Readers may wonder why BNC includes so much detail in our postings. It’s because we feel it is vital that neighborhoods fully understand the why and how of what happens. That understanding will help all of us when we have to present a neighborhood issue. So, read on and please don’t be shy about letting us know how you think we are doing in providing you with information.
It’s Mini-Dorm Time Again!
BNC Reminder: Mini-Dorms can and do occur in all residential zones, R1 through R3.
Here are two Zoning Adjustment Board (ZAB) cases that raise even more questions about the troubling issue of Mini-Dorms!!!
2201-05 Blake Street and 2204 Dwight Way
After months of waiting, the proposed project at 2201-05 Blake Street — a City of Berkeley designated landmark — came before the ZAB for a Public Hearing on July 10, 2014. The Blake Street project is physically connected to another project at 2204 Dwight Way which is termed by the Planning Staff as a “companion project”. Both projects are being developed at the same time by the same person, Nathan George. They appeared on the ZAB agenda as separate proposals that required separate hearings.
For the Blake Street Project: Zoning permits are required to construct a new 2-story 3,000 square foot duplex on the northeast corner of the Bartlett Houses lot. Both of the units in the new duplex will have 3 bedrooms and 2 baths. The duplex will sit on top of a subterranean garage that will provide parking for 6 cars from the Blake Street and Dwight Way projects. A permit is also required to create a 432 square foot single story dwelling unit within a relocated accessory building on the northwest side of the Blake Street lot. The accessory building was once a stable. There will be 1 surface parking space adjacent to the accessory building in a driveway off of Fulton. This lot is zoned R2-A.
For the 2204 Dwight Way Project: Permits are required to construct 2 new dwelling units at the rear of 2204 Dwight Way. A driveway on Dwight Way through this lot provides access to the below grade parking garage under the new Blake Street duplex. This lot is zoned R-3.
Using the City’s definition of bedroom, there are, according to staff, 13 existing bedrooms on the Blake Street property, and 9 more are proposed to be added for a total of 22. There are 10 existing on the Dwight Way property, and 3 more are proposed to be added for a total of 13. The total for both properties would then be 35. A permit is also required because of the recently adopted 6 or more bedroom regulations.
Back in September, the Landmarks Preservation Commission gave their approval to a “structural alternation permit” to construct the new duplex behind the Bartlett Houses. That decision was appealed by neighbors on October 29, 2013. The appeal stopped further consideration of the project. On December 17, 2013, the City Council denied the appeal without hearing on a 6 “Yes” vote (Maio, Moore, Capitelli, Wengraf, Wozniak and Bates), and the process started up again.
The Staff report for the July 10, 2014 Public Hearing on the Blake Street and Dwight Way proposals indicated that Mr. George has 3 prior property violations:
- 2436 Fulton — Construction of a deck addition without permit
- 2504 Dana — Occupancy without final inspection and a Certificate of Occupancy.
- 2204 Dwight Way — Final inspection not obtained and multiple violations cited by Cal OSHA regarding unsafe excavations.
Planning Staff reported that as of July 10th, Mr. George has worked out a timetable with the City for correction of these violations and is now in “good standing.”
A ZAB Commissioner asked Mr. George about the number of other properties he owned. His reply was that he owned one other on Fulton and managed 6 others, for a total of approximately 32 rental units, about half of which were rented to students.
Staff recommended approval of the proposals for 2201-05 Blake and 2204 Dwight Way.
Nathan George, the developer, Mark Rhoades, Berkeley’s former Zoning Officer, and the architect from Tolbert Design Architecture presented the proposal which seemed to be based on the following points. Mr. George stated:
- He is very proud of the work he has done restoring historic buildings, that he has received compliments from Mayor Bates, Council Members and others for that work, and cited specific examples in Berkeley.
- This is not a Mini-Dorm proposal. He wants to build housing for families in the South Campus area. He will convert these units into condominiums with an HOA structure to manage things. He sees the Blake property as family housing and if there are condos on the Dwight side, he thinks parents will buy these for their children attending Cal. Ultimately he wants 2201 Blake to be on a “stand-alone” parcel, separate from the others.
- He has never had a complaint about his properties.
- When he rents a unit, he does so on a “Master Lease” — not to individuals.
- Since he wanted to have occupancy by next summer, Mr. Rhoades at first stated that they would not accept recording a condominium map prior to occupancy of the units. The stated reason for this was that the process for approving a condominium map by the Planning Commission was lengthy and too “ambiguous.” Much later, in the evening Rhoades and George seemed to have dropped that objection, but details weren’t very clear.
Seven people spoke in support of the project (a neighbor, George’s contractor, 2 tenants, and 3 friends) mostly testifying to Mr. George’s integrity and good character and about his previous good work in cleaning up the Blake Street properties to their current nice condition.
Thirteen people spoke in opposition raising such issues as:
- Density: The number of bedrooms would be 35-38 an increase of 15 on a parcel that already exceeds density standards set forth in the General Plan.
