85 Parnassus Road - Berkeley, California...Aug 28, 2014 · 2. Dora and Tulio Halperin, 1498 Campus Dr. 3. Elizabeth Smith, 95 Parnassus Rd. 4. Gordon Gray and Taite Darlington, 96

Z O N I N G

A D J U S T M E N T S

B O A R D

S t a f f R e p o r t

2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420

E-mail: [email protected]

FOR BOARD ACTION MAY 8, 2014

85 Parnassus Road

Appeal of Administrative Use Permit #12-20000158 to convert an existing accessory structure (containing habitable space) into an accessory dwelling unit located 5 feet from the rear lot line where 20 feet is required, with required off-street parking (one space) located in the required rear yard.

I. Application Basics

A. Land Use Designations: General Plan: Low Density Residential Zoning: R-1H, Single-Family Residential Hillside

B. Zoning Permits Required:

Administrative Use Permit to create an Accessory Dwelling Unit within a rear yard, under Zoning Ordinance Section 23D.16.030

Administrative Use Permit to locate an off-street parking space in the required rear yard under Section 23D.12.080

C. CEQA Determination: Categorically exempt pursuant to Sections 15303(“New Construction or Conversion of Small Structures”) of the CEQA Guidelines.

D. Parties Involved:

Applicant/Owner Ed and Mona Nichols 85 Parnassus Rd., Berkeley, CA 94708

Appellant #1 Rena Rickles for Russell Barnett and Jennifer Chatman 10 E. Parnassus Ct., Berkeley, CA 94708

Appellant #2 Dora and Tulio Halperin 1498 Campus Dr., Berkeley, CA 94708

Appellant #3 Elizabeth Smith 95 Parnassus Rd., Berkeley, CA 94708

Appellant #4 Gordon Gray and Taite Darlington 96 Parnassus Rd., Berkeley, CA 94708

85 PARNASSUS ROAD ZONING ADJUSTMENTS BOARD Page 2 of 13 May 8, 2014

File: G:\LANDUSE\Projects by Address\Parnassus\85\AUP 12-20000158\Document Finals\2014-08-28_ZAB_SR_85 Parnassus.docx

Figure 1: Vicinity Map

Appellants: 1. Russell Barnett and Jennifer Chatman, 10 E. Parnassus Ct. 2. Dora and Tulio Halperin, 1498 Campus Dr. 3. Elizabeth Smith, 95 Parnassus Rd. 4. Gordon Gray and Taite Darlington, 96 Parnassus Rd.

Project Site (Includes both

parcels)

Location of Proposed Accessory

Dwelling Unit

1 2

3

4



Figure 2: Site Plan

Figure 3: Permitted Floor Plan (Approved via AUP #11-11-20000043)

Location of Accessory

Dwelling Unit



Figure 4: Existing (As Built) Plans

Figure 5: Proposed Floor Plan

Unpermitted Shower,

Water Heater & Sink



Figure 6: Proposed South Elevation

Figure 7: West Elevation

Figure 8: East Elevation



Figure 6: North Elevation

Table 1: Project Chronology

Date Action

c.1938 Garage constructed

2009 Building, Electrical, and Plumbing Permits to alter a non-habitable accessory structure

January 5, 2011 Building, Electrical, and Plumbing Permits received final approval

February, 22 2011 Notice of Violation Issued: Habitable accessory structure without permits

August 19, 2011 AUP #11-20000043 approved by Zoning Officer to convert garage into habitable accessory structure with toilet and lavatory and locate required parking space in rear yard

September 7, 2011 Appeal of AUP #11-20000043 submitted

April 12, 2012 ZAB denies appeal, reaffirms Zoning Officer approval of AUP #11-20000043

November 19, 2012 Notice of Violation issued for conversion of garage to residential use

1 without building

permits: new sink and cabinets; shower in storage area; new electrical wiring; new French doors and windows.

