicted in Applicants’ submittal. The additional height makes a difference in loss of Southern sunlight.

• "[It] is not expected to impact direct sunlight experienced by adjacent properties". FALSE: Appellants submitted a shadow study to the City demonstrating significant loss of southern sunlight. The addition cuts off about half of the remaining Southern sun coming into the rear yard of 10 E. Parnassus. The shadow study submitted shows a loss of sunlight during the day hours of winter, spring and fall. A comparison of the sunlight before and after the addition (photo of children in pool in rear yard before the addition) and that available now, shows that this addition created a real loss of sunlight.

• "Building separation between neighboring properties mitigates detriment". FALSE: The distance is now less than 4' where at least 4' and 20' are required. This distance is squarely in the rear yard2 of the Barnett’s and denies the Halpern’s of 15 of the 20 feet required for a rear yard offset. Since the building is within four (4) feet of the property line of 10 E. Parnassus’ rear yard, the detriment should be analyzed from a rear yard of 20’ baseline perspective. From that perspective, the close proximity of the active portions of the addition constitute an unreasonable detriment in terms of loss quiet enjoyment and expectations of privacy in the rear yard. To allow that intrusion to be intensified by allowing the creation of a dwelling unit just four (4) feet from the rear yard of 10 E. Parnassus Ct, creates an additional and unnecessary detriment—a detriment that could have been prevented had Applicants followed the City processes.

• "Won't block views of significant features". FALSE: Garage addition blocks Barnett’s south bay view, including city lights, the bay, and San Mateo Bridge, from their second story windows. Moreover, Staff has no evidence upon which to base this Finding in that Staff did not visit the interior of 10 E. Parnassus Court.

Staff concludes that the intensification of use from habitable to dwelling will have a "Limited impact on privacy": FALSE. The entire unit is within four feet of the Barnett's rear yard and five feet of the Halpern’s yard. Other alternative sites are readily available given the size of the Nichols lot, including placing the addition to the south of the garage, something that could easily have been done had the Applicants not created an illegal ( without permits) porch, and French door entry at that location. The built up grade and the location places a full living unit within four feet of the Barnett's rear yard and 5’ of the Halperin’s rear yard, where 20' are required cannot under the circumstances of this case be considered non-detrimental.

1 In an email, Carol Johnson stated that “Staff has not changed their recommendation” [from May 8th], therefore, this rebuttal assumes that the Staff Findings will also not change. If in the Staff Report for August 28, 2014, the Staff Findings do change, will provide a rebuttal to those new Findings. 2 While technically a 'side' yard, it is in fact the Rear Yard of the Barnett's, a condition requiring a 20' setback.

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The Decision of Non-Detriment Cannot be Supported because 'Detriment' was not Evaluated in the Correct Sequence; but Instead was Evaluated in a Piecemeal, Stove Pipe Analysis which Ignored the Applicant's Panoply of Repeated Misrepresentation of Material Facts, at Every Step of the Process—Acts which, if Considered, Mandate a Different Result.

Applicant furnished false information to the City from the onset of this process in an [so far successful] effort to evade discretionary review of detriment, to get this AUP granted in isolation as opposed to in conjunction with the record as a whole. As such the actual detriment to the neighborhood was incorrectly disregarded as irrelevant.

Applicant's false information is material to this decision in that it enabled the Nichols to evade discretionary review and notice to neighbors, and prevented neighbors from being able to show, prior to the structure's completion that there was a reasonable alternative that would not have been detrimental to adjoining neighbors: Applicant’s record of falsified information includes:3

• 09/09/10: Permit request for ½ bath in existing garage; $5,000 Valuation • 10/10/2010: "Creating toilet/sink outside my garage instead of inside." "Revision does not increase

square footage"; obvious untruth. Had Applicant stated the facts as they were—an increase in square footage well within the property line, zoning would have had to review.4

• 11/02/10 Submitted Plans show only ½ bath; 12'3" above grade. • 02/28/2011. Falsely denies No. 7. Whether project is "within 2 feet from or within a required

setback." New project at least within 2' of required setback.

Finally Because of Applicants Continued Pattern of Violation of Use Permit Conditions, There is No Assurance that Applicants Comply with the Stringent Setback Conditions Set Out in AUP.

Significant to the pattern of Applicant is their repeated misstatements and material omissions regarding setbacks. Applicant has been even more difficult regarding ‘spite’ plantings on the property line. Because of these actions, granting the AUP for an even greater intrusion, even as conditioned provides no security for the immediate neighbors.

3 This is a partial list.

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Applicant stated in December, 2010 that because of Jenny and Russell’s prior complaints of noise from the (illegally) converted garage, “I knew you wouldn’t like it.” It was the Applicants’ choice to place the addition where they did, so it wouldn’t disrupt their lives and their own large backyard. Because the applicants knew very well the use they intended for the “garage.” All of the evidence in the record shows that, from the onset, this structure was intended to be a dwelling unit. It would be unreasonable detriment to allow Applicant to increase the negative impact on their neighbors by granting the requested intensification of use. Moreover, the site plan of 85 Parnassus and 10 E. Parnassus Court show that there are ample alternate locations on the large double lot to site and locate an additional dwelling unit.

• The One Seeking the Benefit of New Construction or Intensification of Use

Should, Whenever Reasonable to do so, Bear the Negative Impacts: Not only the Applicant, but also the ZAB recognized that the addition of the shower at its requested location would be a detriment as evidenced by the ZAB’s Condition in granting the Use Permit for Habitable Space which required that the shower be removed in its decision to grant the application for habitable space in the AUP of April 2012”].

These proposed findings are based on the facts in the record, evidence drawn from all of the written material; as well as public, applicant, appellant and ZAB members’ testimony during the hearing and prior to their correct decision by a 9-0 vote to affirm the appeal and deny the application. We hope that these proposed finding are of assistance to you in drafting and presenting Staff’s proposed findings to support the unanimous decision of ZAB at the prior hearing to grant the Appeal and Deny the underlying AUP. Of course if you have any questions, please feel free to contact me.

Very truly yours, Rena Rickles CC: William (Bill) Berland Jennifer Chatman, Russell Barnett Eric Angstadt Zach Cowan

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THE APPLICATION TO CONVERT THE GARAGE AT 85 PARNASSSUS

TO AN ADU DOES NOT QUALIFY AS ‘BY-RIGHT’

QUESTION: UNDER THE FACTS OF THIS CASE, IS THE CONVERSION FROM HABITABLE SPACE TO AN ACCESSORY DWELLING UNIT (ADU), ALLOWED BY RIGHT?

ISSUE: DO ANY OF ZONING ORDINANCES EITHER POINTED OUT BY A ZAB MEMBER OR IN THE ZONING ORDINANCES THEMSELVES, REQUIRE THAT UNDER THE FACTS OF THIS CASE, THE CONVERSION IS BY RIGHT?

ANALYSIS: This is an application to convert habitable space to an ADU with a 5’ foot rear yard setback where, under the Zoning Ordinance Development Standards, a 20’ setback is required.

Chapter 23D.08 Accessory Buildings and Structures sets out the circumstances and approval levels for ADU’s and conversions to ADUs.

When a conversion is allowed by right:

A. An accessory building constructed or altered so as to contain an accessory dwelling unit which satisfies the requirements of this code and the requirements of the zoning district where it is located, including adherence to development standards applicable to the main building, is permitted by right. Other than an accessory dwelling unit as described above, no accessory building shall be constructed or altered so as to contain habitable space except as authorized by an AUP. No such accessory building may be rented, contain cooking facilities or be used as a dwelling unit or accessory dwelling unit, except as authorized by a Use Permit and all other requirements applicable to a dwelling unit in the District in which it is located are satisfied. (23D.08.Note A.)

Since this is an application to convert to an ADU that does not satisfy the requirements of this code and the R-1 District, this conversion is not allowed by right.

When a conversion to or a construction of an ADU requires either an ADU or a Use Permit

23D.08.010 Accessory Buildings and Structures May Exceed Limits with a Use Permit

A. Accessory Structure: By right if meet all height, setback limits [i.e. not a dwelling unit].

B. Accessory Dwelling Unit: an accessory structure or accessory building which does not comply with the height limits, minimum setback distances, site location and/or maximum length requirements of this chapter, except for the height limit in Section 23D.08.020.C, subject to a finding that the proposed accessory building or enclosed accessory structure will not be detrimental to the light, air, privacy and view of adjacent properties. (Ord. 6854-NS § 2 (part), 2005: Ord.

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CONCLUSION:

Therefore, this application cannot be treated as ‘by right.’

A conversion to an ADU is permitted by right only if it meets the requirements of the district where it is located. Since this application requests a modification from the requirements of the R-1 District from 20’ to 5’, it is not allowed by right and does require a Use Permit. (23D.08 Note A, 23D.16.070D, and 23D.08.010)

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IN-HOUSE RENTAL SHOULD COUNT AS AN ACCESSORY UNIT

The in-house rental unit has the following uncontroverted characteristics: (See Ad for Rental)

• Separate entrance • Full bathroom • Main house kitchen is not accessable or shared • Kitchen appliances: toasteroven, microwave, hot pot • Door to main house from unit, but not allowed to access to main house • “not a shared housing” • No common area between unit and house • Functions as a 2nd unit even though rented out on short-term basis23D.040

Relevant Zoning Ordinance Sections

• Special provisions: Development Standards for Accessory Dwelling Units 23.D.16.040 (when within main house) Separate entrance E. 3. Detached accessory building shall conform to the setbacks of 23D.16.070D to be allowed by right. Any reduction in setbacks is subject to review and approval subject to an AUP

• Exempted Accessory Uses A. Renting of rooms to 4 or fewer persons not living as a household, permitted by right

provided (all must be met to be exempted) --Rental is 14 days or more --Rooms are fully integrated within the dwelling such as they has interior access to the rest of the dwelling unit. (access must be allowed, not just available) --do not have separate kitchens --do not have separate street addresses --requirement for off-street parking are met

Because, rental period is less than 14 days, rooms are not integrated, does have separate kitchen, unit within the main house are not exempted Accessory Uses.

• Multiple Dwelling Use: Building or group of buildings, or portion of a building used or designed as three (3) or more dwelling units.

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“HISTORIC PATTERN OF CODE VIOLATIONS1”

• Chronology of “Historic Pattern of Code Violations”

• 8-11-2010 Building Application

• 8-11-2010 Zoning Application

• 8-18-2010 & 8-23-2010 Corrections Requested and “Response”

• 10-15-2010 Revised Application

• AUP Application stating “Not within 2’ of setbacks,” project use intentionally left blank

• Plans showing “closet,” that becomes “shower”

• List of Inspections and Permits

• 11-19-2012 Emmons Notice of Violation(s)

• 4-8-2013 Cosin Letter with Highlights

1 Quoted from 4-8-2013 Letter from Wendy Cosin to Applicants

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85 Parnassus Applicant Actions City Actions August 2010: Applicants apply for building permit to add toilet and sink inside garage:

• Application fails to disclose years of unpermitted upgrades to garage and existing conditions of garage including new electrical, sheet rock, tiled floors, added windows, replaced garage door with sliding glass doors, expanded footprint with west facing porch, attached additional shed roof five feet to the east;

• Applicants also fail to provide a survey or disclose that building is less than four feet from side yard offset. They simply insert a 4 foot measurement on to their garage drawing with no proof. Applicant agrees to provide covered parking.

September 2010: City requires at least one covered parking spot.

October 2010: Applicants apply for a revision to permit of 9/10:

• Revised application submitted (w/o required covered parking)

• Applicants check boxes confirming that the “revision does not increase building square footage,” “ that there is “no change to scope of project,” and the additional dollar cost of the revision is $0. Yet toilet and sink will now be “located outside my garage instead of inside.”

• No survey provided, no disclosure that existing garage is already non-conforming, as it is less than four feet from side yard, and proposed extension to

November 2010:

• City planner approves building permit to “Create partial bath in garage – toilet and sink” (what permit still says), with no survey required. No neighbor notification required, no AUP, no requirement to draw in correct grade.

• No follow-up on Planning Conditions

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garage will encroach further into four-foot setback.

• No disclosure that garage addition will increase average roof height to over 10’ – plans represent garage as though it exists on a flat lot when in fact, lot is sloping with approximately 5 feet of slope from driveway entrance to west side of garage.

December 2010: Applicants hire unlicensed workers to construct garage extension. On first day of building, trenches dug for three plumbing lines: toilet, sink, and shower, for which no permit exists.

December 14, 2010: City inspector fails applicants on plumbing inspection because of unpermitted shower line, and requires applicants to pour cement down shower drain.

January 5, 2011: Applicants call for final plumbing inspection:

• fail to remove shower line, • have built the garage extension

higher than specified on drawings.

January 5, 2011: Plumbing Finlaed.

January 6, 2011-Feb. 2011: Garage listed for rent, shower and kitchen added:

• Applicants list garage “cottage” for rent with “full bath” and kitchen for $650 per week.

• Applicants install tiled shower in garage extension.

• Applicants install kitchen in garage.

March 2011:

• City inspects garage and requires applicants to remove shower or apply for AUP for habitable space.

• Only after eight surrounding neighbors complain to City does City require applicants to provide a survey,

• Survey shows that existing garage and garage addition encroach on the 4-foot side yard offset.

April 2011: • Applicants apply for AUP to

“legalize shower.” • Once survey shows that the

building does not meet 4-foot side yard offset, applicants

March 2011-April 2012 NO CITY ACTION

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revise AUP to apply for habitable space.

• Shower and kitchen not removed, people living in garage.

June 2011: • Applicants manipulate grade

surrounding lowest point of garage immediately after neighbors relay to City Planner that garage roof height is excessive based on Moran survey.

April 2012: After 5-6 delays, ZAB hears case and approves habitable space with conditions including:

• No shower • No kitchen • Remove rear shed roof • Requires deed restriction

precluding renting out of garage

September 2011-September 2012:

• Applicants never remove shower • Applicants never remove kitchen • Applicants fail to file correct

deed restriction until pressured by neighbor complaints

• Applicants tell planner they have removed shed roof but have not done so and fail to do so until pressured by neighbor complaints

• People living in garage

November 2012 After additional neighbor complaints, city inspects garage and cites Applicants for various violations including unpermitted work, illegal shower, and kitchen.

December 2012

• Nichols apply for ADU to covert garage to rental property.

• Shower and kitchen remain in garage.

• People continue living in garage.

April 2013 City (Wendy Cosin) sends violation letter stating that, even though Applicants have applied for ADU, they must remove the shower and kitchen and no one can live in garage and that if they violate this requirement, the City can fine them.

January 2012-May 2014

• Shower remains in garage • Kitchen remains in garage • People continue living in garage

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Planning and Development Department

. April 8, 2013

Ed and Mona Nichols 85 Parnassus Road Berkeley, CA 94708

Dear Mr. and Mrs. Nichols:

I continue to receive complaints that the building for which you received an Administrative Use Permit (AUP) to use as habitable space with a half-bath (toilet and sink) is being used as a dwelling unit, and that it has an operational shower and kitchen. I mentioned this to Mona via e-mail today and she stated that the shower remains blocked off. Regardless, I am sending you this letter to formally notify you that if the shower does not remain sheet rocked or otherwise inoperable, and/or if the structure is used as a dwelling unit prior to City approval for such use you will be cited for violation of the Berkeley Municipal Code Section 23A.12.010.

23A.12.010 Uses and Buildings Must Comply with Ordinance No land or building shall be used, or designed to be used, nor shall any new building or structure be constructed and no existing building or structure shall be moved, altered, enlarged, structurally altered, reduced, reconstructed or demolished except as permitted by this Ordinance, either as of right or by permit.

At the last inspection on November 5, 2012, the building inspector reported that the kitchen sink and shower were still in existence, but that you rendered them inoperable by covering the top of the sink with a piece of plywood and installing sheetrock over the shower. When we last spoke in December 2012 about your proposal to convert the building into an accessory dwelling unit with a shower and kitchen, I stated that you could not use the building as a dwelling unit until a new AUP was approved and that the shower and .kitchen must remain inoperable.

AUP No. 11-20000043, approved by the Zoning Adjustments Board and in effect on May 2, 2012, allowed conversion of a garage into an accessory building with habitable space; the submitted plans showed the addition of a half bath with a toilet and sink. The plans and other project representations regarding the proposed structure or manner of operation are deemed conditions of approval. If you are continuing to use the structure as a dwelling unit and if the

2118 Milvia Street, 3n1 Floor Berkeley, CA 94704 Tel: 510.981-7400 Fax: 510 981-7470 TDD:510 981-7474 E-mail: planning@ci.berkeley.ca.us

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85 Parnassus April 8, 2013

shower and kitchen are operational, you are violating the approved AUP. In addition, a condition of approval required that you record a deed restriction as follows (emphasis added).

Prior to issuance of a building permit, all owners of record of the subject property shall sign and record with the Alameda County Clerk-Recorder a "Notice of Limitation on Use of Property" (available from Land Use Planning Division) and provide a recorded copy thereof to the project planner. This Notice of Limitation shall stipulate that no part of this accessory building shall be used or converted to use as a dwelling unit unless and until permission is requested of the City of Berkeley and authorized by a Use Permit, Administrative Use Permit, or Zoning Certificate, whichever is applicable. This limitation shall include the explicit acknowledgment that no shower, tub, or kitchen facilities may be installed in this habitable accessory building. This limitation may not be revised or removed from this property without the prior written permission of the Zoning Officer of the City of Berkeley.

The record is clear that no shower or kitchen are allowed and that the building may not be used as a dwelling unit unless approved by the City. Although you have a pending application for an AUP to create an accessory dwelling unit, processing has been delayed for a variety of reasons, including an inadequate application and issues with the property line survey. Given the historic pattern of code violations described below, administrative citations will be issued if the shower and kitchen are determined to be operable.

• A building permit was issued on December 13, 2010 (No. 10-2968) to install a half­bath with a toilet and sink. During an inspection, it was discovered that a shower drain and vent were installed and a Correction Notice was issued. The shower drain and vent were noted as removed by a building inspector during a subsequent inspection on December 22, 2010.

• On February 16, 2011, a building inspector noted that an unpermitted shower was installed (including the previously removed shower drain and vent) plus a kitchen sink and counter. A Notice of Violation was issued, dated February 22, 2011, stating that the illegally installed construction must be removed or you would be cited. In response, you applied for AUP No. 11-20000043, to convert a garage into an accessory building with habitable space, including a half-bath with a toilet and sink. As described above, the AUP was approved, effective May 2, 2012.

• In response to continued complaints, the property was inspected on November 5, 2012. A Notice of Violation dated November 19, 2012 was issued, stating that the garage had been illegally converted to residential use without permits, including installing of a shower and sink/cabinets in the main room. Enforcement was not pursued because the building inspector reported that the kitchen sink and shower were rendered inoperable and because you applied for an AUP (AUP No. 12-200000158) on December 21, 2012 to create an accessory dwelling unit.