- R1 density is 22 people/acre
- R2 density is 22-44 people/acre
- R2A and R3 density is 44 to 88 people/acre
- R4 and R5 density is up to 220 people/acre
- This proposal equals R5 density using California Fair Housing Standards of 2 people plus 1 per bedroom, and State definition of a bedroom.
- This is a Mini-Dorm: Examples of Mr. George’s website indicating all the units listed there are marketed to high density student use. The problems experienced with Mini-Dorms were described.
- Legality of structures that cross property lines: Code sections cited.
- Loss of sunlight to adjoining property.
ZAB Members struggled with the issue of how to handle the permit concerning 6 or more bedrooms and the recently approved ordinance establishing operating regulations for Mini-Dorms. Planning staff emphasized 2 issues:
- The permit regarding 6 bedrooms or more had no specific findings that ZAB had to make. Decisions regarding it rely entirely on the non-detriment finding, and
- The Mini-Dorms operating regulations were “self-regulatory,” i.e., operators have to voluntarily come forward to state they were operating a Mini-Dorm. The staff did not address, nor did the ZAB question whether ZAB could declare a proposal to be a Mini-Dorm and therefore, put the regulations into effect as a condition of the use.
The hour was late and instead of voting, some Commissioners wanted to continue the matter so that conditions could be worked out that would allow the project, but address some of the questionable areas. A motion was made to that effect by ZAB Commissioner Allen, seconded by ZAB Commissioner Donaldson. That motion was never voted on as a substitute motion to deny the project prevailed.
ZAB Commissioner Hahn pointed out that there was a specific proposal before them, the one as submitted by Mr. George, and that this proposal should be voted upon. She moved to deny the project and that motion was approved on the following vote:
Voting Yes: | Alvarez-Cohen, Hahn, O’Keefe, Pinto and Tregub |
Voting No: | Williams |
Abstaining: | Allen, Donaldson and Pinkston |
As the 2 projects, 2201-05 Blake and 2204 Dwight Way, were treated as separate projects, the vote regarding 2204 Dwight Way was a separate action. Most people speaking at the public hearing for 2201-05 Blake let their remarks stand for 2204 Dwight Way with two exceptions. A backyard is required, and legally a backyard is supposed to be unobstructed, i.e., a person must be able to walk from one side to the other. Specific examples were given of the various ways this project made that impossible. The other exception was the parking issue. Parking for this project relied on the underground parking located on the 2201 Blake parcel and that had been previously denied, leaving this project without parking. The motion to deny 2204 Dwight Way was made by ZAB Commissioner Tregub and was approved on the following vote:
Voting Yes: | Alvarez-Cohen, Hahn, O’Keefe, Pinto and Tregub |
Voting No: | None |
Abstaining: | Donaldson and Williams |
Absent: | Allen |
Note: Actions by the ZAB may be appealed to the City Council, within 30-days of the posting of the final Notice of Decision (which is not the date of the ZABs action). It is BNC’s understanding that Mr. George intends to file an appeal.
It is quite apparent that more work will have to be done on the regulation of Mini-Dorms. The need for more work was demonstrated in the discussion of the findings regarding 2201-05 Blake and 2201 Dwight Way two weeks later.
On July 24, 2014, Staff placed on the Consent Calendar the written findings in support of the denial of these 2 projects. They were removed from the Consent Calendar and held over to the end of the agenda where, at midnight, what can only be termed a “lively” discussion took place about approving the findings. Statements were made that little guidance about Mini-Dorms had been provided by the Council, and that to say there would be 2.2 persons per bedroom was “unfair” when the definition was not clear. Many commissioners agreed they needed more discussion or a study session about the whole Mini-Dorm issue. In the end, after some modification to the finding regarding 2201-05 Blake, both findings were approved on a split vote:
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- 2201-05 Blake Street: This project is detrimental for the following reasons:
- The addition of dwelling units plus other rooms that could be used as bedrooms and the information on the applicant’s website, will result in an intensity of use that is not envisioned by the General Plan and R2-A Zoning Standards.
- General Plan land use envisions an average building intensity of 20-40 dwelling units per acre and an average population density range of 44-88 per acre at 2.2 persons per unit citywide. Using the lot size of this project, the intensity would increase to 44. In this fully developed neighborhood with multi-family units, that would cause a detriment to the City and adjacent residences.
- The absence of a binding agreement regarding proper maintenance of the subterranean parking garage.
Voting Yes: Hahn, O’Keefe, Pinkston, Pinto, Tregub and Williams Voting No: Allen and Donaldson Abstaining: Mikiten - 2204 Dwight Way: The project is detrimental because of the lack of parking.On the motion to approve the findings.