December 12, 2012 Current application AUP #12-20000158 submitted to convert habitable accessory structure to Accessory Dwelling Unit

August 2013 Mediation between applicants and appellants

October 16, 2013 AUP #12-20000158 approved by Zoning Officer

November 4, 2013 Appeal of AUP #12-20000158 submitted

May 8, 2014 ZAB overturns Zoning Officer decision to approve and denies AUP #12-20000158 with direction to return with Findings for denial

May 22, 2014 Appeal of AUP removed from ZAB agenda to address claim of lack of due process

June 26, 2014 Rehearing set for August 28, 2014 at the direction of the City Attorney in order to address claim regarding lack of due process

August 14, 2014 Public hearing notices mailed and posted for August 28, 2014 ZAB hearing

1 The 2011 AUP permitted the conversion to habitable accessory structure, however the applicant never applied for the

building permits to perform the construction necessary.



Table 2: Special Characteristics

Characteristic Applies to Project?

Explanation

Creeks No No creeks within 40 feet of subject property.

Fire Zone Yes

In Fire Zone Two, the Berkeley Building Code requires that new structures and modifications to existing structures have safety features such as non-combustible decks, Class A roofs, and protection of exterior walls with fire-resistive materials, double glazed windows, protection of eaves and overhangs, and the enclosing of under floor areas. These requirements will be verified during the building permit review process.

Historical Resources

No Property is not a historical resource.

Oak Trees No There are no Coastal Oak Trees near the project.

Seismic Hazards

No Although the site is located within potential fault rupture and landslide zones, the project is exempt from further study under the Seismic Hazards Mapping Act.

Table 3: Development Standards

Standard

BMC Sections 23D.16.070-080 & 23E.96.070

Existing Proposed Permitted/

Required

Lot Area (sq. ft.) 15,288 No Change 5,000

Gross Floor Area of Garage (sq. ft.) 400 400 600

Dwelling Units 1

1 Dwelling/ 1 ADU

1 Dwelling/ 1 ADU

Parking Spaces 1 2 2

Accessory Structure Setbacks (ft.)

Front (West) >100 No Change N/A

Rear (East) 5 No Change 20

Left Side (South) 60 No Change 4

Right Side (North) 3.35 to 3.72 4 4

Lot Coverage (%) ~19% ~19% 40

Usable Open Space (sq. ft.) >400 >800 800

II. Project Setting A. Neighborhood/Area Description:

The project is located in a hillside neighborhood of mostly single-family dwellings that range in height from one to three stories. Development in the surrounding area represents a mixture of architectural eras and styles.

B. Site Conditions: The subject property is developed with a single-family dwelling, an accessory building, and a large private garden at the rear of the residence. The house and accessory building were constructed in 1937. In 2009, a 37 square-foot addition was added to the northeastern corner of the structure.



The site includes two lots: the larger has frontage on Parnassus Road (West) and the smaller has frontage on Campus Drive (East). The smaller parcel contains a gravel driveway and landscaping that lead to the proposed ADU and adjacent graveled parking area.

C. Background Building Permit for Half Bath In 2009, Ed and Mona Nichols (the applicants) applied for a building permit (along with related plumbing and electrical permits) to construct a half bath in an existing garage. During the course of regular building inspections, the inspectors discovered that the applicants had constructed a shower that was not part of the issued building permit. The applicants were instructed to remove the shower, and according to the building inspector, complied with the request. On January 5, 2011, the building permit (and all related permits) to construct the 37 square foot addition that contained a half bath received final approval. 2011 AUP Application In February 2011, a Notice of Violation was issued to the applicants for having converted a garage into a habitable structure without permits. The unpermitted work included finishing the interior of the garage and adding a shower to the approved half bath. The Nichols were instructed to either apply for the appropriate permits, or return the structure to previously approved conditions. Shortly thereafter, (February 2011), the Nichols applied for an Administrative Use Permit to legalize the Accessory Dwelling Unit (ADU). The neighbors located at 10 E. Parnassus Road believed that the structure was closer than the four feet shown on submitted site plans and requested a survey. The survey confirmed the neighbors’ belief that the structure was within four feet of the northern property line. Because current regulations require that an ADU be at least four feet from all property lines, the applicants would have needed to apply for a variance in order to retain the shower as part of the application 2. At that point, in order to rectify the conditions on the property, the applicants decided to pursue an AUP to “allow the conversion of the garage into a habitable accessory structure with a half bath.” This type of structure is not subject to the minimum four-foot setback requirement that applies to ADUs. A condition of the permit would stipulate that no shower was permitted and the applicant was instructed to close off shower access. Plans were revised to show the shower area as “storage.” In August 2011, the Zoning Officer approved AUP #11-20000043 to convert an existing garage into a habitable accessory structure. In September 2011 the AUP was appealed. On April 12, 2012 the ZAB affirmed the Zoning Officer’s decision and dismissed the appeal (See staff report and approved AUP Attachment 4). 2012 AUP Application In November 2012, a new Notice of Violation was issued to the Nichols for construction without permits (new sink and cabinets, shower in storage area, new electrical wiring and new French doors and windows). Of the items listed in the violation, several were those

2 Berkeley has a policy that any accessory structure that has EITHER a kitchen OR a full bath is a de-facto dwelling

unit.



same items listed in the 2011 violation because the applicant did not get a new building permit after the approval of the AUP. The applicant was told to either remove the items, or apply for the appropriate Zoning and Building Permits. Much of the work cited does not require discretionary review by Zoning (work such as the French doors, windows, internal water heater and other interior remodeling). Other work, such as the kitchen sink and shower, would require Zoning discretionary permits prior to building permits. In December 2012, the applicants submitted an AUP to create an Accessory Dwelling Unit and establish an uncovered parking space in the rear yard. In August of 2013, mediation was attempted between the applicants and appellants; however, without resolution (see mediation report Attachment 6). On October 16, 2013, the Zoning Officer approved AUP #12-20000158 to create an Accessory Dwelling Unit and to establish an uncovered parking space within the rear yard. On November 4, 2013, the AUP was appealed. May 8th Appeal Hearing On May 8, 2014, the ZAB held a public hearing to consider the appeal. The Board overturned the Zoning Officer’s approval and granted the appeal, and directed staff to return with findings for denial that would be reviewed and adopted by the Board at the May 22, 2014 meeting. At the May 22, 2014 ZAB meeting, the item was removed from the public hearing in order to address questions raised regarding due process during the May 8, 2014 public hearing. An investigation into Brown Act Violations was conducted and was inconclusive. In order to cure and correct any possible Brown Act violations and the claimed lack of due process, a new public hearing was set for August 28, 2014.

III. Project Description

The project would legalize the creation of an Accessory Dwelling Unit (ADU) that was done without prior Zoning approval. As discussed above, a minimum of four feet is required between property lines and ADU’s. The applicants propose to reframe the northern wall of the structure so that the distance between the building and the eastern property line will increase to the minimum 4-foot requirement. The project would also create a second uncovered parking space in the rear yard to meet the parking requirement for the ADU.

IV. Issues and Analysis

A. Accessory Dwelling Unit: Accessory Dwelling Units that conform to all regulations outlined in Section 23D.16.040 are allowed by right. The Zoning Officer may approve an AUP if an accessory dwelling unit does not meet one or more of the standards.

The existing structure is located at the rear of the primary lot, approximately five feet from the rear property line shared with 1498 Campus Drive, and approximately 3.5 feet from the property line shared with 10 E. Parnassus (the distance varies from 3.35 to 3.72 feet from the property line).



The AUP requests a reduction in the rear yard setback (five feet where 20 is required) for the proposed accessory dwelling unit. The rear yard is the distance from the structure to the rear property line that is shared with 1498 Campus Drive. As mentioned above, architectural drawings submitted as part of the application depict that the northern wall of the structure would be reframed so that the distance between the building and the eastern property line would increase to the minimum 4-foot requirement. The reframing of the wall is allowed by right, and does not need the Zoning Officer or Board’s approval.

In this case, the Zoning Officer found that the accessory dwelling unit was permissible because it complied with all the requirements of Section 23D.16.040 and because there was sufficient distance between the new use and adjacent residences, the reduction in the rear yard would not be detrimental.

B. Parking in Rear Yard: Uncovered parking within a rear yard requires an AUP. The parking for the accessory dwelling unit is proposed to be located on a pad just outside the structure (see site plan). In this case, the Zoning Officer found that the parking would not pose detriment because of its separation from adjoining structures, the presence of screening landscaping and fences, and proximity to the driveway and accessory building.

C. Appeal Points: The main point of the appeal letter, with staff’s responses, are as follows (see appeal letter, Attachment 3):

1. Issue: “Fraudulent and incomplete application” due to “existing conditions” that are incorrect. For example, “Sheet A2 only shows half-bath when currently a full bath exists, Sheet A4 that shows a garage door that has already been changed to French doors, and Sheet A5, Roof Pitch of 5:12 when the roof is really 4:12.”

Location of Rear Property

Line



Staff Analysis: The plans originally submitted to the City showed the actual existing conditions, but were revised at the request of the project planner to show only the lawfully permitted conditions. In cases where work has been done without permits, it is common practice to show the lawfully permitted conditions as “existing.” To clarify, this report has provided the approved plans (from AUP #11-20000043), “as built” plans (i.e., what currently exists on the site), and the proposed plans for this project (see Figures 3-5). The information included in the application, the proposed plans, as well as site visits provided the basis for the Zoning Officer’s determination that the project did not create significant detriment, and the fact that a portion of the proposed work has already been done had no bearing on the Zoning Officer’s decision. The appellants do not provide evidence that the project, as proposed, would create detriment.

2. Issue: Inadequate, unenforceable, and vague conditions that lack specificity

The appellants argue that there are no conditions that regulate the required four foot setback, the roof height and pitch, the shower and the plantings along the northern fence.

Staff Analysis: The AUP includes conditions of approval that regulate the structure’s height and location from property lines, including Condition #27 that states:

“All landscape, site and architectural improvements shall be completed per the attached approved drawings dated July 23, 2013 (which includes the survey conducted by Moran Engineering, Inc. and dated March 2012).”

The approved plans from July 23, 2013 illustrate that the structure shall be 4 feet from the northern property line and that the average height of the building will be 10 feet 2 inches. The construction aspects of the project were not subject to an AUP.

Plantings along the northern property line were addressed via Condition #15:

“The applicant shall remove all of the plantings noted in the arborist’s report, conducted by Steve Batchelder and dated December 20, 2012. These planting are located directly adjacent to the fence that separates the subject property from the property to the north, the address of which is 10 E Parnassus Court. Any future plantings along this property line shall be limited to canopy trees planted no closer than three (3’) feet to the property line and with a minimum distance from each other of at least three (3’).”

As part of the building permit process, the applicant will need to submit drawings to the City that comply with the approved AUP, the Building Code, as well as all other City Ordinances. Once a building permit is issued and construction begins, building inspectors will conduct on-site inspections to ensure that construction is consistent with approved plans, including the building location 4 feet from the northern property line.



3. Issue: The findings of non-detriment are not supported by the record. Appellants provide no further evidence to support of this point.

Staff Analysis: In order to approve an AUP, the Zoning Officer must make the non-detriment finding in Section 23B.28.050:

“…only upon finding that the establishment, maintenance or operation of the use, or the construction of a building, structure or addition thereto, under the circumstances of the particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort or 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, the surrounding area or neighborhood or to the general welfare of the City.”

In this case, the Zoning Officer found that the proposed project would not create significant detriment because: 1) the ADU would be located in a single-story structure measuring 10 feet, 2 inches in average height and not create significant shading on adjacent residences; 2) the ADU would be sufficiently distanced from adjacent buildings; 3) the ADU would not create significant view impacts; and 4) the windows, doors and living areas of the ADU would be oriented towards the interior of the lot, away from adjacent parcels so as to create a limited impact on the privacy of the neighbors located at 10 East Parnassus Court and 1498 Campus Drive (see specific findings listed under Section D below).

The appeal does not provide any evidence contradicting these points, or of how the approval of the ADU would be detrimental to the health, safety, peace, comfort, morals and general welfare of the city and the persons residing in the neighborhood.

D. Administrative Use Permit Findings: On October 15, 2013, the Zoning Officer issued a Notice of Administrative Decision approving the project based on the findings listed below.

1. General Non-Detriment (Pursuant to Berkeley Municipal Code Section 23B.32.040) a. As required under Section 23D.16.040 (Development Standards for Accessory

Dwelling Units), the proposed detached Accessory Dwelling Unit is permissible because:

The gross floor area of the main dwelling unit is 2,555 square feet, and the gross floor area of the proposed Accessory Dwelling Unit is 405 square feet, less than 25% of the gross floor area of the main dwelling;

The proposed Accessory Dwelling Unit will be created in a new detached accessory building located behind the existing building on a 15,288 square-foot lot;

The proposed Accessory Dwelling Unit shall have an average height of 10’-2”; and

The permit is conditioned (see Condition #13 below) to restrict the accessory dwelling unit from being sold independently of the main house, mandating that the owner shall not subdivide the land or air rights to enable sale or transfer of the accessory dwelling unit, that the owner shall



reside in either the main dwelling or the accessory dwelling unit, and that one (1) on-site parking space shall be provided for the resident(s) of the accessory dwelling unit for the life of the unit.

b. The proposed 405 square-foot Accessory Dwelling Unit within the rear yard, set back 5’ where 20’ is required, does not create significant impacts to sunlight, air, or views and is found to be non-detrimental and permissible for the following reasons:

The proposed Accessory Dwelling Unit will have an average height of 10’-2”, less than the maximum allowable average height of 12’ for accessory dwelling units, and is not expected to impact the direct sunlight experienced by adjacent properties; and

The proposed Accessory Dwelling Unit has enough building separation between the neighboring properties to mitigate detriment; and

The proposed Accessory Dwelling Unit is not expected to significantly block the adjacent neighbor’s views of any significant features.

The proposed Accessory Dwelling Unit’s windows, doors and living areas are oriented towards the center of the parcel, away from adjoining parcels and will thus have a very limited impact on privacy of the abutting properties located at 10 East Parnassus Court and 1500 Campus Drive.

c. The additional off-street parking space required pursuant to 23D.16.080.A is to be provided in the rear yard setback and is found to be non-detrimental and permissible because of its separation from adjoining structures, the presence of screening landscaping and fences, and proximity to the driveway and accessory building.

Because the project could meet all of the above findings, it is staff’s opinion that the proposed accessory dwelling unit would not be detrimental to the health, safety, peace, comfort, morals and general welfare of the city and the persons residing in the neighborhood.

V. Recommendation

Based on the findings made by the Zoning Officer, and the above responses to the appeal points, staff recommends that the Zoning Adjustments Board AFFIRM the Zoning Officer’s decision to approve Administrative Use Permit #12-20000158, subject to the attached findings and conditions in Attachment 1, and DISMISS the appeal OR in the alternative, DENY Administrative Use Permit #12-20000158 and adopt the findings of detriment in Attachment 9.

Attachments:

1. Findings and Conditions approved by Zoning Officer 2. AUP#12-20000158 Notice of Decision and Plans, dated October 15, 2013 3. Appeal Letter, received November 4, 2013 4. Staff Report (with attachments) for ZAB Hearing, dated April 12, 2012 5. Notice of Public Hearing, dated April 24, 2014 6. Mediation Report prepared by Victor Herbert, dated April 29, 2014 7. Correspondence received from Appellants prior to May 8, 2014 meeting 8. Captioner’s record for ZAB hearing, May 8, 2014 9. Findings for Denial 10. Additional correspondence received from Appellants

Staff Planner: Claudine Asbagh, [email protected], (510) 981-7424

mailto:[email protected]

Documents

85 Parnassus Road - Berkeley, California...Aug 28, 2014 · 2. Dora and Tulio Halperin, 1498 Campus Dr. 3. Elizabeth Smith, 95 Parnassus Rd. 4. Gordon Gray and Taite Darlington, 96