If we determine that the shower does not remain sheet rocked or otherwise inoperable, and/or if the structure is used as a dwelling unit, administrative penalties can be as high as $1,000. You may be cited for a separate violation for each day and penalties may be increased daily.

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85 Parnassus April 8, 2013

You will be cited if the above noted violations continue. I can be reached at 981-7402 if you have any questions.

Sincerely,

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STATEMENTS IN SUPPORT

Betsy Smith Statement

Dora Halperin Statement

Gary Parsons Statement

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August 19, 2014

Dear ZAB,

I live at 95 Parnassus and have lived there for over 20 years. My house abuts the Nichols' property on the whole south side.

I cannot be at the meeting on August 28, 2014 as I am visiting family on the east coast but I wanted you to know that I support the appeal and oppose the ADU at 85 Parnassus Road. This is why:

Conversion from habitable space to a full dwelling unit with a bath only 4’ feet from the only usable portion of a back yard is detrimental. It makes the dwelling Jenny and Russ’. But they are powerless to control the impact on them. They can’t say to the tenant inhabiting the garage-apartment, “you are being too loud.” They get none of the benefits, only lack of control over the detriments.

Jenny, Russ, I and all neighbors who support the appeal are neighbors who get along. We do not yell at obvious violations of our neighbors. This case is different because that violation was intentional, avoidable, and causes real detriment. When I came home from a trip abroad in 2007, instead of the old broken down garage that had been there before, I saw a larger building that had been converted. The new building had a patio, windows and French doors, and it no longer had space for cars. Instead, the kids used it as a teenage party place. None of us complained to the City. We all also knew that the Nichols had a tenant with separate space in their main house, its own entrance, full bath, and we did not complain to the City.

But this is different. This is unfair to put the burden of the detriment onto the neighbors who will gain no benefit from the conversion. I believe that the Nichols’ ‘right’ to do what they want, ignoring City processes, ends when that construction and use creates avoidable detriment to their neighbors. If granted, we now have a triplex – with the surrounding neighbors, not the Nichols, experiencing the loss of privacy, and increased noise and congestion. Making this garage a permanent dwelling with the active part intentionally right in Jenny and Russ’ yard is unfair. Thank you very much.

Sincerely,

Elizabeth Smith

95 Parnassus Road

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Dear ZAB, I will not be able to attend the ZAB meeting. My husband Tulio and I are still appellants and request that because the extension to the garage at 85 Parnassus never had the required public and neighbor comment prior to construction, that if approved as a residential structure, it should be removed entirely or moved to the south facing end of the existing garage so that it isn't a detriment to us and especially Jenny and Russ. And, I also wanted the ZAB to know that I have not changed my mind about this issue. I still feel that an apartment glued to my back fence (5 feet rather than the required 20 feet) is an outrage. As for it being a rental, I do oppose that because there is already a rental on the property; surely two rentals are not allowed. Since all of my letters and meetings with the City have not changed a thing, I hope that you, the ZAB, can fix these problems. Jenny and Russell are the best neighbors anybody could wish for. I also hope the city will come to a decision that gives them back their privacy, lost Southern sun, and bedroom view. Best regards, Dora Halperin Appellant 1498 Campus Drive Berkeley, CA 94708

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The following is a statement written by Gary Earl Parsons, Architect. The text reiterates points expressed at the May 8th, 2014 ZAB hearing. Mr. Parsons could not be here for the August 28, 2014 meeting as he is traveling but took special pains to make sure that the following points were heard again in the context of the ongoing hearing and read into the record.

August 16, 2014

Dear Zoning and Adjustment Board Members,

I am an architect and a Berkeley native, and I have practiced in the Bay Area for more than 30 years; I am also the architect who worked with Jenny and Russ on the addition to their house that took place while some of the unpermitted construction was going on next door. Over the months I witnessed the considerable efforts Jenny, Russ and their surrounding neighbors made to get the City to pay attention and address the problems at 85 Parnassus.

For their addition, Jenny and Russell provided the City with clear documents that accurately and fully disclosed what they wanted to do. Nothing was hidden or omitted. Neighbor signatures were obtained, the AUP was granted; the process was transparent and went the way it should go.

Applicants at 85 Parnassus Had a Cynical Disrespect for Your Process

At the same time, at the Nichols home next door, something altogether different was happening. An incremental and, in my view, cynical disrespect for your process was playing out. This process was characterized by misrepresentation, unclear and inaccurate documentation, and scofflaw behavior when illegal construction was uncovered. As well as a general attitude that neighbors don’t count, and that it is better to ask for forgiveness than it is to ask permission.

It is My Job to Help Clients See the Value of the City Process

As a building professional I have to do a lot of client education concerning city processes. Most residential clients are lay people and most have no experience with city permissions processes. I often encounter clients who have heard that the planning and permitting process is onerous and Byzantine. It's my job to show them that it's not, that the rules are clear and easy to follow, that every requirement is there for an important reason, and that the rules are applied fairly. I routinely dissuade clients from thoughts of building their project without permits.

Nichols Knew That Their Misrepresentations Would Allow Them to Proceed, Without Review, To Construct an Addition and Intensify Use They Knew Would Negatively Impact Neighbors

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But in this case we have an example of owners playing the game from the other direction. So far they have disregarded and manipulated the process in order to achieve their aims; they have reaped their gains based on intentional misrepresentations. They knew when they applied for permit for a toilet and sink that they would actually be illegally creating a full bathroom and kitchen, new habitable rental space that would add to the footprint in a nonconforming manner. But because they specifically stated the opposite, they were permitted to construct, without any discretionary review, something they knew would unnecessarily negatively impact their neighbors and neighborhood.

What Can I Tell My Clients Now?

At the May hearing Mona told you that her actions were based on advice from a friend. Even if that were so, it would be a completely unacceptable excuse for trampling the city rules and her neighbors’ rights. If Mona and Edward Nichols continue to reap the benefits of their deception, what then do I tell my clients? Do I tell them to play by the rules? Do I tell them to address the process the way it's intended, transparently and honestly even though it may take longer and even if there might be compromises? What do I say when clients tell me that others have incrementally undermined the process to get what they want, even when it is expressly not allowed? What do I say when they suggest that it’s better to ask forgiveness than ask permission because the city won’t stand up for its ordinances?

Don’t Reverse the City’s Progress In Creating a Fair and Knowable Process: Don’t Let Applicants Reap the Gains of Their Intentional Disregard of City Process.

I think your decision tonight represents a very important precedent. What you decide tonight will have an impact on how future applicants choose to treat the process. The city has made great strides in the last couple of decades in terms of creating and maintaining a fair and knowable process; please don’t let that progress, and that process, be hijacked by people who seem to think that they are entitled to do whatever they wish.

Thank you very much,

Gary Earl Parsons, Architect 814 Camelia Street Berkeley, CA 94710 (510) 527-9272

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EXHIBITS

• May 8, 2014 Transcript of ZAB Meeting

• Proximity Map of 85 Parnassus St. & 10 Parnassus Ct.

• Google Earth Map of Subject Properties (Sun/Light)

• CraigsList ad from 8-20-2014 for Interior ADU

• Cal Rental ad for Exterior (“Garage”) ADU

• Picture of shower sent to prospective tenant February 2011

• Conversations between Jenny Chatman and Mona Nichols

• Picture of backyard before project

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I, KATHRYN ROBSON, a Certified Realtime Reporter, do

hereby certify that:

I am a subcontractor of TERI DARRENOUGUE, a Certified

Realtime Reporter who has been commissioned by the City of

Berkeley to transcribe, for the purposes of captioning, the

Berkeley Zoning Adjustments Board meetings.

Because of my inability to stop the proceedings and clarify

what exactly has been spoken or who has spoken, the transcript

may contain errors or may not be a verbatim transcription.

With the exceptions noted above, the captioning transcript

constitutes a true and correct report of the May 8, 2014 meeting

of the Berkeley Zoning Adjustments Board.

IN WITNESS WHEREOF, I have hereunder subscribed my hand on

May 8, 2014.

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>> M. Alvarez-Cohen: Welcome to the City of Berkeley Zoning Adjustments Board board meeting for Thursday, may 8, 2014. Staff let's start with roll call and ex parte disclosures. >> Chair Alvarez-Cohen. >> M. Alvarez-Cohen: Here, no ex parte. >> Board Member Pinkston. >> Here, I was given a phone call by the attorney -- >> Pull the Mike down, thank you. >> By the attorney, Rena Rickles, for the 85 Parnassus road item and we had a conversation. >> Thank you. Board Member Williams. >> Present, I also had a short conversation with Rena Rickles. >> About the Parnassus project, I assume. About the Parnassus project? >> Yes, I'm sorry, of course. >> Thank you. Board Member Allen. >> Present, no ex parte. I did not have a call from Rena Rickles. >> Thank you. Board Member O'Keefe. >> Present, no ex parte. I may have gotten a call from Rena Rickles but my 2-year-old dumped my cell phone in the toilet. [ Laughing ] >> might have been for the best, huh? Board Member Donaldson. Excuse me, I skipped Board Member Hahn. >> S. Hahn: Excuse me, present, and I had a brief conversation with the appellant, 85 Parnassus, Jenny Chatman. She was asked me about the procedure, how things operate here. That was the content of the conversation. And do you have the written forms for us to fill out so that we can provide the written record? >> Yes. >> S. Hahn: Could we receive those? >> Yes, we'll pass those out. Board member Donaldson. >> S. Donaldson: Present, ex parte conversation with Rena Rickles for about five minutes. She called about 85 Parnassus. >> Thank you. Board Member Pinto. >> Present, no ex parte. >> Thank you. And Board Member Tregub I understand is running late but should be here within the next half hour. >> Thank you. >> M. Alvarez-Cohen: Preliminary matters, staph staff announcements. Start us off, Aaron. >> A. Clough: Pleased to announce as you are aware, we have a new ZAB member, Denise Pinkston, I'll let her say a few words about who she is. >> D. Pinkston: Good evening. Over 25 years ago, I cut my teeth on public service by being on the City's budget commission and Planning Commission. And then I realized if I wanted to work that hard I needed to get paid I got my masters degree in city planning at Cal, worked for over 10 years in the county of Marin in advanced planning, current planning, code enforcement, building inspection. And then when I had kids left public service to become a consultant and now I'm a partner in a real estate development firm in San Francisco where I specialize in

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land use and entitlements. I've never left Cal since I got my bachelor's degree in history and masters in city planning. I think, I kind of have lived in four different apartment buildings, four houses, raised my kids here, got married in the rose garden. Now my family owns a home on pine avenue. And I love Berkeley, I love cities, I've devoted my professional volunteer life to making cities better places for people on the Planning Commission I was the early co-author of the City's first second unit ordinance, first inclusionary zoning ordinance, first iteration of the downtown plan that allowed density around transit in the '80s. And I am thrilled to be back in the volunteer capacity at the ZAB. Working on the kinds of issues that come to us. >> M. Alvarez-Cohen: Wow. Welcome. We're optimistic about your contributions. >> A. Sage: Thank you, very good to have you are. Another introduction, on my left if Sally Zarnowitz, she will be taking over May 22nd as acting ZAB secretary. And Sally, please take this opportunity to introduce yourself. >> S. Zarnowitz: Hi, I just want to introduce myself, I'm Sally are Czar know kits. Zarnowitz I know you worked with Greg and Aaron. I've been working with the land marks preservation commission for 2 1/2 years now. In terms of my background, I also have a B.A. in history and I have a masters in architecture. I've will be a licensed architect for 20-some years, I lost count. Before I worked for, I came to the City of Berkeley, I worked for the City of San Jose for over 12 years in zoning, building and code and in preservation. I'm looking forward to being your secretary for a couple of months. I'm looking forward to listening. >> M. Alvarez-Cohen: Welcome, looking forward to working with you. Go ahead, Sophie. >> S. Hahn: The history degree must be a disease. Because we haven't had a lot of correspondence with you, would it be possible for to you send an e-mail to all of us so wife your e-mail address? >> S. Zarnowitz: I absolutely intend to do that. >> S. Hahn: We're supposed to direct all correspondence to you. Thank you. >> S. Zarnowitz: Thank you. >> A. Sage: Some of you may be wondering, what the time line is on the rotation that we've been having. If at any point in the future we will have a permanent ZAB secretary. Yes, we will. We -- this relates to this. We have hired a land use planning manager, her name is KARA Johnson, she starts on Monday. And essentially our director has been wanting to get that position in place before deciding who would be the permanent ZAB secretary. Slash principal planner. He and Carol will be looking at possible restructuring within the organization. We'll figure out what the game plan is. Within 2 to 4 months we should have some one permanent in this position, that's my own personal opinion. Carol will come to a meeting soon to introduce herself to you. We're very excited to have her. Taking Debbie Sanderson's old position. She comes from the City of Concorde

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and prior to that she was the planning manager for Phoenix. She seems to have a lot of good experience. Last, on my announcements, I just want to let you know that we're working on the questions that came up at the last meeting. . You asked for a density bonus primer. It's possible that Leslie Mendoza will give you that when the stonefire project returns. That is our that will be coming before you. 2501 haste, Ken Sarakin project, we have been talking to the City Attorney's office about the process that, how this project is moving forward. How we'll handle that project. We talked about putting policy items on the agenda and have a discussion and refer it to the Planning Commission. The director thought that was a great idea. We are going to once Carol is onboard we'll figure out the best approach for. That I want to remind you that any ZAB member can put an item on the agenda. If there's a referral that you feel is important, that can be added to the agenda. That's it for announcements. >> M. Alvarez-Cohen: Thank you. Mark, you're up, items not agendized. >> Thank you, I'm mark Rhoades, Rhoades planning group. It's my pleasure to introduce to you Brian SHEEHY of future bar, my hope that you'll place our item on the consent calendar tonight. I want to give you a bit of a flavor of what is to come in the downtown just very briefly. >> I.J., Brian SHEEHY. >> M. Alvarez-Cohen: Anyone want to dance? >> Thank you, we're looking forward to your support. >> M. Alvarez-Cohen: Well done, thank you for that. Good showmanship. Lit's move to the consent calendar. Let me summarize the cards I have. I have many cards for item number 2. And so we're going to definitely listen to that one. Also item number 4, definitely keep that on the agenda. Any comments or suggestions? >> R. Allen: Are those on number 4 against? >> M. Alvarez-Cohen: There's one, at least one, I saw, that's neutral. And then we have one -- looks like this is ambiguous. I think we have to keep it. >> R. Allen: Okay. I'd like to put number 1, Harmon street, on consent. And number 3, 2271 Shattuck Avenue on consent. Both for approval. >> M. Alvarez-Cohen: Any comments or other suggestions? Yes? >> S. Hahn: I'll second that. >> M. Alvarez-Cohen: We have any other comments? Prakash? No. Item 1, 1517 Harmon street and Shattuck Avenue, voice vote, all in favor? >> Aye. >> M. Alvarez-Cohen: Anyone against? Anyone abstaining? All right, so 1517 Harmon Street, you're continued -- actually, your use permit modification is approved. 2271 Shattuck Avenue, also your use permit is approved, it's appealable to the City Council. >> M. Alvarez-Cohen: Number 2, 85 Parnassus road. Claudine, are you here? >> A. Sage: Claudine is not here, she has a family medical

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situation, was not able to make it tonight. I'll do my best to fill her shoes. This item is, has a somewhat complicated history. Many of you may be more familiar with it than I am. This has come to you before. Lieutenant basic chronology is that -- the basic chronology, an administrative use permit was approved in 2011. To basically convert an existing garage to what we call a habitable space containing a half bathroom. That appeal was -- excuse me, that AUP was appealed and the ZAB affirmed the Zoning Officer's approval of that permit and then in 2002, a notice of violation was issued by the City for this unauthorized work within the garage to basically install a shower, new kitchen sink and cabinets, to convert this into what is being requested tonight, what is being appealed tonight, which is an accessory dwelling unit. In October of last year, the second A. UP was approved to allow the accessory dwelling unit to be built, to legalize the work that had already happened. In a addition is being appealed, that is before you tonight. >> M. Alvarez-Cohen: Any questions for staff? >> S. Hahn: I have a procedural question. I have copies of one thing in my packet and no copies of something that I thought was supposed to be there. What I didn't have is the use permit that was issued for the habitable space. Was that supposed to be in the packet? Anyway, I feel like it's very relevant and could be sort of controlling in this manner. Do you have a copy of that? Because I'm going to refer to it. I don't know if you -- >> A. Sage: We can check the project file. I believe we have that with us tonight. >> S. Hahn: Let me just tell you what my concern is. It's a procedural concern. This permit, which was appealable and upheld by us, it has a condition number 10, which said they were supposed to record the limitation and that it not be a -- have a kitchen and not be a rental unit. But then -- >> A. Sage: Can I find that? I don't -- I see condition 10 as applying to construction noise. . >> S. Hahn: I'm looking at the use permit issued effective may 2, 2012. >> A. Sage: The first AUP. >> S. Hahn: Yes. After it was appealed it was then upheld by us. And then this is the permit that was issued. So this is the permit that was violated. >> A. Sage: Okay. >> S. Hahn: First of all, I'm concerned if it wasn't just my packet that didn't have it. Going to the substance of it, it says very clearly this permit is subject to review, imposition of additional conditions or revocation if factual complaint is received by the Zoning Officer that the maintenance or operation of this establishment is violating any of these or other required conditions. So this matter, when the violations were found, which we have a clear record of, this should have come to us. This permit is subject to review. It should have come to us for review and imposition of additional conditions or revocation. Instead, staff seems to have directed them to just file another application. If we're going to put this kind of

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language in our conditions of approval, we need to stick to them. This is something that the neighbors and the community relies on. This is the remedy. So, I really question why there was another application before this process, clearly identified here, was brought before us. And I also, it makes me worry, no matter what we might do today, if people disagree with me, that this is not even rightfully before us right now. Why do we put in conditions if we don't stand by them, why do we do them at all? I have a real concern that we are kind of out of order here. And that what we should be doing is looking at the -- doing what we said we were going to do. I'd like to know why we're not doing that and why we're back in this situation with this application. >> A. Sage: Okay. Those are very good questions. The wording, just first, a procedural issue, I guess, the wording of that condition, I don't have it in front of me. I believe that it leaves the -- because this is a condition on a permit that was approved by the zoning officer, the Zoning Officer would be in the position of deciding whether to take action pursuant to this condition. Obviously we decided not to do that. I think that the rationale for deciding not to do that was probably that, that certainly could have been done. That was certainly an option. But I think the rationale was, and again I wasn't part of the decision. But it was probably something along the lines that, you know, there is a pathway to address the violations -- there is another permit that can be issued that would bring the violations into a state of compliance. That was one pathway that was available. Another pathway could have been to say you have a violation and we're just going to revoke your permit and you may obtain no further permits from the City. Generally that is not an approach that staff takes. If there is a permit that we feel can be issued, that is not detrimental. >> S. Hahn: I would just say that my reading of it, it is not up to anyone. It says is subject to review if. I don't think any reasonable person in the community would think that this was something that was elective. So I guess, I mean -- we can go ahead with it if people want to. But I think it's just flawed and I think it's a misrepresentation to the community if it really is elective. And it should say "may" not "is subject to review." "May be." I don't know. I'm an attorney, to me it reads like it's NOT something you get to decide. >> M. Alvarez-Cohen: Any comments? We'll move forward then. >> M. Alvarez-Cohen: Let's bring up the appellant, they'll speak first. You have five minutes. >> Thank you for taking the time to hear our situation. My husband Russell and I have lived in Berkeley most of our lives. We met at Berkeley High school. On my 16th birthday. We have two wonderful daughters. I'm a professor at Cal, I study organizational culture, ethical leadership and how diverse groups find ways to work to generate creative ideas. We've lived in our home for 22 years. We love it. Our neighborhood and our neighbors. Many of whom are here today. We're asking you to grant our appeal to deny the AU on policy grounds and the violations and failure much enforcements have caused detriment

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to us and the neighbors. Because our prior decisions were based on false representations we're asking to you make the decision as if the applicants had presented from the beginning what you know about this case. An application that disclosed the garage addition's proximity to the property line and location in an H district. The garage roof height from the actual grade rather an grade that was raced midway through the AUP process. A nonpermitted rental unit without required parking. That this is actually a request for a second accessory unit at 85 Parnassus. Making this R-1 site a triplex H one that would block the direct southern sun from our yard, one that removed a significant portion of our master bedroom view of the south bay and Oakland lights. One that given the size of the applicant's lot could have been minimized the detriments. You can reevaluate it in terms of the applicant's response to the prior vote in April of 2012, the one that allowed them to keep their addition. Their response was to vie lace every meaningful condition designed to protect the neighborhood. Unfortunately a reality based evaluation of existing conditions has not been possible in this case because of chronic misrepresentations. A month after getting approval for a half bath inside the existing garage in September 2010, applicant submitted a revised request to, quote, create a toilet-sink outside my garage instead of in. They checked the box that said revision does not increase building square footage. Let me say that again. Revision does not increase square footage. They falsely stated that the addition was not less than 6 feet from the property line nor in an H district. They further omitted their intention to create a kitchen, full bath and utilities for a dwelling unit they plan to rent as an apartment. Indeed, only one day after the the final inspection they posted an ad listing the garage for rent for $2,000 a month on Cal rentals. These manipulations of the fact triggered requirements for survey, shadow study and public review and comment. The City granted this permit without ascertaining the true existing conditions or the detriment it would cause. And miraculously to this day the only building permit that exists is for a half bath inside the garage. Tonight we're asking you to right the wrongs of the last 3 1/2 years by declining the ADU, and we offer a simple resolution with a simple goal -- to free the City and the neighbors from having to spend another minute or dollar to try to get the applicants to comply with the relevant conditions and law. Given this goal and the applicant's track record, showing that they cannot be counted on to adhere to your ordinances and conditions, we propose that you continue to permit a sink and toilet inside the garage. This means removing the kitchen, the garage addition, and the unpermitted front porch and trellis. In other words, go back to the original footprint, the point at which this project went off the rails. The solution addresses the existence of the second rental unit on the property and still provides the applicants with the maximum allowable use of the garage habitable space. It minimizes waste and expense since the ADU requires tearing down and moving the entire north wall anyway. And their plans are to completely reconfigure every

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aspect of the bathroom. And because the roof of the addition is not built as approved or drawn, it will need to be approved or rebuilt. Our proposal involves less waste, it allows the original garage north wall to stay as it is. The it partially solves the view loss and shadow but not loss of privacy. It makes ongoing use violations less tempting admittedly not impossible. We feel we've tried everything, initiating mediation, becoming experts on ordinance, consulting experts, without a decisive outcome we fear that we will be back here yet again, a year from now, with the same issues. We're hopeful that you can help us resolve this situation. Thank you. >> M. Alvarez-Cohen: Thank you. Excellent. Any questions for the appellant? Sophie, go ahead. >> S. Hahn: Could you clarify what you -- are you saying that you would be satisfied with the structure as it is, but just with the half bath and minus the small addition? >> We're asking that you go back to the original footprint of the garage, that is to take the addition that encroaches -- >> S. Hahn: A little extra -- >> The side yard where detriment was never evaluated. And if they want a toilet and sink in their garage, that's fine. >> S. Hahn: Let it be habitable or not habitable? >> Well, you'll hear from other neighbors, the neighbors in the back in particular, they're upset about having a habitable space right there. As you can see from the survey, the garage, it's a very big lot. The garage is as close to neighbor's property as it can be and as far away from the residence as it could be. It is a detriment. Our goal today really is to try to minimize the temptation for continued use violations. We've been through this for 3 1/2 years. We're out of time and money. And it's just been a bad deal. >> M. Alvarez-Cohen: Denise? >> D. Pinkston: Two questions that I can't figure out from the staff report and Sophie headed in this direction. I realize it's hard to see, but is it original structure before this story got started just that square box footprint of the garage minus this additional structure? >> Yes. >> D. Pinkston: And then did they change the pitch of the roof somehow since it was originally a garage, did they -- >> Not on the original garage. But the pitch on the addition was another of the speakers is going to talk more about the technical aspects of this. >> D. Pinkston: This roof didn't change. >> That roof didn't change. But the addition roof wasn't built as drawn or approved. >> D. Pinkston: Thank you, that's helpful. >> M. Alvarez-Cohen: Thanks. Steven? >> S. Donaldson: I was looking at the parcel map. Is your property to the north and bordering -- >> Yes, we share a southern property line. So our direct sun is actually affected by the garage addition roof. Our southern exposure. >> S. Donaldson: That garage was built on the property line

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originally. >> It was built 3.38 feet from our side yard. >> S. Donaldson: Okay. That addition that goes along the northern property line, is that part that you're concerned about. >> Yes, that encroaches further into the four-foot side yard offset, the addition does. >> S. Donaldson: Can you tell me how big that is, linearly, roughly? Just so that we have that on the record? [ Inaudible ] >> S. Donaldson: No, I mean, you're talking about a piece of a building that's been added on. >> Yeah. Four or five feet. >> S. Donaldson: Thank you. >> R. Allen: 5'6" 1/2. >> Five or six feet, thank you. Can you tell I'm not the technical expert? [ Laughing ] >> M. Alvarez-Cohen: Thank you. Let's bring up, is the applicant here? I don't have a card from the applicant. If you'd like to speak you have five minutes. When you're done if you can fill out a green speaker card. >> I'm Mona Nichols, the property owner along with my husband at 58 Parnassus Road. Unfortunately, he couldn't be here tonight, he's overseas. 85 Parnassus. I'm not very, 100% with the time line. But I'll try to be as accurate as can I. I don't have a lawyer with me tonight. I have my friend and architect. So my husband and I applied for a half bath, I think it was 2009, end of 2009. And at the time, I was alone here, in Berkeley, and made a very poor decision by adding a shower. I took full responsibility for that and I got very good advice. But I am the owner of the property and I did make a very big mistake. Since then, and with the City inspectors that have come up, I have abided by every single request the City has asked me to do. Which is to close off -- well, what I want to say, once, the inspector came up and I talked to him, he said you have two choices. You either close the shower do you know and keep your half bath -- close the shower down and keep the half bath. Or apply for the necessary permits to make it habitable, AUP, then another AUP, and then another parking space, and then eventually the ADU. I think in that order. I discussed with it my husband and we decided to follow all of the procedures that the City required as to eventually keep the shower. So we were told from the onset these were our two options. So we applied for the AUP and it was appealed by the neighbors. And it was at that point habitable space. We also applied for parking. The initial permit was given ways based on the original fence which had been there for 20 years. And so when we put in the half bath, which is about 5 feet by 6 feet, the construction was done along the old fence. Then soon after, the neighbors ripped the fence down and requested for us to get a planner, surveyor and they got their own surveyor and the difference was a few inches and they requested that the City follow their time line. Their surveyor's plans. So they had called the City repeatedly and asked for all kinds of things. We had a tiny trellis, they asked for it to be

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removed. They complained about debris. They complained about my kids being in the garage. They called the City and reported that we were renting. We never rented the space. The ad ran in 2009, but ever since that moment, when the City came up, and gave us the option, we stopped and applied for all of the permits and followed the City's rules. They complained about the grade, they complained about the roof line. They called the City and complained that we had towels hanging outside the garage and that clearly we were renting. Inspector after inspector came up and saw that we were not renting. I have three adult children that graduated from university and they have significant others and they come and go. The neighbors are standing outside their bedroom watching who is come income and out of my house and coming up and down my driveway. It is a total invasion of privacy. It is threatening. It is bullying. And they would not take no for an answer. Even though we had continually complied with the City's request. In 2013 they asked for mediation. We went for mediation. My husband was here for about 2 weeks from overseas. Steve came over and they were great. They asked to us move the bathroom, into our driveway. Which is an impossibility. Our driveway is where we park. We don't have offstreet parking in the back of our house. And it is not feasible to do that. They then complained that they lost their view. Well, they're talking about, in fact, we used to have a 200-year-old redwood tree that had to be taken down, a neighbor had done some construction and that was not a pre-existing view for them. That view never existed regardless of the height of the roof. They complained repeatedly about the height of the roof and so on. >> M. Alvarez-Cohen: Thanks, Mona. Any questions for the applicant? Sophie? >> S. Hahn: You said you got bad advice. Did you ride the permit? >> Yes, I read the permit. >> S. Hahn: The permit says that the building, did you get the notice of limitation that it directed you to get? >> Did I have to file that with Alameda County? >> S. Hahn: Yes. >> Yes. >> S. Hahn: You did? >> I did file it, yes. I did that. >> S. Hahn: That says that it shall not be converted to a dwelling unit without a permit, it says that it will not have a shower, it actually says shower. >> Correct. >> S. Hahn: Tub or kitchen. You read that, and you filed it, but you didn't -- you took other advice. >> This was after, right? The filing I did was after the permit, right? >> S. Hahn: You got the permit, which I already told you -- it already told you couldn't do those things. Then you were supposed to go to Alameda County and record that you weren't supposed to do those things. But you're saying you took some one's advice that was bad and then you did those things. I'm not understanding under what authority you thought you could put a

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shower in. >> At the onset of the project when we got the permit to have a half bath, I received very bad advice and I take full responsibility for the advice. Which at the time was you can put a shower in here. >> S. Hahn: But you had this permit had already been issued. >> Okay. >> S. Hahn: It says you can't. That's fine. My other question is, this is a copy I assume of an ad for your -- >> This is my house. Inside the house. >> S. Hahn: The house? >> This is the house. >> S. Hahn: This is not -- >> Correct. >> S. Hahn: So this which was posted in April, April 25 of this year, you're advertising something for rent in your home. >> I occasionally host visiting scholars, yes. In my house, yes. It's not a separate part of the house. It's the main house, yes. >> S. Hahn: You're renting a room. It's not a unit. >> It's absolutely not a unit. It's my house. Inside my house. It's just off my kitchen. >> S. Hahn: Okay. >> It's in the same building, yes. >> S. Hahn: Thank you. >> Thank you. >> M. Alvarez-Cohen: Bob? >> R. Allen: You didn't address the sink in the old garage area. I don't recall seeing any permit for that sink. >> They told me to block everything off which I did. >> R. Allen: When that was not in the original permit, clearly for the half bath. >> No. >> R. Allen: But you did it anyway. >> At the time, yes. >> R. Allen: Thank you. >> M. Alvarez-Cohen: Any other questions for the applicant? No, well, thank you -- oh, okay. >> S. Hahn: A question for staff that applies to this. >> M. Alvarez-Cohen: Okay. Thank you for your testimony. You can step down. We'll interrupt the public hearing to do two things. Let's announce that Igor has arrived. Staff, you want to do attendance and ex parte. >> A. Sage: Yes. Igor, you're present. And do you have any ex parte disclosures? I did get one written, in your e-mail earlier today. And I can read that into the record or if you'd like to. >> I. Tregub: Sure. Feel free to read night the record. >> A. Sage: Let's see, actually, I apologize, that was a clarification, for the minutes. >> I. Tregub: I can announce the ex partes. >> A. Sage: Thank you. >> I. Tregub: 85 Parnassus road, I received a voicemail from Rena Rickles asking me if I had any questions about the project. And on 2222 Ninth Street, I have been in communication with the Rent Board staff. I apologize for my late arrival, I blame

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Southwest. >> M. Alvarez-Cohen: We're going to continue the public hearing. I'm going to call up Rena Rickles, and then the appellants can then decide how they want to organize their speakers. >> One minute to get organized. Good evening, chair Cohen and members of the ZAB. It has been a horrible road for Jenny and Russ and their neighbors. This wasn't a single complaint to the Zoning Officer. The file is this thick. A phone calls after the use permit was issued of the shower is there, there's steam coming out, the county restriction was not recorded, wasn't recorded properly. Essentially all of the conditions that you put on that were meaningful were not followed. It wasn't just one or two calls. It was several complaints. It went all the way up. There was a meeting with the newly appointed planning manager, Eric Angstadt, all this was gone over. The result was an enforcements inspection in November that you have in your packet, nothing was done then. Then in April, Wendy Cozin sent out a letter of findings and $1,000 a day if the situation didn't change. Nothing happened. And for clarification, the decision as to whether or not it comes back to you, it wasn't a Zoning Officer decision in April, it was a zoning adjustments board decision in April. What I'd like to focus on right now, is that there are findings to deny both on just the permit before you, and significant reasons for you to be able to ask and set in place a motion to revoke the original permit. First on the simple issue of whether or not you should deny what's before you, there's ample evidence of what was built as essentially inside Jenny and Russ's backyard. Not the person who built it. Intensifying the use by legalizing a full dwelling is enough detriment. Especially when what we have here, under the circumstances that are before you, is the applicant has a huge lot. They could have put this anywhere and not been a problem for the neighbors. And third, there already is a rental on the property. And it is being rented as an apartment. It has been advertised and used as an apartment since at least three or four years. And the neighbors can tell you that. Regarding the reasons that you could move forward on a notice to revoke, I have since I knew I'd run out of time, I have provided a letter on the reason to deny the use permit as well as enough reasons any of them alone would be reasons to revoke this permit. What is really at issue here is do the Zoning Adjustments Board's decisions matter? Are people required to follow them? And if you -- the assumption is if you put conditions on a project do you really expect them to be followed. Then I guess the last question is, would you have approved this if this came to you with full disclosure of the actual conditions as they exist. I'll take questions and I have enough of this for everybody. >> M. Alvarez-Cohen: Any questions? Go ahead, Bob. >> R. Allen: I believe you said that -- at least I heard it that they built on to the neighbor's backyard. What was that? >> What I was saying is that the accessory unit that has been built, ball games it's only four feet from Jenny and Russ's backyard, it's essentially in Jenny and Russ's backyard. All of the detriments and intensity of use that this is causing are

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really the applicant is immune from them. Jenny and Russ have them. >> R. Allen: Okay. >> If this were a normal property it would be a regular backyard and be 20 feet. >> R. Allen: Thank you. >> S. Donaldson: Was this building built from a scratch or was it originally a garage that was there with a permit and converted? >> We're talking about the addition. The garage was. There the larger building had been there since day one. The addition started being built in October of 2010. >> S. Donaldson: Talking about the equivalent of that bathroom components? >> The bathroom piece and additional roof that is part of it. >> S. Donaldson: Okay, I wanted to be clear. >> M. Alvarez-Cohen: George? >> G. Williams: Rena, maybe not the right one to ask this question, but we took action on consents on the appeal in 2012, and the appellant did not appear. Were you representing the appellant? >> The appellant was here, at that time you did not take testimony. Mr. Bill Berland who was representing them was here in the audience as I understand it. But the actual appellants were, I believe, out of the country. It was -- [Inaudible ] >> the date was actual Jenny's birthday and a big one. Her attorney was here in the audience. When this was heard, it was under the old ZAB rules where you did not take oral testimony but your decision was based on the written record. >> M. Alvarez-Cohen: Right. >> G. Williams: Thank you. >> M. Alvarez-Cohen: Sophie? >> S. Hahn: Steve asked one of my questions. My other question, did I hear you correctly, that you are asking for two things, you're asking for, one, for denial, well for overturning the approval of the current administrative use permit for an accessory dwelling. And you're also asking for us to revoke the may 2 permit for habitable accessory structure? Did I misunderstand that? >> Yes, the conditions were not followed. >> S. Hahn: You're asking for both. >> You cannot do the second tonight. Procedurally it's different. We're asking that a motion be made to instruct staff to begin the procedure for revocation. Tonight we're asking you to deny the application before you, to make this a full residential and rental use. >> S. Hahn: Thank you. >> M. Alvarez-Cohen: Shoshana. >> S. O'Keefe: I have a question about the second rental unit issue. You claim there was already a rental unit. Are you referring to the space in her home? >> This is a space in her home and I do have an e-mail response from the applicant where somebody asked and she said this is a

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separate entrance. It is two rooms that are private, it is a private bath, you have laundry facilities, you have a toaster, a toaster oven, you do not have a sink. It's completely private. We do not share any space. That is in her e-mail response to a potential tenants. >> S. O'Keefe: Have you submitted that as part of the record? >> I have the ad itself and I have with me that response. I was madly looking for it before I came up and I will get that to you before the end of the day -- shortly while everyone else is talking. >> S. Hahn: For my colleagues, this is at the end of Rena's packet. Second to last item. >> S. Donaldson: Thank you. >> S. Hahn: It is the ad but it has the same exact words. It says, available for you as a microwave, toaster oven, toaster, coffee pot, utensils, washer-drier, fridge, it sells it's not a shared housing situation but two private rooms plus a private bath and private entrance. >> M. Alvarez-Cohen: Got it. >> S. Hahn: It's all there. Go ahead. >> S. O'Keefe: So are you -- do you know, since you're an attorney, can you quote us, the definition of what constitutes a unit? I'm curious about that. Doesn't it need an oven or something? >> This is so MUSHY. I got to the point that it felt like an accessory dwelling unit with benefits, she offers to do their dishes. Since it doesn't have a sink, it may not be technically be a full dwelling unit. And I did pull out the definitions in the zoning ordinance and it's just, it's sort of sits on bed and breakfast, which is an old ordinance, not in the new ordinance, they're prohibited outright. It's probably closest to a bed and breakfast but it is also being treated as a short-term full rental apartment. That's what it's been advertised at. Prior to this most recent ad, it is our understanding, and the neighbors can tell you, there was a long-term rental situation in that particular area. And I will, again, pull out her response, there's no common area between this unit and the house. >> S. O'Keefe: Do you think that is separate -- >> That makes it separate. I've been asking, -- there isn't a sink. >> There was a parking space. But there is an area that is not legal to be one. >> M. Alvarez-Cohen: Igor? >> I. Tregub: Thank you. The definition of a unit is MUSHY and compounded by the zoning code has a different meaning than the Rent Board. In regards to what you mentioned, it was a long-term rental situation. Just to clarify but that's in the separate -- >> It was in this particular area we're talking about. The interior of the house with the two rooms. And there are several neighbors who are aware of this person living there. Contrary to what's been said, my client's knew, too. They didn't complain. This was known it was going on. Only when there was going to be another unit that essentially that was enough. And you started hearing from the neighbors. Thank you.

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>> I. Tregub: Thank you. >> M. Alvarez-Cohen: Prakash? >> P. Pinto: In terms of, you state under general detriment findings in your own memo, reasonable alternate locations and you say there's other opportunities for this addition. Is that implying that if this was in a different location that would be okay with the appellants? Aside from the additional unit it's not clear to me. >> What I'm implying, had this come to you as it should have, rolled back the clock, the findings of detriment based by proximity, pictures in the record that show that they have lost view and sun, with this location, this Zoning Adjustments Board regardless of what the neighbors would have said, would most likely have approved. Because of the city policies in favor of allowing these units, assuming it's the second unit. So therefore it's likely it would have been approved. Also we're in an area where it didn't cause harm, didn't block any sun, didn't block their view and activities, in their backyard essentially. Personally, they might not like this but I would have to tell you I would have a hard time arguing for detriment. >> P. Pinto: The quasi-third unit, I'm not sure what it is, but it would not be a factor. Fair to say? >> No one complained about it, even though they knew it was an extra rental in the neighborhood, because it was not causing any harm to them. >> P. Pinto: Thank you. >> M. Alvarez-Cohen: We have eight more speakers. In support of the dismissal, I'm going to call them up to a time foster, followed by Betsy Smith. Obviously you didn't fill out the card correctly, but go ahead. State your name for the record. >> DIARO foster. Chairman and board members. I was hoping to go first, I imagine that there's lots of opposition to the project. And what I have to say won't change and it will be brief as possible. I'm a friend of she and her husband. I'm not a registered architect but I've designed classes, spent most of my career in the Bay Area, graduate of U.C. Berkeley 1997. Probably the most surprising part of this, there's been a lot of discussion, I think the term "bed and breakfast" has been thrown out there. An ironic piece, I've come to known her, my wife, once upon a time in college, was her nanny. She lived in the unit that is being -- that I believe has been advertised. Years ago. And by years ago, '95, '96 or some time in my college days. My wife spent a lot of time with her then-young children who are now adults and outside of the house. Through the years, we've come back and we've visited with her. My wife more so. There was a point where in transitioning back from southern California to the bay, my wife while I was waiting to come back from work in southern California, went and lived with her again with our then-young child. This is the person that I know. There's a history on this project I was not involved N the first permit had nothing to do with me. In late 2012, she contacted me, she had been given a notice of violation, she had been given the option to correct her mistakes. I got involved and I can attest from that point forward, slipping things in and doing things on

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the sly has not happened. I told her from the very beginning anything that I become involved in, I do it above board. Any draw things were submitted that I did I went out and verified the measurement, I spoke with Claudine, I spoke with Terry, the City of Berkeley representative who gave her options how to pursue what she can pursue and the documents we provided were up to snuff. I was aware that what should have been 4 feet was 3.85 feet. That's the sort of thing you negotiate in my experience, you talk to the neighbor, are you going to appeal this? That was not an option. So we came up with the design and a plan that would work within the constraints. She had one survey that the City decided was erroneous and decided that we needed to uphold the neighbors' site survey. If we did that we could move forward. Redesigned the project six months later to abide by that survey. I believe that her efforts are genuine and I believe that for the better part of the year her efforts have been above board. >> M. Alvarez-Cohen: Thank you for your perspective. We have a question, Igor? >> I. Tregub: Thank you. This might be a question to you, or to staff. I'll ask it, and then that will determine who responds. The change that we received a couple of days ago with the development standards -- I'm sorry, the setbacks, changing it from 3.97 to 3.35 to 3.72, can some one explain how the original one was measured and what was the determination that was later made to change that, who made that determination? >> A. Sage: My understanding is that that is a function of the fact that the wall is not completely parallel to the line. The setback varies depending where you measure it from. I hear some dissent out there. I wish Claudine was here, she would be able to answer this more authoritatively. That's about the best can I do. >> I. Tregub: So the change was made at Claudine's behest, ultimately? >> A. Sage: My understanding is that Claudine, it was pointed out to Claudine by one of the appellants, that the setback she had in the original staff report was not because -- I may be misunderstanding. The wall was at an angle to the property line. She changed it. It was less than four feet. To get into compliance, the wall would have to be moved four feet away. >> R. Allen: This was about 2012? >> Based on the survey, I became involved in the project at the end of 2012 in December. When I met Mona and Ed, handed me drawings, it included the survey that they had paid for by a licensed surveyor. And that's what the first round of drawings to get the accessory dwelling units that I provided was based on. >> R. Allen: What I'm after, maybe you don't know, maybe somebody else, including staff would know, it sounds like the original bathroom addition was built without a survey by measuring to the fence that it was represented to the City as four feet. But that was without survey. Thanks very much. >> I'm not sure. >> M. Alvarez-Cohen: Thank you. Betsy Smith followed by Gordon

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gray. >> Hello, I'm Russell Barnett, a contractor. I live on Parnassus court with my wife and daughter. The discrepancies in the height in the existing garage addition compared to the heights as presented and voted on by you in the last permit and coming forward to tonight. The impact of this position, the impact on the sunlight in the backyard, city lights from the mast irrelevant bedroom. It fell on deaf ears, I hope that will change tonight. The misrepresentations of the addition of the roof pitch and measured grade, the topography of our yard and that the applicant along the line of addition are essentially identical. In July 2011, before the staff approval of the AUP, I advised planning that the height of the addition exceeded the 10-foot average allowable height by about 2 feet. The following weekend, Ed added two feet of rock and dirt to the ground surrounding the addition to raise the grade. Because the grade increased by two feet the addition no longer exceeded the allowable height. Roof height, Jenny and I paid for a detailed survey of property line and the height of the original garage room and addition roof. This is the survey which staff has determined to be the valid survey. This survey performed in 2012 showed the manipulated grade as it cannot show grade retroactively. Our photos show you the actual grade. The height of the original garage roof which is 12'5" and the newly built roof of the half bath addition is 11'6". Height differential, 11 inches. Yet the plans before you today, and in 2012, show a 30-inch differential. Roof profile or pitch, the first set of drawings approved November 10, ZAB 2012 and today, show a much flatter roof profile of 4 and 12 pitch on the garage addition roof. The garage addition roof has a much deeper profile of 7.3 in 12 which was confirmed by our Moran survey. That creates an increase in height that was voted upon of 14 inches. Rena verified with staff even though the drawings before you show a 4 in 12 there's no intention by applicant to reduce the roof height to that shown on the drawings. Combine detriment, 2 feet manipulated grade plus 194 inches of excessive roof makes all the difference. Extending the addition roof across our southern sun blocks the bigger chunk of sun, exacerbated by the additional height. The excess above approved height deprives us of about half of our view of south bay and Oakland lights. The garage shades the sunny part of our yard. Your prior vote was based on a doctored national actual grade. Your prior vote was based on a doctored height. >> M. Alvarez-Cohen: We get it. >> I asked for your consideration of no ADU approval. >> M. Alvarez-Cohen: Thank you. Come back up, we have a question for you. >> I. Tregub: One question. I've been trying to figure this out. Since the pages were not numbered in the packet, the appellant submitted, this is the third and fourth page with the photos. >> Correct. >> I. Tregub: Is there a difference between these photos, which is the before and the one right after, for -- >> Those are the same photos. The one photo that your hand is

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covering, right now, is the photo from a different elevation showing the existing now, what we -- line of sight versus the two on the left side, above each other. Standing on the stepladder showing what the view was before, and the other one shows you, now that we've lost that view and lost the light. >> I. Tregub: Just wanted to confirm that was the only distinction. >> The same page, yes. >> I. Tregub: Thank you. >> M. Alvarez-Cohen: Denise? >> D. Pinkston: I'm still confused about height. The existing garage roof is as it has been prior to any conversions being entered. The only roof we're talking about, the pitch being different or doctored, is just the 5 foot approximately square bathroom addition, is that correct? >> The original roof has not been touched. The addition roof is perpendicular to the original ridge line roof. So it has more impact across the southern side. >> D. Pinkston: Sure. >> The bathroom is 5'2" by 7'6". As drawn. It is actually 5'2" and 8 feet actual size. >> D. Pinkston: Back to the roof, is the existing roof height 12 feet for ADU? >> A. Sage: Yes. You mean the maximum? >> D. Pinkston: Yes, sorry. You're saying that the existing roof as it should have been measured with natural grade prior to the creation of a berm was what? >> We're talking about the addition? >> D. Pinkston: Just the addition, the bathroom roof addition in your mind is it higher than 12 feet? Regardless of what they said or -- it's not higher than 12 feet if you measure it legally? >> The Moran survey, he measured from the but-upgrade -- built-up grade it's 11'6". The existing garage is 12'5". The addition roof is 11'6". >> D. Pinkston: You're saying that's including the berm. If you measured it from -- >> The old grade. >> D. Pinkston: You might have had a different answer. >> Add two feet more. >> D. Pinkston: Okay. >> Any other questions? >> M. Alvarez-Cohen: We're all set. Okay, next speaker. >> Hi, I'm Gary Parsons, I'm an architect who happened to be working with Jenny and Russ on an addition to their house while this was taking place. Amazingly enough, Jenny and Russell provided the City with clear documents that accurately represented what they wanted to do. Permissions were granted, it was an AUP situation, neighbor signatures were attained, it was all transparent and went the way it should go. Next door something all together different was happening. An incremental in my view cynical disregard for your process and for the process that everybody else in the City should be doing was taking place. My particular reason for speaking tonight is

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because I admire Jenny and Russell and how they respected the process. And I also want to make it clear that as a professional, I have to do a lot of education to clients who are mostly lay people about your process. The general feeling I think among the populace is that the planning process and the building process, building permissions process is onerous and Byzantine. It's my job to tell them that it's not, that you guys are, the rules are clear, the rules are followable, the rules are fair, it's not what they think it is. So here we have an exam many of somebody who's playing the game from the other direction. What do I tell my clients, do I tell my clients play by the rules, do the process the way it's designed, be transparent, be honest? Or incrementally undermine the process to get what you want even thousand those aren't the permissions that you were given. Ask for -- is it better to ask forgiveness than ask permission? I don't think so. But I think this a very, very important precedent that you are looking at. Maybe it's not a precedent, probably happened many times before. Probably other similar things came up in front of you. Anyhow, that's what I wanted to say. I also wanted to add that maybe when you're asking what the threshold of the unit is, for what's going on inside the house, you can go back to the fact that in the original permission for the garage work, bathing facilities were not allowed. That seems to be the threshold between what's a habitable accessory structure and what has to require an ADU. ADU permit. That might be something to think about. Thanks. >> M. Alvarez-Cohen: Bathing not food prep, that's the distinction you're making. Thanks. Rein a, who's up? -- Rena, who's up? Let's get it going. Can you put the next person on deck. >> Hi, I'm Betsy Smith I live at 95 Parnassus road. My property abut the Nichols' property on the whole south side. I support the appeal and oppose the ODU. I've been listening to the discussion about this garage and I was reading all of the paperwork about it before hand. And I notice that this garage was built in 2005. I've lived there since 1994 and they used to have an old sort of run-down one-car garage that was there. And then I was in Berlin for several months in 2005 and when I came home miraculously there was a beautiful two-car garage with French doors that I don't think I've seen a car in. But the kids use it as a teenage party place. And the impact for me is that the parking for this, if they get it, is right next to my only outdoor patio space for entertaining people. Thank you very much. >> M. Alvarez-Cohen: Thank you. No questions. >> I'm Tate Arlington, I live at 96 Parnassus Road with my partner, Gordon Gray. I have a degree in landscape architecture from Cornell university, I'm not -- I'm somewhat versed in some of these issues. My biggest concern is the enforcement and the fact that we all have to live by rules that we all agree to. And it doesn't look like any of the rules were followed nor were they enforced when they should have been. Thanks. >> M. Alvarez-Cohen: Okay, thank you for your brevity. Who's up? >> I was told not to start with a joke. I flunked toast masters

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twice. >> M. Alvarez-Cohen: Start with your name. >> I'm Ruth Goode. I flunked Toastmasters twice. So forgive me. I've lived at 7 East Parnassus court for 16 years. I've been in Berkeley since September, 1960 when I came here to go to Cal. My two sons graduated from Berkeley High. I've been involved with the campus Parnassus neighborhood association. I support everything that's been set already. And the proposal to revoke the original AUP and revert to the one-half bath inside the garage. I've been asked to read a letter from one of the appellants, Dora HALPERIN who couldn't make the meeting. This is the letter. Dear ZAB, I will not be able to attend the ZAB meeting on may 8, 2014. My his band TULIO and I are still appellants and request that because the extension to the garage at 85 Parnassus never had the required public and neighbor comment prior to construction, that if approved as a residential structure it should be removed entirely or moved to the south facing end of the existing garage. So that it isn't a detriment to us and especially Jenny and Russ. And I also wanted the ZAB to know that I have not changed my mind about this issue. I still feel that an apartment glued to my back fence five feet rather than the required 20 feet is an outrage. As for it being a rental, I do oppose that because there is already a rental on the property. Surely two rentals are not allowed. Since all my letters and meetings with the City have not changed a thing I hope that you the ZAB can fix these problems. Jenny and Russell are the best neighbors anyone could wish for. I also hope the City will come to a decision that gives them back their privacy, loss of southern sun and bedroom view. Best regards, DORA HALPERIN, appellant, 1498 campus drive, Berkeley, California, 94708. This is mine. I feel strongly that the law should be upheld and people shouldn't be allowed to build first and ask permission later. I understand there's a rental in the main house which should preclude asking -- adding another one in the garage. The renters will be parking on the street. The receipt from time to time on the neighbors, loss of sunlight, noise, privacy and view is unfair. This project could have been located more reasonably in a less offensive and less conspicuous area on the lot. >> M. Alvarez-Cohen: All set. >> Well there's more but I'm aware of the three minutes. >> M. Alvarez-Cohen: Yes, thanks for that. Any questions? All right, no, thank you for your testimony. We understand what's going on. And who do we have next? >> I'm Mrs. Tillson, 35-year resident of Berkeley and I've owned property here in the City for 24 years. I've known Jenny and Russell since 2002 when our eldest children started preschool. We've been family friends ever since then. And we've had the occasion, the opportunities to spend time with them at their home both indoors and outdoors. I've also served on the Board of trustees with Jenny at our children's school so I've had the opportunity on work with her on a professional capacity. In the time that I've known Jenny and Russell, I've had the opportunity to see them in action when it comes to a variety of different

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construction projects that they have undertaken both for their home and for other houses in the area. Yes it's Russell's job as a contractor. But I've been really struck by how they have had a high level of integrity in the process. They have valued and spoken about the building codes and the permitting process as something that they trusted, something that they understood, something that they new how to work with -- they knew how to work with. As a result of that, I feel like their standards are high and they are fair-minded and reasonable people. I've had the chance to witness the impact of this applicant's construction project on Jenny and Russell's property, on their home and on them personally as individuals. And to simplify it, this project, this construction has transformed Jenny's and Russell's outdoor and indoor space. They've gone from having a small garage along the property perimeter to having an inhabited house. They've lost the privacy that they once enjoyed in their backyard. The extension of the roof line has been talked about here, has completely changed what they see out their bedroom windows on the second floor. Rather than seeing the south bay cities, they literally look down on to a car park and a clothesline. If you don't think that doesn't change the ambience of your home, then you haven't seen this. Jenny and Russell have spent their adult lives working the system and working with the system of the Berkeley planning building office. And that system presently has failed them. And I ask you to please step in and take a hard look at what the original garage was. What was approved. >> M. Alvarez-Cohen: We got it. >> And what was built. >> M. Alvarez-Cohen: Thank you for your time. No questions. All right, our last speaker, is Paul. >> Thank you so much, Paul Serami, general contractor and home builder in Berkeley, lived here for 37 years, raised our children here. I've worked on over 100 properties in Berkeley. Have a couple big projects going on right now in San Lewis and thousand oaks. What I want to say about Jenny and Russ, I have known them over 30 years. We've been business partners in some development projects in Berkeley. And I want to say that we know how the City of Berkeley and ZAB operates and we're very familiar with the process in which we can get approval. We always follow those to the letter. To get a project approved before starting any construction we understood that it was for the best interest of the neighborhood, it was for the harmony of the neighborhood and keeps neighbors neighborly. That's the important thing. That's the job that you guys do. This is what really is important. Neighborhoods stay the way they are in Berkeley, they stay intact. That's really important. Russell and Jenny knew that. They know the process. They've worked on their house numerous times. Always went the route of getting all of the approvals to make sure that their project was approved, was overseen by you, by the City zoning office, by the building inspectors. It's important that these processes are followed fully. I think Jenny and Russell also are very aware that they live in an urban setting. The urban

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landscape changes, you know, we can't think that things are not going to change. That happens. But what needs to happen, is that people need to follow the rules and follow the intent of the law and the zoning ordinance so that our neighborhoods stay intact in Berkeley. Thanks so much. >> M. Alvarez-Cohen: All right, thank you. Now we're going to bring the applicant up, first. And if you'd like you can speak for two minutes as a rebuttal to the public hearing. >> A couple of things. One is that the garage has been there since we moved to the house in 1993. So 20 years. The garage, the building was there, the roof was there. We have a very, very, very long driveway because it is a double lot. So the garage is on to the back. We park our cars in the back of the house along the driveway and have been for 20 years. There was an original fence and the fence after the first permit was approved, the fence was taken down by the neighbors and we resurveyed and that's when we realized as some one asked earlier, the original garage is at an angle and so it's almost four feet at the top, on the east side, and it's 3-point-something on the bottom side. Talk about privacy, talk about light, talk about air, the neighbors in 2012 while they were appealing every step of the way, every permit the City gave us, incessantly they pulled a permit to build an addition of 200 square feet on to their property directly facing the back of our house, painted the walls orange, added tremendous amount of lighting so that we don't have a lot of lighting on our property, we're rather rustic. We can hardly see where we're walking now when we come down, there's an upslope, we're down-slope. Talk about invasion of privacy. Our decks, our balconies, are looking right at us now. We never complained. We never appealed. It is what it is. Thank you. >> M. Alvarez-Cohen: All right. Stay up there, hold on a second, George? >> G. Williams: Yeah. Could you explain the trees along the property line? >> The trees? >> G. Williams: What was the purpose of planting those trees in that particular place. >> Yes. So they had complained a number of times about the 5x6, the addition of the bathroom, the garage. We thought that perhaps if we planted some trees or shrubs that they would get their privacy. Since their addition, we would get ours. And they have continually complained about every species of tree we have planted. We took them out. We took them out, we took the trellis out. We took the back arbor out. Everything the City asked to us do we did. Right now, we have a pittosporum, a very light, airy shrub. We took awful the trees out, twice. >> G. Williams: Thank you. >> M. Alvarez-Cohen: Igor, then Bob. >> I. Tregub: Thank you. The garage that you mentioned, you got when you moved into the house in '93. There was previous testimony that the nature of the garage, the size of the garage may have changed around 2005. Is that not the case according to you?

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>> The size of the garage, the dimension of the garage, the location of the garage, the roof of the garage is exactly how it was when we bought the house. And I believe when the house was built in 1938. >> I. Tregub: Thank you. >> M. Alvarez-Cohen: Bob? >> R. Allen: In some of the building inspector's report, one of the things they said was that if you didn't comply with what they were requesting that you would be ordered to remove all of the unpermitted work. Does that mean all of the work on the building was without a building permit including the 5x7 addition? >> I'm not sure I understood the question. >> R. Allen: Did you have a building permit to build the bathroom addition. >> Yes, we did. In 2009. >> R. Allen: Not a planning permit, a building permit. >> Yes, we did. From the City. >> R. Allen: Thank you. >> M. Alvarez-Cohen: All right. Go ahead, Sophie. >> S. Hahn: Was that a permit to build in the existing garage or to build it in a separate -- >> Our original architect was Terry BROYER, also a neighbor, he submitted the plans. The plans came out, as now. It is the only one that we applied for in 2009. So it was exactly what it is now. Those plans were submitted, yes. We had a building permit. >> S. Hahn: Okay. I think I'm still confused about that. There's so much information in here, I seem to recollect that the permit was to have the half-bath put inside the existing footprint. >> No. Not at all. >> S. Hahn: We'll ask staff to clarify that. >> M. Alvarez-Cohen: You want to clarify that, staff? >> A. Sage: I believe that the approved plans for the first AUP showed the addition that the half bath was inside. >> S. Donaldson: Are you saying the addition physically shaped the way it is, that half bath inside the main building? >> A. Sage: I believe that's correct. >> S. Donaldson: The thing is that addition turned into a bathroom. After the fact without a permit. That's part of this process. >> A. Sage: There is I believe there is a copy -- >> S. Hahn: If you're talking about this, it does show a half bath. But I mean that's where we need this in the packet. How are we supposed to know what's going on without it? >> A. Sage: So noted. >> R. Allen: There's a chronology to Rena Rickles' package. >> M. Alvarez-Cohen: Denise? >> R. Allen: That will help clarify it. >> D. Pinkston: In the ad that you posted provided in the packet, you stated this is not a shared housing situation. But in your testimony to us, you said this is a house, this is a room in my house. Which is it? >> It is a room in my house. I believe the original owners, the house is a two-story house. And on the main floor we have the

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living area, and the in the kitchen. And I believe the original owner, way back when, I don't know for sure, added, like, an inlaw -- not an inlaw, added two little rooms off the kitchen. You open the kitchen door and you're into the rooms. And when my kids were little we had, and I was going to grad school, my husband was working, we had young women live with us to take care of the kids. You come off the kitchen, you open the door of the kitchen and you're into the laundry room and into those two tiny, tiny rooms. >> D. Pinkston: It's within the four walls of your house but it's not a shared housing situation. >> The only thing that makes it not a shared housing is because the original owners put a door, they put a door which we go out to put the compost in. >> D. Pinkston: It's not talking about the only owners, how are you using it? How using it as a shared housing or not? You say in your ad it is not shared housing. >> I mean I don't hang out with them and I don't share -- we don't hang out and they don't use the kitchen. They're usually there for a week and gone. >> D. Pinkston: Thank you. >> M. Alvarez-Cohen: George, then Prakash. >> G. Williams: The berms, it's been alleged that the berms were added and in ordinary that the height could be measured not from the original ground level but from a higher height. Did you want to respond to that? >> What you can use -- English is my third language. I'm not sure what the berm is. >> G. Williams: You raised the elevation, put rocks and soil around the exterior footprint of the building. And measured the height from that increased height added by the rocks and dirt. >> My understanding of that is there was a tremendous amount of excavation when we received the original permit back in 2009, that little addition, that bathroom that's 5x6, they had to dig very deep to put in the foundation. So then they put the soil back. The City came up, probably three times, based on the neighbor's complaints, about the grade. They came up three times to look. >> G. Williams: Thank you. >> M. Alvarez-Cohen: Prakash? >> P. Pinto: I have a question, in your ad, it states that there's parking provided for the unit in your house. But there's also, you're also asking for where there's a space being created as part of this accessory structure. >> We paid for -- >> P. Pinto: How many parking spaces are there going to be on the property? >> Behind the house in our -- in our driveway there's three. At least. Unless you want to go -- >> P. Pinto: Those are existing. >> Those are existing. >> P. Pinto: Not Tandem. They're all separate. >> Yes, three. And then the front of the house, in front of our house, there is all kinds of parking.

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>> P. Pinto: I'm talking about parking on your property. >> Is in the back, three cars, we can park three cars. We applied for a permit for that, Claudine asked us to apply for a permit so we did. >> M. Alvarez-Cohen: All right. I think we're done. Thank you, let's bring up the appellant, you have two minutes. >> Good evening. Several brief points. Yes, the first permit was for a bath inside the garage. The revision was to put the bath outside and then what was checked on the permit is no additional square footage. I will let you draw your own conclusions about the interior rental. And I will let you draw your own conclusions from the site map as to how many parking spaces there are. It's in the staff report. Also let you draw your own conclusions as to how much space there was to put this somewhere else. In terms of the permit before you tonight, we believe it's given ample reason to deny. One, it's way too close to the immediate neighbors. You're being asked to legalize an intensification of use that two years ago you said you would not allow. And there is this question about this other rental unit, and it would increase the density I'm permissibly. Also in the general use permit, we look at all of the circumstances. So it's a case-by-case basis. A 5 to 6 foot extension with a high roof in some yards would not matter. When you have a yard where this is their only sun it takes away, the enjoyment of the sun. I meant to bring up a Google that shows the only part of the sun, the yard that gets sun is the part right adjacent to this. For them this is too much detriment. For the fact that the height was changed and then the roof is higher than permitted, does block over half of their open light view and their southern bay view. Now, if they had 108 degrees, would -- 180 degrees would this be too much of a detriment? When this is all they have, to take half is a detriment. Especially when you consider that all this was unnecessary had the rules been followed. >> M. Alvarez-Cohen: All right. We have a question, Shoshana? >> S. O'Keefe: You asserted that two years ago this board stated that they would not allow it. Can you clarify that, I think we just -- we were asked to approve a different thing. >> Actually, you included very specific conditions. One that there be a deed restriction filed with the county that it could not be converted into residential use. And the language you required which was not put in the deed restriction until this application was made, was no kitchen, no shower, et cetera. You also made mention that any, in the findings, that if the shower was there it was to come out and anything that represented the residential use was to come out. And the findings then were as an accessory building that is only habitable, it is not a detriment. Did you specifically -- you could not answer the question then, could it be residential because it was too close to the property line. But you did approve something too close to the property line that was actually over 10 feet in average height which was not permissible. But it was presented as though it were 10 feet. And the whole point, Russ was telling you about the manufactured height, is that when it was approved it was over the average height of 10 feet. So there wasn't grounds then

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to approve it, not your fault, you didn't have the information to let you do it. That brings to our second request, because of everything that's happened, we're asking that you revoke the current permit, let us come back and start over and do it right where you have all of the facts before you, to make a decision that should have been made originally with input, a survey, shadow study, actual detriment. Not here it is, can we keep it. Oh, you said we couldn't. Then all of the violations that were complained of, all happened after the use permit. After you granted the use permit was when they found the new shower. They found the new kitchen. They found the unrestricted deed T they ground a brand new electrical, brand new plumbing and wonderful light system. All of that was in after your decision in April. >> M. Alvarez-Cohen: Okay, Bob? >> R. Allen: Rena, in this chronology of events that you include in your package, I'll just read it to you, one sentence. The last item, first of November, 2011, says the garage is list for rent, pictures of rental units show full shower and kitchen has been reinstalled. I haven't seen these picture -- I didn't see the rental listing, the one in the package was for the unit in the house. Are you positive this was of the garage? >> Yes, but I think my clients can justify it. I did not take the picture. I'm aware that's what was -- I was told it was there. In the garage. In the garage. Then what happened is every time the inspector came sheetrock showed up in front, then the sheetrock disappeared. >> R. Allen: I'd like to have somebody -- >> M. Alvarez Cohen: Come on up. >> R. Allen: I don't need to see the pictures, I know they built the stuff. I just want to know if the ad that is referred to here is the garage and not the unit in the house. >> Yes, so I was -- I'm a professor at Cal, a colleague was coming to take sabbatical. I was looking on Cal rentals for cottages. And this was ironically the day after the half bath -- >> R. Allen: Short version is okay. >> Is that what you're asking, where those pictures were from? It was an advertisement for the rental of what was called I think -- >> Where is the shower that the pictures are, is that in the house? >> No, in the garage. Pictures are from the garage. >> R. Allen: Thanks. >> M. Alvarez-Cohen: Okay. I think we're ready to close the public hearing. The four of us, any questions for staff, Sophie? >> S. Hahn: Can you clarify for me, what is the rear of the lot that this structure is on? Because the lot of the appellant actually has extra sides, it has five sides. We're unclear, what is rear, what is side on these lots. Because the rear setback for an accessory building is like 20 feet. And I don't see 20 feet. It's in the corner, it's right up -- I'm just, I'm a little confused about what the rear is, and why it wouldn't be set 20 feet from whatever the rear is. >> A. Sage: The code allows someone to reduce that 20 feet to 4 feet with an AUP. My understanding is the AUP included that

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reduction. >> S. Hahn: And the back is considered what goes back toward what is sort of a driveway? >> A. Sage: I believe so. I'm not confident of that. If that's not the back then that AUP from 20 feet would not have been required. >> S. Hahn: Can you go around it, it's four feet is required on the sides from 20 feet on the back. But it can be reduced with an AUP. >> A. Sage: Correct. >> S. Hahn: When was that approved? Is that part of what we're approving or upholding? >> A. Sage: I believe so. >> R. Allen: No. >> A. Sage: I'm reading the description. Again, I apologize to you all for my lack of familiarity with this case. I was expecting Claudine to be here. I'm doing my best. >> S. Hahn: No problem. I wasn't sure if this driveway was somehow mart of -- it's a separate parcel, right? >> A. Sage: Yes. >> S. Hahn: The back of the parcel that this is on, is right up next to it. >> A. Sage: Yeah. The back, I believe, would be the longest line on the side away from Parnassus. >> S. Hahn: Okay. I see, so that's how you decide what the back is. >> I. Tregub: It's that last finding. The last bullet point. Or the second to last. >> S. Hahn: It's modifying it down to four feet, 20-foot setback requirement, okay. >> M. Alvarez-Cohen: Interesting. Igor, then Shoshana. >> I. Tregub: Thank you. I'll raise this as a question. And I wouldn't make a fuss about it, except that it's both in the staff report and in the conditions. What staff suggests, if we were to approve this AUP, that conditions 13 be changed to condition 12 on page 2 in the second bullet point to the top. >> A. Sage: That would be fine. >> I. Tregub: Thank you. >> M. Alvarez-Cohen: Shoshana? >> S. O'Keefe: Two questions for staff. One is, I'm still confounded by this berm issue. Assuming what the appellants state is indeed what happened, is that legal? Can you just pile up dirt around the base of your building to decrease the height? The City must have faced this issue before. What is the procedure for where you start measuring from. >> A. Sage: The code is not as clear as it probably should be on that issue. There's a definition of existing grade and finished grade. And the definition of average height doesn't reference either definition. The definition of finished grade does have a reference to the lowest grade within five feet. So I don't have a clear answer for you on that. Generally, if we can tell that some one is clearly doing something egregious to get around the height, we will just kind of from a common sense standpoint say, that is not what the code intended.

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>> S. O'Keefe: But looks like we could put this, from the cheating category into the clever category. Like the code isn't too specific. And my second question was, if you could comment on the definition of a unit, if you have anything to say about that, we'd appreciate it. >> A. Sage: My first comment would be to read the definition. >> S. O'Keefe: Great. >> A. Sage: A building or portion of a building designed for or occupied exclusively by persons living as one household. There's also a definition of household. Which often we look at in these types of situations. I would be happy to read that. >> M. Alvarez-Cohen: Go ahead. >> S. O'Keefe: Please. >> A. Sage: Household. One or more persons whether or not related by blood, marriage or adoption sharing a dwelling unit in a living arrangement usually characterized by sharing living expenses, such as rents or mortgage payments, foot costs and utilities as well as maintaining a single lease or rental agreement for all members. Household and other similar characteristics indicative of a single household. >> S. O'Keefe: Thank you. >> M. Alvarez-Cohen: Steven. >> S. Donaldson: So there's so many variables here it's hard to pinpoint what one to talk about. So is the shape of the structure that exists now with that addition, it was properly applied for and permitted for, correct? >> A. Sage: The shape of the -- the shell. >> S. Donaldson: Yeah that, addition that went on the side. Not what goes inside of it, just that physical form. As well, there is a figure in the staff report, figure 3. >> S. Donaldson: Yes. >> A. Sage: I believe this question came up earlier. >> S. Donaldson: I'm trying to clarify it, again. If it was so, then why weren't the neighbors complaining then? I don't know what it meant. I'm not discounting it. >> G. Williams: In the plan you're bringing up again, reminding myself, this is the same thing we were talking about before. Figure 3, it says permitted floor plan approved via 2011 AUP. And it shows an area that appears to be an addition on the left. >> S. Donaldson: Was that after it was built or prior to its construction. >> A. Sage: I'm not 100% confident in answering that. But my understanding is that, yeah, I'm just sorry, I don't have all the facts. >> S. Donaldson: The owner says it was built with approval. I don't know either. We're talking about illegal work that was done in the unit. Their attempt to legalize it. Was, again, I'm not looking at all the writing right now, the sink and the minor things done with a permit or after the fact, then you found out further things that were illegal? Such as the -- >> A. Sage: Right. We have two notices of violation in our chronology table on page 6 of the staff report. We have a notice of violation in February of 2011. For a habitable accessory structure without permits. It doesn't give me enough detail to

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know what features that included, if it was a full bath, half bath, what have you, the basic idea it was no longer just a garage. And then we have a second notice of violation in November of 2011 after the first AUP was approved. >> I. Tregub: November 2012. >> A. Sage: Did I say 2011? 2012, thank you. And that was for conversion of garage to residential use without building permits. New sink and cabinets, shower and storage area, new wiring, new French doors and windows. I'm assuming that all of the work described there happened after the first AUP was approved. >> S. Donaldson: All right. >> A. Sage: Based on the way Claudine wrote this. >> S. Donaldson: They're asking to approve this as a legal living unit. >> A. Sage: Correct. >> M. Alvarez-Cohen: Shoshana? >> S. O'Keefe: I had a moment to think about the unit issue and I have another question. As of right now I'm persuaded by this detriment, from Rena Rickles, violation of density, there's already one rental unit on site, granting an accessory unit, exceeds the permitted density for. R-1A zone. I wanted to hear what you had to say if I believe there is a rental unit, do you think that means that we should not vote on this? Should vote against this? >> A. Sage: I will be happy to speak to this. Going back to the definition of dwelling unit, as you may remember, it is not tremendously specific or detailed as far as what features would have to be present to constitute a dwelling unit. But the way we have applied that definition, if it needs to have cooking facilities, and it needs to have a full bathroom and it needs to be completely separated from the rest of the building. There can't be an internal connection such as a door way that could connect to the rest of the house. Based on what I heard it sounds like those features are not present under which we would normally say this is a dwelling unit. But it does sound like the rental situation would not meet the definition of household, it sounds like there's a separate rental agreement or lease, that people are not sharing the living space together. And so where that would fall under the code, under exempted uses in 23.C.20. I'm going to go to that. Nick if you can pull that up, it would be helpful. 23.C.20, exemptions, exempted accessory uses, the renting of rooms and/or the providing of board in a dwelling unit to four or fewer persons, not living as a household, is permitted we right as an accessory use in all residential districts, provided that number one, the rental agreement is for periods of at least 14 days, number two the rooms which are rented are fully integrated within the dwelling unit that they have interior access to the rest of the dwelling unit. No separate kitchen, no separate address. So I think what this is saying is that it's okay to have a situation where you're renting a part of your house to some one and they're not -- as long as they don't have their own separate kitchen, separate address, and there is inferior access to the dwelling unit

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that's allowed under the code. There is an offstreet parking requirement. That requirement is .5 spaces, would be-half a space for every two roomers or boarders, I believe. I need to doublecheck that. >> S. Hahn: I want to point out, also, it says the rental is for periods of at least 14 days. And this ad here is nightly. I mean it's basically -- anyway. >> A. Sage: I am not trying to argue any outcome here or argue that the situation is compliant or not compliant. I'm trying to provide the facts of the code. >> M. Alvarez-Cohen: Thank you. That's what we appreciate, Aaron. Shoshana? >> S. O'Keefe: Just to make sure I understand what you're saying, this particular argument about density doesn't apply because that would -- that would be for an additional structure that was outside the house. >> A. Sage: It could be inside the house but it would have to meet the definition of a dwelling unit. >> S. O'Keefe: The density isn't an issue in terms of violation of the code. Perhaps we could make a detriment finding based on the excessive rental. As well, you are welcome to make whatever decision you see fit. The provision for exempted accessory uses, the Council has written the code that, type of activity is considered exempt from discretionary reviews. As long as we can verify what's happening does fall under those provisions and complies with that, I think there's a parking question that needs to be looked at there. But if that is in compliance, then I think you would have hard-pressed to use that as a basis for detriment. >> S. O'Keefe: Thank you for your opinion. >> D. Pinkston: On the question of the code interpretation, given the squishiness of the code definitions. The thing that was important for me to hear tonight, which is why I clarified with the applicant, is that the renters of this space in the primary dwelling do not share the kitchen. What does that mean? That means if they're living there for a week, they have another kitchen. The fact that the kitchen that they have consists of, what is listed in the ad, a microwave, a hot pot, a toaster oven, rather than a range and a kitchen sink, is atypical. With the applicant's own testimony that the renters in unit do not use her primary kitchen in the house, I think the interpretation of the code is fairly clear, that this functions as an accessory dwelling unit, whether or not it has a full kitchen. That it functions that way because it is, the house is not used exclusively for a household. This is governed by a separate lease. And part of the definition of the household is the sharing of living expenses in particular food and utilities. They may be sharing utilities but if they're not using the kitchen then they're not sharing food. I think if you link all the definitions together, the applicant has -- it's a confusing code interpretation, if you weren't entirely clear on that point I would understand that. I think the pattern is that you're renting a space in your primary home which functions like a second unit even though you rent on it a short-term basis. And

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you have a second unit in your yard when is problematic. The code clearly does not allow you to have two second units. Under no circumstances. So to me that was -- I was actually prepared to try and make findings to allow a second unit in the existing formerly existing prior to any improvements garage structure, because it would appear that -- went out there and walked the property today. Got a look at the view obstructions and the locations, the bathroom and the roof heights and everything else. One of the things that happens in hills locations and I did a lot of work in them in a former life, that grade and views are extremely difficult to interpret. And in this case it's a big lot but it's also a big lot that goes like this. There's a flat part at the top where the driveway is. And the garage. And then it goes downslope, it would be difficult to put a second unit for all practical purposes that people could get in and out of. Then the house at the bottom. I don't really, I think if the applicant wanted a second unit, one, that it could be in the backs of the formerly existing garage structure. And if we were to just for the moment pretend that all of the things that have happened to get to us tonight didn't happen and we were seeing a de novo application for just one second unit in just that existing garage structure, that we would probably say that was okay. If the side yard setback could be moved, the structure moved in, and they didn't put any active use areas of the new structure on the property line, in bathroom no, windows, nothing that's going to annoy the neighbors, whose deck is probably 20 feet from this structure. And they do look right down on to it. I couldn't verify view blockage. I was prepared to make findings to get the second unit in the garage back to what would be a code compliant condition, what we're supposed to do. What are the rules, how do we apply the rules so that they're fair, to this particular set of facts. The way the main house is managed with the second dwelling unit, essentially, functionally, according to the applicant where they don't share the kitchen, it is functioning like a separate rental unit, I don't know what to do. But by the time you spring the code pieces together, they have two second units on the property, you have to pick one. Get rid of the unit in the house and focus on the one in the garage or she's going -- and make the garage legal and meet the side yard setbacks and so forth. Or pick the one in the garage and get rid of the one in the house. >> M. Alvarez-Cohen: If she chose the latter and chose to use the garage as the second unit, she has to move the structure. >> D. Pinkston: Yeah. >> M. Alvarez-Cohen: That's pretty dramatic. I'm agreeing with you but I want to make that clear. >> S. Hahn: Is the public hearing closed? >> M. Alvarez-Cohen: It is. It can be reopened go. Ahead, Bob. >> R. Allen: I have comments. >> M. Alvarez-Cohen: I'm glad your eye moving it along. It's almost 9:00, captioner break. Do we have any other questions for staff? Hopefully not. Okay. Let's move forward with board comment. >> R. Allen: Break now?

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>> M. Alvarez-Cohen: No, let's get this over with. Bob? >> R. Allen: Okay. Well, I'm going to start with what I think the results should be. I think we should accept the appeal and deny the use permit. And I think that, I don't know that we can require that ZAB has the right to require removal of all of the new construction. But if we don't I think we should add wording to the motion to specify that that is what we think should happen and the City will have to work that out or not. One problem that may occur with that, is that I believe in the City, if something is built and the City -- if the City approves a permit for something that is not fully compliant with the planning code, and they do it by mistake, that we might not be able to demand that the bathroom add-on be removed. I don't know. What I think happened there is that it should never have been built without a survey. It's clear there was not a survey. And so it's sort of the beginning of the misrepresentation of what is going on there, that it was four feet from the property line, et cetera, et cetera, et cetera. Let me bounce around here a little bit. I think we should not go on to the second unit. We haven't had an -- anything in the application in the material about that. Speaking not from my own personal experience that people I know, I think if we got to the point of challenging two living unit, whatever "unit" means in a house, even if they didn't have kitchens, there would be this mass exodus from most neighborhoods in Berkeley. I don't think we should get into that particular subject. Do we want to suggest at another time that the City, the planning staff look at clarifying that whole issue? Probably. But I think it just muddies the water here. I was here when we denied the appeal and approved the exterior bath. In my opinion, first of all we have done many approvals of buildings that are within the required setback but existing conditions as this garage was. But I don't feel, I don't feel that the detriment to the neighbors is particularly the issue here. I approved that condition because I didn't consider the addition of the bathroom, even though it was done illegally, as to reach the level of detriment. That I thought we should deny the project. But I think the fact that the history is total, ignoring getting around not observing the code and doing this thing illegally is the heart of the issue. Because we can't let that happen knowingly within the City. And I would base the denial on that issue alone. >> M. Alvarez-Cohen: Okay. Is that a motion? >> R. Allen: Yes. >> M. Alvarez-Cohen: Is there a second? >> S. Hahn: I'll second that. >> M. Alvarez-Cohen: Okay. Any other comments? >> S. Hahn: Well, so first of all thank you, Bob. I feel the same way. I feel that many things are murky in the gray area. But when you put gray on top of gray on top of gray at some point we need to not be duped. Everything that we see here is possibly out of compliance. Possibly right up against the edge. But it's like all over the place. For me, it's just cumulative. The failure to follow very clear and obvious direction from staff, from enforcement. The excessive waste of city time and

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quite frankly these neighbors who have had to hire a really good, expensive lawyer and you had to spend so much time and money dealing with this. So I really, I pile on in agreement with your assessment that the way this is coming to us is really not something that we can turn our backs on. And that to me that alone is detriment. It's detrimental to the welfare of the City. For this kind of process. To go forward. I personally would, I think also we can make findings of detriment on loss of sunlight and views and I think we certainly can make those findings. And why not include them, I think we should. I also would like to ask whether you would accept an amendment to your motion. Where we would direct staff to bring back the underlying permit, the permit for habitable space. In maybe four months, pursuant to I believe it was a condition 13, if I'm remembering the number right, that said that if there were violations of that permit, it would -- it would come before us and we would have the opportunity to review it. Because I think that provides first of all the process that I believe was promised, but also it ensures that a couple of months from now, when that review comes before us, we can ascertain that they are, in fact, in full compliant with that original permit, the permit they're filing back on. And I would like the opportunity to do that. And I don't want the City staff or the neighbors to have to initiate it. I would ask a friendly amendment that we direct staff to bring a review of I believe it was may 5, 2012 permit. Before us in a few months. >> M. Alvarez-Cohen: Bob? >> R. Allen: I don't understand how you're tying that to the action we're taking tonight. Is that in anyway going to hold up the intent of the motion? >> S. Hahn: Not at all. So let me try and explain. I am seconding your motion to deny the permit and accept the appeal. When we deny it, should we deny it, they will fall back on the previous permit they have. That permit was issued in May of 2012 and it said that there should be no kitchen, there shall be no shower, they have to file a deed restriction and all those things which they are out of compliance with right now. That permit also said if they are out of compliance with that permit it would come before us and we would have the opportunity to review it. So they are currently out of compliance with that underlying permit, the one they are sitting on right now, and I would like the opportunity to make sure that that comes before us. >> M. Alvarez-Cohen: What triggers that enforcement of the earlier permit? >> A. Sage: The condition talks about, I believe, verified complaints, something along those lines. >> M. Alvarez-Cohen: Sophie is saying we don't want to have the neighbors come back and do the work again. It's already been triggered. >> A. Sage: I think what Sophie is describing is well within your powers to request of the Zoning Officer come back with a compliance report. One procedural question that I want to check on with my staff is whether the authority to actually revoke or

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modify that permit rests with the Zoning Officer or the ZAB. I'm not clear on that. >> M. Alvarez-Cohen: We can clarify that. Bob? >> R. Allen: You read us -- >> S. Hahn: I can reread it. >> R. Allen: I don't see why we need it to come back in two months. We can make that as part of the findings for reasons to -- >> S. Hahn: My concern is that staff claims it's up to them whether that happens. But if we direct them to do it, it's more likely to happen. >> M. Alvarez-Cohen: You want to make a substitute motion to take it out of Bob's hands? >> S. Hahn: Sure. >> R. Allen: I won't support that substitute motion. >> M. Alvarez-Cohen: We'll vote on that first. Is there a second? >> S. Hahn: The substitute motion is the original motion to deny the permit. Are based on detriment through general welfare, through obstruction of light, and view. And to direct staff pursuant to the use permit issued on may 2, 2012, condition 14, to review the permit which is currently out of compliance and consider the imposition of additional conditions or revocation. >> M. Alvarez-Cohen: Is there a second? >> S. O'Keefe: Yes. >> M. Alvarez-Cohen: Comment? >> I. Tregub: I wonder if there might be a cleaner way to do this, which is to take two votes. The first one would be on Bob's motion. And separately we could vote on the matter of the dwelling unit. >> M. Alvarez-Cohen: No, let's do it this way. If there's a second for Sophie's augmented motion we'll vote on that. If there isn't we'll go back to to the first. Shoshana? >> S. O'Keefe: I'll make it more complicated. I'll second the motion. I'd like to make a small proposed amendments to Sophie, that we take out the view, the finding on detriment based on views. I feel like we have had a lot of -- I am sympathetic to the neighbors' concerns about views. But we have had a lot of similar amounts of view restriction come before us and generally not made that finding. I prefer to steer clear of it and I support the idea of it. >> M. Alvarez-Cohen: Sophie? >> S. Hahn: I accept that. >> M. Alvarez-Cohen: Prakash? >> P. Pinto: I accept that about views. It's really we've seen worse. And approved a lot worse. >> M. Alvarez-Cohen: Good observation. >> P. Pinto: There's no grounds for that. >> M. Alvarez-Cohen: George? >> G. Williams: Are we simply asking to oversee what the staff has done? It sounds like the motion is a reflection of mistrust of the staff to follow up -- >> M. Alvarez Cohen: If that's your interpretation you don't have to vote for it. We're trying to put teeth into this.

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>> G. Williams: What would you add to what the staff would otherwise do? >> S. Hahn: I'm not pulling that, I'm not making that one up. The only permit, which is the permit they have right now, right now they have no other permit. The permit currently in force specifically states they will not have a kitchen, they will not have a shower, they will not have a bunch of things, they will -- this was, they have had a year to perform on that. The violations that we have evidence of, we have the letter from staff, is on this permit. >> G. Williams: I understand. >> S. Hahn: This permit also says it is subject to review imposition of additional conditions, a or revocation if factual complaint is received by the Zoning Officer that the maintenance or operation of this establishment is violating any of these or other required conditions. So it's coming from the actual condition in the permit. >> G. Williams: But that actual condition is silent as to who is to do that followup. Customarily it is done by the staff. I don't think the ZAB should be getting in the business of reviewing what the staff is doing, whether they're doing their job correctly. >> A. Sage: I think I have a solution, I would suggest that staff is directed to come back with a report on the compliance with all of the conditions of the previous AUP and that if permissible, according to the law, according to procedures, whatever, that the ZAB would then be in a position to take action to modify or revoke that permit. >> M. Alvarez-Cohen: I think that's a good clarification. The reason why I see a subtle difference, journal, the staff, the ZAB is basically acting on behalf of the neighborhood to make -- take the trigger the next step. It is a subtle difference, maybe it's not a big deal, that's what the second motion is. >> S. Hahn: And I accept the rendition of it. By staff. I accept their wording of it. >> P. Pinto: We're taking two votes? >> M. Alvarez-Cohen: No. Sophie's substitute motion first. >> R. Allen: I think we should make it two separate motions. I'd support what you're saying as a separate motion. >> I. Tregub: You would have to withdraw the motion. >> M. Alvarez-Cohen: Bob, basically what you just said -- >> R. Allen: Let me explain. I want to be clear tonight that we are accepting the appeal, denying the AUP and requesting that all work, all new work done on the garage be removed. And that's to me that's one action. The second thing that I hear Sophie, is you want a reading on, and we can make this a condition as per the original approval that you have. >> S. Hahn: If there's a clearer way to do it, I'm amenable to that. >> R. Allen: That's what I would make, as per that permit, but if you want to have it come back to us for a further discussion, I just don't want to -- anybody in the room to think they didn't make a full decision that's going to come back in a month for more stuff. That's my problem with it.

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>> S. Hahn: So assuming we're agreeing that we will have two motions, one a full motion, your original motion, that denies. And then we will have a second motion that requests this review and that you're supportive of it. I will withdraw my substitute motion and I think -- >> M. Alvarez Cohen: Staff, if we break it into two, I hate to be protocolish, but if we break it into two, are we acting on something that's not before us? If we put it together in one motion and one vote as the substitute motion Sophie offered, then, Bob, we're doing what you want and we're just adding icing on the cake. >> D. Pinkston: All we're asking for is a report back. >> M. Alvarez-Cohen: We're not having a decision, just an action. I think we should vote on Sophie's substitute motion, seconded by Shoshana, and let's move on. >> S. Hahn: I reinstate it. >> R. Allen: Can I ask will you include the wording in your motion that we require that all new construction on that garage be removed? >> S. Hahn: Absolutely. I would like to restate my motion. >> M. Alvarez-Cohen: Do F. You do it succinctly. >> S. Hahn: We're almost done. The Bob is going to state the first part of the motion for me, he knows how to read my mind. What is the first part of the motion. >> R. Allen: We're going to approve the appeal and deny the conditional use permit and we're going to request that all new construction on that garage be removed. >> S. Hahn: That's exactly -- >> D. Pinkston: I call the question on that motion. Then just make it much cleaner as two motions. >> S. Hahn: The second part of my motion comes from your mouth, exactly what you said. >> A. Sage: Okay. >> S. Hahn: That's my motion. >> G. Williams: What did you say, Eric? >> A. Sage: I have two important procedural questions. First of all, I want to be clear about the findings for denial of the only thing I herd that everyone agreed to is basically the pattern of unauthorized activity that has happened. >> R. Allen: I would add to that, that they are not in compliance with the permit they were issued. >> A. Sage: Okay >> S. Hahn: That's what I wanted to say. >> D. Pinkston: We need to add more findings to that. That's why I think it's helpful to separate them. But I think the additional findings are that the second unit does not comply with the existing rules for second units. Most notably setbacks. That if this were a de novo application, issues like detriment, shadow studies would have been analyzed which have not been thoroughly analyzed as if this were a new second unit. And as a result, I think that the design that we're being given does not minimize neighbor impacts the way it should. It should have had active use areas removed from the proximity to the adjacent property lines. So that those bathroom active use areas closer

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to the owners land and not right up on the fence line. And that the view blockage issue could easily have been eliminated. But was not because we were not ever given a chance to do that. Because it violates the setback rules and it doesn't minimize neighbor impacted detriment. We have to have findings for denial. >> M. Alvarez-Cohen: You introduce view back night. >> P. Pinto: I don't think that that is -- >> D. Pinkston: Take view out. >> P. Pinto: There's no basis for. That I agree on the sun, we didn't get those studies, but that does leave it open for them to provide that later. I'd rather be harder with the clear motion. Clear findings even if it's one or two, than kind of layer this. >> D. Pinkston: That's fine. >> M. Alvarez-Cohen: Neighbors, I'll have to ask you to wait 10 more minutes. We're going to take a break and get this right and you're going to get your way. >> S. O'Keefe: We can continue it -- >> M. Alvarez Cohen: No, just take a 10-minute captioner break. We have to take a break at two hours. It's not frivolous. [ Short break ] [ banging gavel ] >> M. Alvarez-Cohen: We have a one-minute warning, we'll get started in one minute. >> M. Alvarez-Cohen: Let's get started. >> M. Alvarez-Cohen: Let's get started. Here's what -- we're going to have to wait 30 seconds. There's Prakash, okay. Let me recap where we are. Where we want to go. Bob made a motion to approve the appeal. And then Sophie asked for that motion to be augmented with direction to staff on a previous use permit. And Bob didn't accept that initially. So Sophie made a substitute motion. And now, we're talking about trying to pursue that substitute motion but with findings that are more precise. And is there a commenter who has findings that they want to propose? Let me start, I'll start with the substitute motion F that doesn't work we'll go back to Bob's base motion. Sophie, do you have -- you want to maintain the substitute motion? >> S. Hahn: Yes, I do. >> M. Alvarez-Cohen: Give us findings. >> S. Hahn: Motion to deny the underlying permit and uphold the appeal. With the stipulation that they tear out all new construction including the bathroom because they misrepresented the distance the property line when it was first put in. Finding of detriment on the general welfare finding, the totality of the circumstances surrounding this permit and the structure are detrimental to the City both as an entity and as a law -- as an entity that is administering the laws and rules that we all are asked to abide by. I think that there is also detriment in the violation of the setbacks for administrative -- I'm sorry, an accessory dwelling unit. And that the siting of things create excessive impact. The siting of the bathroom addition, the way the use of the surrounding area impacts the adjacent property is

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detrimental. Those are the findings. In addition, the motion also directs staff pursuant to finding condition 14 of the use permit that was issued on may 2, 2012, to bring the may 2, 2012 permit back for review and possible imposition of additional conditions or revocation because there is a factual complaint on the record that the maintenance or operation of this establishment violates the condition. >> M. Alvarez-Cohen: Okay, take a breath. George, I'm going to give Georgian opportunity to tell you what is wrong with some of those findings then I'll have Prakash propose a more limited version of findings. George? >> G. Williams: I think it's unprecedented to have a definition of general welfare as broad and as vague as stated. I'm not unsympathetic to the desire to deny the applicant the fruits of their ill gotten gains so to speak. But I think we ought to be cautious and make certain we have findings as strong as we can make them. So I think it's possible for us tonight to declare our intent to deny the AUP and ask staff to come back with suggested findings at our next meeting. >> M. Alvarez-Cohen: That's one option. Prakash, want to propose findings now? >> P. Pinto: I think there's three specific findings I think we can make. Although I want to say to the residents, we do understand your pain. And the fact you have had to be on this constantly. And that's not your job, necessarily, that's the City's. There was a lot of missteps that happened. I think we're trying to find a way to kind of sort this out. However we have to have sound reasoning to make this decision. That's the complication we're having here. I would, based on three simple ones, then we can elaborate. One is setback, we're allowed to go from 20 to 4 feet, they're asking for 3.1. 4 is the minimum. That is a detriment in my mind. We're going below the minimum we can allow, one. Two, sun, shade and shadow. That has been raised in the hearing. However there's nothing in our packets to confirm or deny that. And it is directly adjacent to the property. Because of the topography and the slope, there is a genuine impact, I feel, in terms of sun. Sun impacts. There's no information to support or deny that. And then the third is parking, actually. The added in our packet states that there's free parking available for that unit, whatever you call it. I'm calling it a dwelling unit. In that house. That means both spaces are technically taken. So that third space is not being provided. So that to me is a very clear finding. I would leave to it the Board to find more. >> S. Hahn: Are you requesting a friendly amendment that I would accept? >> P. Pinto: Yeah, I think so. >> S. Hahn: I accept those. >> M. Alvarez-Cohen: Great. We have setback, shade, sunshine and shade, and parking. Go ahead, staff. >> A. Sage: If I can comment briefly. My understanding is that the AUP would include moving the wall so that it does have a four-foot setback. That is what the Zoning Officer approved. I would have you -- encourage to you focus on why four feet is

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detrimental not three feet. That is not technically what the project description is. >> P. Pinto: I'll use the sun and shadow, it's still adjacent to the property line. >> A. Sage: My understanding is that this AUP did not contemplate any expansion of the building envelope. That any expansion that had already occurred under the first AUP. So is that the time when the shade and view and bulk impacts would have happened. You're welcome to -- what about the parking? >> P. Pinto: I don't know why we can't reintroduce that as an issue given that so much has happened with that project and it's not clear what has been built and what hasn't. I can claim that the drawings before us are not actually clear enough to tell us one way or the other. There's no report that can justify what's been built is actually what was in the permit. So that in itself leads us to question is it really not a detriment or not. I would actually argue that back and make that a finding, actually. >> M. Alvarez-Cohen: Denise? >> D. Pinkston: Is it okay if I ask a question of it appellant? >> M. Alvarez-Cohen: What would you ask? >> D. Pinkston: Would you be willing to continue this item so that we had sufficient time to develop clear findings to deny the use permit. Because I think that would be the cleanest way to ensure that the findings are clear and they are appropriate to the nature of the application. >> M. Alvarez-Cohen: No, no, I did ask that question offline. Maybe we should -- got an answer. Put night the public record. I'll open up the public hearing, would the appellant come up. Okay, wait a second. Denise, ask the question succinctly. >> D. Pinkston: Would you be willing to continue this item so that we can make appropriate findings for the denial of the use permit. >> I heard the question and I have, my client has a question to the answer. Which is if there's some kind of way they can be assured that this is going -- the vote is going to be to deny and the question is how do you firm up the findings so that you have something that is a stronger decision then the answer is yes. >> M. Alvarez-Cohen: We've done this before. Staff, you want to give us some guidance. >> A. Sage: To make the findings tonight? >> M. Alvarez-Cohen: No, not make the findings tonight, but direct the staff to make the findings and make the vote to accept the appeal. >> A. Sage: I apologize. Board Member Hahn was saying something while that was happening. I didn't have my full attention. >> Is it possible to indicate the intent of the commission this evening and vote on a final resolution with final findings at this meeting. >> M. Alvarez-Cohen: We've done it before. >> A. Sage: That is the approach I recommend. >> M. Alvarez-Cohen: Then do we need a motion on that? Okay, who's going to make that motion?

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>> S. Hahn: I have a motion on the table and I would like to clarify one thing with staff before I withdraw it. I would have to withdraw it. >> M. Alvarez-Cohen: Or we can vote on it and it can fail. >> I. Tregub: Or amend it. >> S. Hahn: I'm not sure of that. But before I withdraw it, I would like staff to clarify one very important thing for me. >> M. Alvarez-Cohen: Go ahead. >> S. Hahn: So if we put the findings over to the next meeting, does it mean that the matter is still open and that we have to have a public hearing and we can hear more testimony? Because I do not want these appellants to have to spend their money or time coming before us. And my concern with not taking a vote on it tonight and continuing it is that we have, we're dragging these people through another process that the applicants get another bite at the apple and I really think that we need a final conclusion. >> M. Alvarez-Cohen: So the appellant, we just asked them and they were open to this process of holding it over. With that risk. We have two choices here. We can go with weak findings and make it definitive now with a risk of appeal. By the applicant. Or we can go with better findings later, with less of a risk of successful appeal. Shoshana? >> S. O'Keefe: I think I have a similar concern of Sophie's, but I have a question. Which is if we commit to denying this are we then going to hear more information or is it just going to be findings submitted to us next time? I'm not comfortable committing to a vote if I don't have all of the information I'm going to have. Is it just going to be findings and no more testimony and no more documents? >> G. Williams: Just to look at the findings. >> M. Alvarez-Cohen: Well, staff, the previous times, we did have a public hearing, I don't recall people speaking. Do we have to have a public hearing if we do it this way? >> A. Sage: In my recollection there's been many times when the ZAB has done this. What we are talking about doing, continued the item but having closed the public hearing. What I suggest is do that, and then I will doublecheck with the City Attorney to make sure whether or not folks still have to be given the opportunity on speak when it comes back to you. >> R. Allen: My recollection is we have often made the -- approved the motion in this case to deny the AUP and directed staff to come back with the findings. So that it's not a public -- we've made the decision, there's no additional public hearing, and the final findings will be determined at the next time we hear it. >> A. Sage: I specifically talked about this with Eric this afternoon. Because we foresaw the continuance was a likely option. He said that our preference would be continue it, let us come back with findings. I think that the most clean and defensible way to do it is not to take the action pursuant to some findings that are not before you tonight. >> M. Alvarez-Cohen: That's staff's recommendation. >> R. Allen: That would be without additional public hearing?

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>> A. Sage: My understanding is that is permissible. But I will confirm that. >> M. Alvarez-Cohen: The appellant was okay with that. Let's start with Sophie, do you want to -- >> My recollection on past procedure is that of Commissioner Allen, which is, this has happened before, where the ZAB takes a different position than staff does. Staff has said we want to give you the findings because we haven't prepared the findings for the direction in which you went. But that the vote was taken, the public hearing was closed, and it was just -- the only thing that was agendized was the findings and nothing else. Not the decision. >> M. Alvarez-Cohen: Yes, that has happened. Staff are you okay with that. Or are you really recommending against that. >> A. Sage: I'm okay with that. Again, I still have the question of if there's an agendized item about findings, under the Brown Act, does some one have to be given the opportunity to speak on that item. That's the question I would want to check on. >> M. Alvarez-Cohen: Maybe they do. But maybe the appellant will realize there's low risk of them having to put an Army out here, we don't to have put the burden on them. You're okay with this approach. >> A. Sage: Yes. >> M. Alvarez-Cohen: Igor, you have something to say in I'd like to call the vote. >> I. Tregub: Yes. I agree with the approach and I think it can be agendized in such a narrow way that if any public testimony, if there's a need to have it, would be confined to just discussing the findings not Lee opening the issue anew. >> M. Alvarez-Cohen: Okay. We can take the findings issue off the table. The substitute motion that Sophie has is the augmented version which approves the denial but directs staff. Do you want to continue with that vote? >> S. Hahn: I'm going to accept the amendment that erases that and that moves that we continue it to the next meeting. >> M. Alvarez-Cohen: That's not what I asked. We want to take the vote and direct staff to bring us findings. >> S. Hahn: Okay. >> M. Alvarez-Cohen: Anyone want to make that motion? >> S. Hahn: I'm sorry. Okay, I'm sorry, it's a little complicated. I'm sticking with my motion. >> M. Alvarez-Cohen: Anyone want to make another substitute motion on what -- Bob? >> R. Allen: One comment to Sophie. I wasn't clear that your motion, your motion required that the staff come back to us about the prior permit. But it didn't say that one of our findings is that they did not -- that they ignored and did not follow the prior permit. >> S. Hahn: I did say that but I'm happy to restate it. That there is an active violation that triggers the review. >> R. Allen: Thank you. >> S. Hahn: I'm keeping my motion. And we will vote on whether to accept and uphold the appeal and deny the underlying application, with the findings that were put forward, which will

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be further refined by staff, brought to us at our next meeting, at which only the findings may be discussed and not the underlying application. And directing staff based on the existing violation of the existing permit to undertake the mandated review that is set forth in condition 14 of the permit. >> M. Alvarez-Cohen: Is the seconder to the motion okay with that? >> S. O'Keefe: Yes. >> A. Sage: Let me make sure I understand. The substitute motion is the terminology uphold the appeal, deny the AUP, that's an action you would take tonight. Then you would agendize I guess a separate action to adopt findings that staff would return with. >> S. Hahn: Based on the findings you have heard. >> G. Williams: Does that mean we have to accept in principle all of the findings you have heard? >> S. Hahn: We will be able to discuss them at the next meeting. >> G. Williams: We aren't pound by your listing. >> S. Hahn: No, but we give them direction. >> A. Sage: We would prepare draft findings based on the findings Sophie gave us and then you review that. >> D. Pinkston: The vote we're taking tonight is based on the findings in the record that were discussed tonight after the totality of the hearing, all of the written information provided to us, all of the testimony from the ZAB members, and that you will draft them. Because our vote has to be based on those findings. Which you will clarify when you bring it back. >> A. Sage: Is that acceptable to the maker and seconder? >> S. Hahn: Yes. >> S. O'Keefe: Yes. >> S. Hahn: Including the direction on the second piece. >> M. Alvarez-Cohen: Roll call. >> A. Sage: Board Member Pinto. >> P. Pinto: This is Sophie's -- so I know what we're voting on. >> S. Hahn: We're voting to uphold the appeal and deny the underlying -- >> M. Alvarez-Cohen: We have heard it already. >> P. Pinto: Yes. >> Board member Allen. >> Yes. >> Board Member Pinkston. >> Yes. >> Board Member Williams. >> Yes. >> Board Member Donaldson. >> Yes Board Member Hahn. >> Yes. >> Board Member O'Keefe. >> Yes. >> Board Member Tregub. >> Yes. >> Chair Cohen. >> M. Alvarez-Cohen: Yes. >> G. Williams: Can I -- >> M. Alvarez-Cohen: Wait. 85 Parnassus road, your appeal of the

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use permit has been approved and it will come back for findings and eventually appealable to the City Council. Let's move on. >> G. Williams: Mike? >> M. Alvarez-Cohen: George? >> G. Williams: Could I ask staff to explore the imposition of penalties in a situation like 58 Parnassus? I know there's always a threat of $1,000 a day violation, for every day they were in violation of a permit. Which is absurd. But it seems something that compensates the City for the staff time put into enforcement and hearings such as this, could warrant it. Could you come back with some thoughts about that? >> A. Sage: Sure. >> G. Williams: Thanks. >> P. Pinto: One followup. I asked this question a while ago but I found that's the City's tradition to not necessarily enforce that fine. Can you follow up with that, how often it is enforced? If we do levy fines? It seems it's in the books but it's not really enforced. That was the answer I got back from planning staff. This was last year some time. >> A. Sage: Do you want me to answer that right now? >> P. Pinto: Why don't you go -- I'm giving you a chance to -- >> A. Sage: It will be brief. We have a fee for a double fee, whenever some work is being done that is authorizing work that had been done without permits. Whenever the permit requested is to authorize something done without permits. Our practice has been to use that to apply that when some one is digging in their heels and has received a notice of violation and is not cooperating with us to correct the violation. >> P. Pinto: Would this qualify? >> A. Sage: I don't have enough facts, not familiar enough with the case to say whether it qualifies in this case. >> P. Pinto: It would be nice if you can come back and let us know if this qualifies or not. I'd like to understand the gray line, what is the line that we as a city take on this. I think it's important. These violations happen throughout the City and I think it's -- it is upsetting to neighborhoods and neighbors. They spend a lot of time. It really does go to the issue of enforcement. It would be helpful to know. >> A. Sage: Okay, sure. >> M. Alvarez-Cohen: Okay. Let's move on. To item number 4, 2222 Ninth Street. Pamela here? >> A. Sage: Derek farmer, contract planner, is the case planner on this and he'll give the presentation. >> M. Alvarez-Cohen: Denise that was not typical. >> D. Pinkston: I'm glad. >> D. Farmer: Good evening. The item before you is use permit number 2014-0008. There are two components to this use permit. At 2222 Ninth Street. The front residence which is the existing residence on the property is currently configured as a two-family dwelling although the first floor of the dwelling has been used in the past to support a church use next door. This included two unpermitted kitchens and several rooms used for community activities for the church next door. The church use has been discontinued and that property has been we built as a

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single family residence. So the reconfiguration of the current dwelling would take that first floor and reconfigure it in a more traditional bedrooms and mud room. Interior access to the second floor. The first -- front dwelling would be configured as one cohesive two-story single family dwelling with interior access between the first and second floors. It would include the removal of approximately 475 square feet in the rear of the dwelling which would reduce the overall size to a little over 2200 square feet. It would also enclose the existing front second floor patio. And that would be part of the administrative use permit before you as well. That would include basically alterations that would be within the existing 20-foot setback. 9 second component is the construction of a new single family dwelling at the rear of the property. 1526 square feet with average dwelling height of about 7'10", maximum height a little over 23 feet. Staff has done a consideration based on the findings in the R-1A district as well as the City of Berkeley's general plan and the proposed two-story dwelling in the back would be consistent with the development standards for the R-1A district. For setbacks, height, it's considerably lower than the maximum height for a dwelling. In addition the configuration of the dwelling in the rear would be consistent with similar rear yard dwellings that are occurring on Ninth Street. And there's also a rendering that was provided with your packet earlier this evening which shows sort of a view from the front of how the rear dwelling would look. It's a little bit smaller than the rear dwelling which ZAB permitted recently next door at 2218 on Ninth Street, a little larger than the one on the other side. It would be sort of like a midsized dwelling for what's been permitted in the past for rear yard questions. In addition to that, there's a key finding in the City's general plan housing element which is policy H-16 and this will provide for dwellings suitable for households with children and large families. The findings in here talk about nearness to transit, open space, recreational amenities. This would be consistent with that general plan housing element policy. For these reasons staff recommends that the ZAB approve the use permit and the AUP subject to findings and conditions of approval. Thank you. >> M. Alvarez-Cohen: Thank you. Any questions for staff? Igor, go ahead. >> I. Tregub: Can staff discuss communication that may or may not have happened with the Rent Board to try to ascertain the nature of the unpermitted unit? >> D. Farmer: Question, thank you. I contacted the Rent Stabilization Board to see if that property was in their inventory. And it was not in their inventory and there was no record of that address, of that property being ever in the Rent Stabilization Board's inventory. It's never been in their minds a rental unit. It was just that the bottom floor was being used to support the church activities that were going on next door. >> I. Tregub: So it was a unit per se but the use of it may not have been residential in nature. >> D. Farmer: Correct. >> I. Tregub: Thank you. Those are all of my questions for now.

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>> M. Alvarez-Cohen: Let's open up the public hearing. We have six speaker cards starting with the applicant, John Newton, want to start? >> How do you do, I'm Tom Anthony, I'm the applicant. I'm a real estate broker developer, I live in Oakland. But I've done a number of projects in Berkeley. Rev. And Mrs. Harris bought the former church property in the early 1960s and they passed in the last few years. But they were close to 90 years old when they passed. The church was purchased two years ago and obtained approval to build two units at 2218 and 2220 Ninth Street. You can see the fliers from the open house we had this past weekend. Mrs. Harris hung on for a few more years, passed about a year and a half ago. The family then put the former home at 2220 -- 2222 on the market. We purchased that last fall. And we then applied to build these two units at that location. The daughter -- the niece was the executor of the estates, raised in the church. When I purchased the property I checked with the Rent Board to see if there was history of rental activity and there was no history when I called the rent board, in escrow to buy the property. And I also got notarized statement from the niece saying what the use of the property was. She said that it had been used to make sandwiches for church activity, there were never any tenants in the building, her aunt and uncle lived in the building, and used the downstairs for church activities. That was submitted as part of the submittal. Again, I think there's three units, three properties in a row, then, there. The two on either side both have secondary units in the back. Smaller than one and bigger than the other. There are a lot of schools in the neighborhood and at the open house I had a lot of family liking the configuration of the properties and provided the bedrooms required for kids and families. Berkeley as a real estate broker Berkeley has a number of two-bedroom one bath bungalows and not multi bedroom homes to meet the needs. It is an appropriate development. The properties are very attractive and I think it's a real benefit on the neighborhood. Thank you. >> M. Alvarez-Cohen: Any questions for the applicant? No, all right, thank you. >> Hi, I'm John Newton, I'm the designer of the project. And I was also the designer of the two houses adjacent at 2218 and 2220. Properties adjacent. As you can see on the plans we have a shared common driveway that is then serving as the parking access for 2218 and 2220. Then providing parking access -- proposed rear unit. Basically I designed the project to clean up the front house, both inside and out. To make an attractive smaller house in the rear. Each house has parking, has a nice yard. We included a landscape plan in more recently that was developed. And I know you are probably tired, so I'll cut it short and I'm available to answer questions. >> R. Allen: One comment, I went to the property today when there was an open house and went into the house on the street. It's a terrific job you have done. >> Thank you. >> M. Alvarez-Cohen: Thank you. Let's go to Terry brown, James Williams, Moni law.

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>> You have my card? >> M. Alvarez-Cohen: I don't know, did you fill out a card? >> I did. >> M. Alvarez-Cohen: Are you Katherine Harr? >> Yes. >> M. Alvarez-Cohen: You're batting cleanup. >> You may get sooner than later I was going to read the letters from the neighbors who could not come in support of the dwelling. I understand you have copies of all of the letters. So if that will suffice. >> M. Alvarez-Cohen: That will suffice for me. >> Sounds good. >> M. Alvarez-Cohen: You're all set in. >> I'm set. >> M. Alvarez-Cohen: You're Terri Brown? >> Yes. >> M. Alvarez-Cohen: James Williams? Maybe I'm not pronouncing it correctly. Oh, me went home. Moni Law followed by Katherine. >> Good evening. I'm Moni Law, I'm U.C. Berkeley graduate, class of '82. USF law school, class of '86. And I moved back here three years ago to age in place. I'm a tenant and I'm here in my civilian capacity not my job. My day job is as a Rent Board housing counselor. So my concern as a citizen, I tend to go on my own personal time to a lot of City Council meetings, to a lot of ZAB meetings, Planning Commission, other commissions. Concern for affordable housing and the retention and preservation thereof. I'm not sure procedurally substantively, it may be a beautiful project. I don't actually know. But procedurally, I do know that there was conversation briefly about touching base with the Rent Board. When some one calls me and asks if it's no our database, I the it may not be in our database but that doesn't mean it's not subject to the ordinance or rent stabilization or possible registration. There are a number of properties that we send over to investigation and people do onsite inspection, et cetera. Those three people involved in that process actually are not in the office today. And I got an e-mail exchange from my executive director to his knowledge this property had not been fully vetted. With respect to process and procedure, I know you have that conversation at length earlier in an earlier public hearing about procedure and process and ensuring that you do it right the first time. I would suggest that you defer this particular decision, it wouldn't be a detrimental harm to this project to my understanding. Also I don't know if these are for purchase or rented, if they're rental properties, for home to rent or for purchase. But if they're rental properties, it is our hope to preserve rental housing in Berkeley. That's my civilian hot. Also I just wanted to make sure perhaps you might have a formal signoff procedure, if you don't currently have one, as they call it blue back contracts, I've heard that term, I don't know if you have that between our agencies to ensure that we do formally ensure that all projects that have potential impact upon formerly residential units would have been reviewed by the Rent Board prior to getting to your desk, to your vote at the dais would be

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a really good process to put in place. But I think it doesn't. I have come to these meetings that have residential history and you never had it reviewed by the Rent Board. I wanted to ensure that process gets undertaken at each turn. Thank you and hopefully we have more affordable housing in Berkeley, please. These are probably $3,000 to $5,000 per month in rental and hundreds of thousands of dollars above asking price when they get on the market, they're getting multiple offers on most properties in Berkeley. >> M. Alvarez-Cohen: Igor? >> I. Tregub: I have to disclose that the ex parte communication was with a member of Rent Board staff. That member of staff was you, I wanted to confirm to the best of your recollection have you or have you not ever been contacted by any agent of the Zoning Board or Zoning Officer about this particular property. >> Not to my recollection. I talk to 20 people a day, hundreds a week. If it's not in our database. So the analysis doesn't end there. Some one can call and say is this in the database. No it's not. It's a condo, single family home or new construction, those aren't required to be registered. Do they still have rent control protections, yes, eviction protections and interest and security deposit. The analysis continues. The next question is, should it be registered. Yeah, we find all these duplexes are not actually registered but should be. We find properties that are inlaw units that are illegal but never registered, they should be. It's not an answer, just off the top, which is why, again, I suggest a formal procedure be implemented. It's my understanding the City Council actually required that mandatory language as a lawyer, but the lawyer hat on, the City said that to my understanding any property that has a potential of removing a residential unit that may have been a rental unit under rent control or otherwise should go through the Rent Board first prior to going to the ZAB. I don't know if, again, that is happening on each occasion or been formalized but that's my recollection. Because I go to City Council meetings, I have heard that decision was made and a directive was made. Just to incorporate and institutionalize things makes for more efficient governance and less decisions that are arbitrary, capricious and irreversible. >> R. Allen: Question. Is your concern, and/or jurisdiction over the front house because the back house is a new unit? >> Well I don't know anything, as I said, I just think it calls for review to ensure that it was fully vetted and investigated. I don't know. When we look at properties our investigator actually goes out to the property, looks at the property, they may have talked to people like the niece, she may have had a statement that says for 30 years it's been a church property, never residential since 1980 when the voters passed rent control. So it wouldn't have any history since 1980. I'm not making a call either way. I'm saying procedurally it's my understanding that no one with a speaking authority to call a housing counselor at the front desk and say is it in the database does not suffice for a full review. >> R. Allen: Specifically the project is convert the house on

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this street that was living, was a living unit, and build a new one on the rear. Do you have any jurisdiction over new one in the rear? >> Possibly. But, again, I don't have authority to say. I'm not saying -- when there's construction and there's a removal of a unit which is my understanding, I thought there was a removal -- >> R. Allen: There's no removal of the building, it's totally new. >> New construction is partially exempt from rent control. Doesn't have to register and the rent isn't controlled. Rents are going up high in Berkeley they can raise the rent without rent stabilization. But it has some protections of new construction. >> R. Allen: Thanks. >> I. Tregub: I know it's late, but this is important. I think I understand the last of Bob's question, so what I wanted to ask you to clarify is, is the main thrust of your concern part one of the use permit, just below the title it says use permit blah, blah, blah, to alter, blah, blah, blah. And removing the unpermitted second unit. >> Right, that's what I underlined in my marked-up copy of the agenda I didn't plan to come here tonight and I got an e-mail with some exchange with Eric from planning at 4:00 and I'm leaving for four days, I haven't even packed for going to see my mom in L.A. When I see, yeah, removing an unpermitted unit, that's a red flag. When I see my name in an e-mail, another red flag. That's why I'm here I would rather not be here at 9:45 at night. Again, it's my civilian hat. We're going to have some one else who will speak to Rent Board issues. >> S. Hahn: I'm trying to clarify what you might recommend here. This is not vetted, it's possible that a rent controlled unit, whether it was registered or not, is being demolished. Whatever you want to call it. Are you suggesting, perhaps, we should continue it so that that issue can be resolved? I'm trying to get clear, you're saying it hasn't been resolved and it may exist. >> To my understanding there's a potential risk of being an outstanding issue which could resolve to say green light, still, after it's been reviewed. My Executive Director is out of town but e-mailed in this exchange said it was suggestion to have it continued so that we would at least have the procedural step taken. >> S. Hahn: Great, thank you. >> Any other questions? >> M. Alvarez-Cohen: I think we're all set. >> Thank you, commissioners. >> M. Alvarez-Cohen: Call up the last speaker, Katherine. >> Katherine Harr, sat up there with you before. I feel as strongly about the demolition ordinance and the neighborhood preservation ordinance and not losing rent controlled units even one at a time. As the vice chair of the Rent Board, the Board has taken no official position on this. But I have a lot of information. And it's my understanding that the City Council has directed planning staff twice to include a written report from

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the Rent Board any time that the ZAB is to see a multi-unit building that involves an elimination or demolition. We have one staff member who used to be with planning who we think ills the most appropriate person to interface with planning and provide written reports. A little while ago I was here about another duplex on Ninth Street, that was occupied and was characterized by the planning staff as a single family home. And I came here to ask you to hold it over so the Rent Board could weigh N I'm doing the same thing now. I actually live near this property, I've never seen it rented I think it'll work out okay in the end. But it's really important that the Rent Board get to look at the record and make that written determination that the City Council has twice asked planning to have us do. I would hope that you will hold it over so that we can do that. Thanks. >> M. Alvarez-Cohen: Hold on a second. Any questions for this? Okay, we got it, thank you for your points. Lit's close the public -- I'm sorry, sorry, you can come back. >> I did want to mention if for some reason we found out that there was a rental history on this, and you moved forward, I will be making a motion at the Rent Board for us to appeal it. >> M. Alvarez-Cohen: Okay, that's your right. Let's bring back the applicant. You have two minutes to give us your response the public hearing. Two minutes, staff. >> Well, I certainly don't want to -- I think it is appropriate we have process. As much as I want to get started with the project, I understand their points. We did take the steps we thought were appropriate. We did asked Rent Board if it was a rent controlled unit, I called them, my real estate agent called them, it was for that reason that we got the statement from Denise to get the history on it. Before we closed escrow, I said would you notarize this, I need to know what is the history of this property. She gave us that information and we submitted it with our application. I hate to lose time and I'm anxious to get this project started. I wish that the file had been processed and the investigation had been made so that I could keep moving forward. Any questions? >> M. Alvarez-Cohen: Go ahead. >> I. Tregub: First of all, I'd like to express my sympathies, this is not your fault, you were following the process that you thought was the process. This is really an administrative thing that we have to work out. Between us and staff. And the Rent Board. My question is, in light of the discussion thus far, would you be amenable to a two-week continuance. >> Yes, I think it's reasonable. >> I. Tregub: Thank you. >> M. Alvarez-Cohen: Okay, there you have it. Let's close the public hearing. Bring it back to the Board. Can we get a quick motion on that. >> S. Donaldson: Move to continue. >> S. O'Keefe: Second. >> M. Alvarez-Cohen: A voice vote. All in favor -- any other questions? Am I rushing it? Go ahead, Sophie. >> S. Hahn: I'm sorry, I want to state on the record that we all know there's a lot of pressure on housing in the Bay Area. We've

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seen what's going on in San Francisco. And I would just like to emphasize that I think that we really need to start following this process whether it was mandated by City Council or not. I think under the circumstances that we know to exist in the Bay Area right now, we absolutely have to follow this process to ensure that we are not inadvertently taking rent control, affordable units, out of the housing stock. So I just heartily support the continuance and I really hope that an applicant will not be put in this position again, folks from the Rent Board obviously in their individual capacities don't have to sit here for three hours so that they can state the obvious. >> M. Alvarez-Cohen: Okay, thanks for that clarification. Let's take a roll call vote. >> Pinto. >> Yes. >> Allen. >> Yes. >> Board Member Pinkston. >> Aye. >> Williams. >> Yes. >> Donald son. >> Yes. >> Board Member Hahn. >> Yes. >> Board Member O'Keefe. >> Yes. >> Board Member Tregub. >> Yes. >> Chair Alvarez-Cohen. >> M. Alvarez-Cohen: Yes. It's unanimous, this will be continued. Thanks for your time. >> D. Pinkston: Can I make a request on a future agenda that staff report back on this issue of what is the process with the Rent Board and what the City Council has or hasn't said? Just so we know what they said it should be. >> M. Alvarez-Cohen: Sure. >> D. Pinkston: Thanks. >> M. Alvarez-Cohen: Let's move to the fifth of our six agenda items, approval of the previous action minutes, do I hear a motion or comments? >> G. Williams: So moved. >> I. Tregub: Wait. Second with an amendment if the maker is friendly to it. >> M. Alvarez-Cohen: Let's hear. >> I. Tregub: A factual amendment, it was a second ex parte that I disclosed at the last meeting, I held a meeting with Ken Shrader the applicant -- I'm sorry, Mr. Shrader, the applicant for -- >> A. Sage: 1974 university? >> I. Tregub: Technically 1974 University Avenue, he presented his drawings of the project, no later than April 10, 2014. >> M. Alvarez-Cohen: Are you okay with that change? >> G. Williams: Yes.

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>> M. Alvarez-Cohen: Second on the motion? >> I. Tregub: I seconded it >> M. Alvarez-Cohen: Okay. All right, all in favor? >> Aye. >> M. Alvarez-Cohen: Anyone -- >> D. Pinkston: Abstention, I wasn't here. >> M. Alvarez-Cohen: No one against. And abstentions. Second abstention, myself, I wasn't here either, approved. Last item, we need a vice chair. Let me just say that typically this is not contentious. So if people are nominated, more than one person nominated, I'd like to discuss it for a minute to see if one person might step back. So it's not contentious. We're opening up for nominations. Sophie your hand is up. >> S. Hahn: I would like to nominate Prakash Pinto. >> I. Tregub: Second. >> M. Alvarez-Cohen: Okay. Any other nominations? Bob? >> R. Allen: Nominate Steven. >> M. Alvarez-Cohen: Is there a second to that? All right, so we don't have a second. So we're going to take -- any comments? >> S. Donaldson: I'm fine to move with Prakash at this time. >> I. Tregub: I have a procedural question and I realize that I seconded Prakash's nomination. Can staff confirm whether a second is required for nominations? >> A. Sage: I'm not 100% sure but it would seem like it's a motion like any other motion. We probably want to make sure that the nominee accepts the nomination. >> P. Pinto: You know, I accept. But I want to say one thing, I think we have a great board and I'm open to anybody, really, being the vice chair, quite frankly. I really enjoy being a part of this board I think you're all wonderful. If you really -- I'm happy to do it. I think it's great. I know that it's a rotating thing, all of us will eventually get to be a chair. But I'll accept. But I just want to state that for the record. >> M. Alvarez-Cohen: All right. I'll also state for the record that both the nominee and the potential nominee are very qualified candidates. They're highly respected on the Board here. And I just would add that the vice chair is going to take over the chair position eventually, that's the assumption. When I step down I'll give you more summary of what I think the role of the chair is. But I'll say the primary role of the chair right now is to increase the community's trust in the City's governance. And it is not to achieve a just decision. I think that's the role of the entire nine commissioners plus staff. So that's important. But eventual chair has to increase the public's trust in government. The way that you do that, is through very admirable functionality and fairness and friendliness. As we saw tonight. I'm a little embarrassed about tonight. Sometimes it's not easy, there's at least six constituents here, applicant, appellant, the public, there's the staff, there is the commissioners and also there's a captioner. Sometimes they're opposing positions, it's hard too balance that functionality, fairness and friendliness. So that's a challenge. But I think that both the nominee and the potential nominee had that potential. And if there's no other comments or questions

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we'll take a vote. Roll call. >> Board Member Pinto. >> Yes. >> Board Member Allen. >> Yes. >> Board Member Pinkston. >> Yes. >> Board Member Williams. >> Yes. >> Board Member Donaldson. >> Yes. >> Board member Hahn. >> Yes. >> Board Member O'Keefe. >> Yes. >> Board Member Tregub. >> Yes. >> Chair Alvarez-Cohen. >> M. Alvarez-Cohen: Yes. Unanimous, we have a vice chair, congratulations, Prakash. [ APPLAUSE ] we are adjourned, thank you.

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1BR / 1Ba furnished in-law

available aug 18

w/d in unit street parking

no smoking

$75 / 1br - Charming Short Term Rental in Berkeley Hills (berkeley north / hills)

75 per night for a charming private bedroom plus a sunroom/study and full private bathroom. Furnished / double bed plus memory foam. Includes all linens and towels. Room has its own entrance, garden view, cozy, bright and cheery in a retreat like setting. Available for you is; a microwave, toaster oven, toaster, coffee pot, utensils, washer/dryer, mini fridge and DSL. The property is on a double lot and is surrounded by flower gardens, mature trees and bay view. Sanctuary retreat yet close to Gourmet Ghetto. Relatively close to UC, LBL, Lawrence hall of Science, Math & Science Reseach Institute and a twenty minute walk downhill to the gourmet ghetto (20 minutes). For your convenience it is best to have a car as the # 65 bus runs every 50 minutes (the bus stop is steps from the house). Also, LBL shuttle nearby.

7 night minimum stay.

You can walk down to the UC Campus (20 minutes on foot downhill and 1/2 hour uphill) or take the bus. A short walking distance to MSRI (Math Science Research Institute).

Please note this is for ONE person only, no pets, no smoking, no guests. Because of a high demand in rentals, I cannot reserve the room for you, weeks in advance unless we can make a special arrangement for a deposit prior to your arrival.

Will request at least two references and damage/cleaning/utilities fee per week stay($30 non refundable).

• do NOT contact me with unsolicited services or offers

post id: 4622041867 posted: 4 days ago updated: a day ago email to friend ♥ best of [?]

Please flag discriminatory housing ads

Avoid scams, deal locally! DO NOT wire funds (e.g. Western Union), or buy/rent sight unseen

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On December 11, 2010, I spoke directly to the applicant about the garage construction. I was so upset by her statements that I immediately wrote down the conversation. Below, are portions of my contemporaneous notes.

In person discussion with Mona

I had a discussion with Mona Kafoire, our neighbor at 85 Parnassus, today at 9:45 am across our shared fence. I welcomed Mona back from Paris. She told me that she and her husband were separated and I said I was sorry to hear that. The builders were there building at the time – water was streaming down from the area in which the sewer line had been dredged.

I said that we were wondering what she was doing with her garage. She said, “I don’t know” and laughed. Then she said that her son Alex, who is finishing college up at UBC is interested in going to graduate school at UC Berkeley in cognitive psychology. (I mentioned that my Ph.D. was in the closely related field of social psychology/organizational behavior.) Mona said that he would live there in the garage if he moved back – many of her friends were doing that – building a separate space for their college or graduate school children to live with them. She said that her 85 year old father likes to visit and that he would stay there too. The reason, she said, is that though her main house is big, “there is no privacy” in it.

Mona mentioned that she knew we would be concerned about this in response to my simple question, “Why didn’t you talk to us first about this?” She said, “I knew you wouldn’t like it” but that her kids “were already spending the night” in the garage, “they just peed outside.” She intimated that out of courtesy to us she frequently told her children to be quiet when they were out there because of our complaints about the noise they made.

I asked Mona if she was expanding the garage and first she said, “No, we are not going up.” Then I said “are you going out?” and she replied, “no.”

Mona said that she didn’t want to pay the $10,000 to get the permit to officially make the garage a habitable space. So she decided to go this route instead, installing a toilet and sink.

I relayed our dismay at the situation. I mentioned that our belief was that her garage was a non-conforming structure and she would need to go through the zoning adjustment board to get approval to make her garage habitable. I mentioned that when we moved into our home, before she bought her property, the building was a garage with no windows (which she knew – she installed the windows and treelike a few years ago without a permit).

In an attempt to recognize my concerns, she reiterated them - she said that what was upsetting me was both the closeness of the building, it’s exposure to our home and property, and the possibility of her renting it to strangers. I agreed but qualified it by saying that we didn’t want anyone to stay there. I also said that she had the right to do whatever the city code proscribes, but that we believed she was in violation of the codes – that the garage is a non-conforming building and that it is not zoned as a habitable space – no one should be sleeping in there.

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By Jennifer Chatman

10 East Parnassus Court

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December 12, 2010

Phone message left for Mona

The workers started at 8:30 am this morning, 30 minutes before the City policy allows.

I noted today that a concrete slab has been poured OUTSIDE the boundaries of the garage building. Nowhere on the permit did it state that the building was being expanded – it says the toilet and sink are being built IN the garage, and yet, the bathroom is clearly and unequivocally being built outside the existing building, clearly constituting an expansion. We have taken photos to show this to be true.

I left two phone messages for Mona on 510 704-0538. The first was at 9:50 am with a request to call me back at home. In the second, 15 minutes later, I left the following message:

1. I was disappointed that she didn’t discuss this project, which had enormous detriment to our property, before she began. I wouldn’t treat any neighbor like that and it made me sad that she didn’t have the consideration to discuss it with us.

2. I explained my concern that the work she is doing is out of conformance with City planning policy and that no survey has been done on the property lines to ensure that she has the proper offsets to add to her garage building. She never pulled permits before for all the work she has done to the garage (added windows, a porch, and a treelike – all without permits), and so it was time to get a survey to ensure that she had the right to expand the building further. This doesn’t even start to address the issues of habituation in the building, which presents an entirely different set of problems.

3. Thus, our second step is that we will go to the City of Berkeley tomorrow to ask for a work stoppage (I mentioned that she might want to have her workers stop their work today (Sunday) so that she didn’t have to pay for work that would need to be pulled out later). We will insist that a survey be done to see exactly where the property line is and to see if, in fact, that garage building has the proper offsets to justify expansion.

4. I then expressed my disappointment about the fact that she explicitly stated to me yesterday, point blank, that she was not expanding the building; that she would actually lie to me –was unbecoming of a neighbor and truly discouraging.

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12/10/10 10:30 am – phone call with Mona 1. Mona returned my call. I asked why she didn’t discuss this project with us in advance and

she said that “I wanted to but was advised by the City and my contractor not to do so.” She mentioned that her contractor was Terry Royer, “a friend of mine.” [We car pool with Terry.]

2. I asked why she said yesterday that the building was not being expanded and she said that she didn’t say that (lying about her initial lie – astounding).

3. I asked if she explicitly represented on the permit that she would be expanding the building and she didn’t answer.

4. The building looks into ALL of our bedrooms, our kitchen and our dining room, it would decrease the value of our property. This garage has far more impact on us than it does on her given the distance between it and her main home. It overlooks virtually our entire house – we can see it from every room in our house except one bathroom and my study.

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Call with Terry Royer – December 12, 2010 11:50 am Terry returned our call. We asked him about the Kafory garage project. He explained that he had done some work and detailed the various options Mona had for her garage. He relayed those to us as well. Multiple paths were possible. I relayed to Terry my most recent conversation with Mona. When I asked her why she didn’t talk to us about the project in advance, knowing that the garage is extremely obtrusive to our property and that when she erected the trellis we were unhappy, that she immediately without hesitation replied (and this is a direct quote), “My contractor and the City of Berkeley inspector advised me not to.” Terry said to us, instead, that he explicitly advised Mona to “talk to her neighbors.” He also discussed the long process that she would have to go through to make this a habitable dwelling – a different permit, a different building process, and a comment period by neighbors. Mona didn’t want to spend the money to go that route. Terry knew that Mona would be thinking about rental income given her current personal situation, and said that our concern over Mona creating a habitable dwelling and then renting it was understandable.

By Jennifer Chatman

10 East Parnassus Court

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