Voting Yes: Hahn, O’Keefe, Pinkston, Pinto, Tregub and Williams Voting No: Allen and Donaldson Abstaining: Mikiten
And More Mini-Dorms, Maybe
2401 Warring
This project was continued from June 26, 2014 to a July 24, 2014 Zoning Adjustments Board (ZAB) public hearing. The project concerns a brown shingle structure dating from 1906 that is located on the southeast corner of Channing and Warring, one block south of UC’s Memorial Stadium. It is surrounded on the south and east sides by the Sigma Kappa Sorority building at 2409 Warring. The sorority building is higher than the proposed project. The project is subject to R3 zoning regulations.
The 1906 single family home originally had 11 rooms, 1 kitchen and 3 bathrooms. The staff report states that for at least 30 years it has been used as an “unpermitted rooming house.” Over the years, the existing building has been poorly maintained and City records show multiple code violations dating from 1984.
The applicant is Victor Rasilla, in Moraga, and the owner is NCR Properties, LLC at 2201 Blake Street. Nathan George spoke on behalf of the application.
The proposal is to convert this single family home/illegal boarding house into a triplex, including a 582 square foot addition in the basement and a 95 square foot addition in the attic, replace the brick foundation, and provide parking for 3 cars with an entry from Channing Way. The existing structure has 11 bedrooms and the proposed design indicates 11 bedrooms spread out over the 3 units. Mr. George stated the total amount of space devoted to bedrooms will be decreased in his proposal and that it is his plan to market high quality housing to MBA and law students. In response to a ZAB commissioner question regarding rents, Mr. George said they will be around $1100 per bedroom. He added that when more money is charged for additional people in the unit, it is an effort to discourage overcrowding.
The subject opened with a discussion led by ZAB Commissioner Allen regarding whether this matter should be continued to a future date. After a fair amount of back and forth comments, Commissioner Allen stated that his concern was whether a window, which he described as being in a light-well in the proposed basement area, met Council’s policy regarding adequate light and air. Since this matter had been previously continued and Mr. George had traveled from his home in Washington, D.C. to be present, the public hearing proceeded. However, the issue of the basement window continued to be a main topic of discussion throughout the proceedings with various solutions proposed, including raising the building, eliminating a basement bedroom altogether and reconfiguring the floor plan, and expanding the size, height and width, of the basement windows.
The other main issue was whether the units in the proposed project would be subject to rent control. The units, even when operating as an illegal rooming house, have been under rent control since 1984, and Rent Stabilization Board staff and advocates are pressing that the units retain that standing. This cannot be done if the finding is made that the conversion of the property is from a single family home to a triplex. It can be done, if the finding is made that the conversion is from a rooming house to a triplex. However, the City Attorney has advised that making a finding that the conversion is from a rooming house to a triplex would set a “dangerous precedent” and advises against taking such an action. In light of this, Planning Staff advises that since the conversion is from a single family home, the only way the units could come under rent control would be by voluntary action of the owner. The statement was made that the owner and staff have agreed that the proposed basement unit would not be under rent control, but that the two upper units would be under rent control. Per Planning Staff, since this is voluntary, ZAB can put rent control of the 2 upper units into a finding attached to their approval of a Use Permit.
There were 7 speakers, 5 of whom spoke in favor, with most comments being that the property has been an eyesore for many years. Sigma Kappa Sorority wanted no more delays in getting a better appearing neighbor with a quieter environment housing “more serious” students. Rent Board Stabilization Staff, Jay Kelekian, and a speaker from the Berkeley Tenants Union urged that the units remain under rent control and that ZAB not reduce the number of rental units. No one spoke in opposition.
After lengthy discussion around the issues of rent control and basement design, ZAB Commissioner Tregub, seconded by Donaldson moved to approve the project, keeping the 2 upper units under rent control and with a minimum reduction in habitable floor area in the basement unit that is necessary to create spaces with natural light and air that would be acceptable to the Design Review Committee. The motion was approved by the ZAB unanimously:
Voting Yes: Allen, Donaldson, Hahn, Mikiten (substituting for Alvarez-Cohen), O’Keefe, Pinkston, Pinto, Tregub and Williams The Design Review Committee will then have the final determination of the basement unit floor plan.
The question of whether this will become a Mini-Dorm was not a matter of discussion regarding this project. It may not become one. Maybe it will become one. Will this be a problem if that happens? Maybe not, due to its proximity to other student housing facilities.
In these cases, it is apparent that the Mini-Dorm issue is still with us. As one ZAB Commissioner summed it up, the City cannot limit the number of people, but the City can limit the conversion of spaces into bedrooms. The problem is, no one is actually sure of how that can be accomplished. Planning Staff was asked to look into it and prepare something that ZAB will be able to use in the future when considering permits involving 6 or more bedrooms.
The news that the recently Council approved Mini-Dorm operating regulations is “self-governing” says to us that R1-R3 residential neighbors with an existing troublesome Mini-Dorm in their midst will have to document the problems and bring that information to the ZAB in order to have the regulations apply. BNC will check this with Planning Staff and also ask the Southside Coalition for their comments.
- 2201-05 Blake Street: This project is detrimental for the following reasons: