In our last BNC eNEWS before the Holidays, we captioned the news in this section as The March of the Mini-Dorms goes on and on….. Well, guess what? Here it is a month into the New Year, and The March of the Mini-Dorms Goes On and On and On and On….
BNC has written about Mini-Dorms for about a year and we suggest that new readers access all past issues which are posted in the Archives Section of our web site. Appeals to Zoning Adjustments Board (ZAB) decisions have now been filed and a court decision has come down regarding:
- 2201-05 Blake and 2204 Dwight Way — ZAB’s decision was to deny
- 2401 Warring — ZAB’s decision was to grant
- 2601 Hillegass — ZAB’s decision was to deny
- 2133 Parker — ZAB’s decision was to deny, the owner sued and the City lost
Before we start on what happened, we felt it was a good time to remind readers of the Definition of a Mini-Dorm, Zoning Ordinance Section 13.42.020 A:
“Mini-Dorm” means any building in R1, R1A, R2, R2A or R3 Zoning District that contains a dwelling unit that is occupied by six or more unrelated persons over the age of eighteen years. Permitted and legal non-conforming Sororities, Fraternities and Student Co-ops shall not be considered Mini-Dorms, as long as they have a resident manager.
Another Chapter in the March of the Mini-Dorms: 2201-05 Blake Street (the Bartlett Houses) and the separate but connected proposal for 2204 Dwight Way
You will remember that Nathan George wants to construct a new, 3-story, 3,224 sq ft duplex at the rear of 2204 Dwight Way, and a new, 2-story, 3,000 sq ft duplex and a 432 sq ft single story dwelling within a relocated accessory structure at the rear of the City of Berkeley Landmark known as “The Bartlett Houses,” increasing the number of bedrooms on the two parcels from the current 23 to 35 and building a subterranean parking structure for 6 cars.
The Council’s public hearing on the appeal for these two proposals was scheduled for December 9, 2014 but was cancelled. It was finally heard on January 13, 2015. Previously the Planning Department had treated the proposal for 2201-5 Blake and the one for 2204 Dwight Way as “companion” proposals, and held separate public hearings. However, at the Council, the Mayor combined the two appeals and held one public hearing.
ZAB had denied the 2201-05 Blake Street project because it significantly exceeded the General Plan’s expectations of population density in its R2A Zoning District and the lack of a binding agreement for the subterranean garage’s maintenance over the life of the project. The 2204 Dwight Way denial by ZAB was based on insufficient parking. Staff that had originally supported the project at both locations, but now was recommending that the Council uphold ZAB’s decision to deny the permits and dismiss the appeals.
The appellant for 2201-05 Blake Street is Mr. Marc Madrigal, who describes himself as a tenant in 2201 Blake Street and a “friend” of the owner, Nathan George. Mr. Madrigal stated in his written appeal and in his testimony at the Council’s January 23th hearing that the reasons he appealed the ZAB’s decision were based on the following points:
- Mr. George is a nice person who does a good job renovating properties.
- People, passing by on the street, constantly comment on how nice the Blake Houses look.
- Mr. Madrigal wants to continue living there and buy the apartment he and his family are currently living in. (BNC note: The current units and those under consideration are rental units. There is no current proposal to convert any of the units to condominiums. It also came out in the testimony that Mr. Madrigal sublets space in his unit to 5 students.)
Mr. Nathan’s contractor also testified along these lines, as did one neighbor and Polly Armstrong, CEO of the Berkeley Chamber of Commerce, and Mark Rhoades, former Berkeley Planning official who frequently appears on behalf Mr. George and other developers. It was said that while a representative couldn’t be at the meeting, the Telegraph Avenue Association also supported the project.
Neighbors, based on their research on rentals offered by Mr. George (including these properties) and their own experience that these properties are currently operating as Mini-Dorms, neighborhood groups from the LeConte, Willard, Claremont Elmwood, Dwight/Hillside and Piedmont Avenue areas united as the Southside Neighborhood Consortium, and BNC testified in opposition to the appeal and requested that the Council affirm the ZAB’s decision to deny the project at both properties.
In particular, the LeConte Neighborhood Association Board advised the Council that:
The provisions in the zoning code that support or require a finding of detriment for these projects are so numerous that failure to uphold the ZAB findings and denial of both projects would amount to an abuse of discretion.
The LeConte Neighborhood Association listed 7 points in support of their position:
- Zoning Code Section 23D.12.030 requires that off-street parking for buildings on a lot MUST be located on that same parcel. The proposed underground parking structure on the Blake Street lot serves tenants of the Dwight Way building and the two lots are not under the same ownership. ZAB determined that the project on Dwight Way does not have sufficient parking to support the dwelling units and there is insufficient street parking in the area.
- Zoning Code Section 23D.12.080 requires that driveways and other vehicle-related paving must be separated from any adjacent rear or interior side lot line by a landscaped strip at least two feet wide. No such landscaped strips are proposed for the Dwight Way parcel.
- The proposed driveway on the Dwight Way lot which is over 100 feet long and is intended to serve 6 cars, violates the minimum driveway width required by Section 23D.12.040.
- The proposed underground parking garage at the rear of the Blake Street lot and the connected retaining wall, steps, trash enclosure, and driveway on and over the rear of the Dwight Way lot violate Zoning Code Section 23A.12.040 that structures not be located upon or over any property line.
- Various proposed retaining walls and other structures at the rear of the Dwight Way lot and connected to the underground garage at the rear of the Blake Street lot are within the required rear yard and/or side yard setbacks as defined in Section 23F.04 and violate zoning code restrictions against obstructions in a required yard.
- Both the Dwight Way and Blake Street project lack sufficient parking.
- The density that would result if these projects were permitted would exceed the standards that are set by the General Plan for the R-2A zoning district, and would cause impacts that would severely diminish the quality of life in the surrounding neighborhood.
The Council discussion that followed started off with Council Member Anderson moving that the Council affirm the ZAB decision and dismiss the appeal. This was seconded by Council Member Arreguin.
Council Member Wengraf then commented that Mr. George’s proposal “had a lot of potential,” without mentioning details. She later added that she believed the Mini-Dorm Ordinance, approved unanimously by the Council, had “serious unintended consequences” and that the Council would “have to revisit it.” The problem “was behavior, not density.”
Council Member Capitelli took up this theme and suggested that the applicant remove doors and demolish a couple of walls so those rooms couldn’t be counted as bedrooms. Whether removing walls would be physically possible or how removed doors could be enforced wasn’t discussed.
Council Member Droste pointed out there had been few complaints about this property, that the City’s population had increased by about 4,000 during the period 2010 and 2014, and building permits had been issued for only 348 new units. (BNC Note: We’re not sure whether she means that this is the reason students are living 2 or more to a bedroom, that they are living in spaces not originally designed to be bedrooms, and/or that the City needs to step up its approval of many more student rentals.)
Most of the discussion, however, centered around the driveway and whether it was legal or not. Had the City’s Traffic Engineer approved the plan and when did that review take place? The Planning Director stated that the Traffic Engineer had seen the plans in a “once over” look and found no “fatal flaw” in them. However, he added that after a zoning permit has been approved, the Traffic Engineer would take a closer look at the plans and could, in fact, override the approval and deny the permit. (BNC has added the emphasis.) The disclosure of this possibility made the Mayor and other Council Members visibly uneasy, so in the end, Council Member Anderson withdrew his motion and the Council decided to schedule this issue for further discussion on February 17th.
Flash: BNC has just found out this appeal has been moved up to February 10th at 6:30 PM, in the Council Chambers Old City Hall.
So, more to come on this one. BNC advises that all neighborhoods from R1 to R3 pay very close attention to this project, unless you think Mini-Dorms are a good idea on your street.
And, the March of the Mini-Dorms Continues: 2401 Warring
Using their own money, this appeal was filed by Lisa Stephens and Katherine Harr, elected Rent Stabilization Board Members, who stated they had no intent to stop the project but to ensure that it is done in accordance with Berkeley’s Rent Stabilization law.
Readers will recall that this property located near the Berkeley campus has a somewhat checkered past. In 1986, a previous owner applied for a permit to convert this single family house into a rooming house. That application was withdrawn. After that, it was registered with the Rent Board continuously from 1987 to 2013 as an 11-unit rooming house with presumably City knowledge that it was an illegal use. Nathan George is now seeking permits to convert it into a triplex. The proposal is supported by a neighboring sorority because the property has been in a run-down condition for years.
Neither the Southside Neighborhood Consortium nor BNC opposed the proposal.
On July 24, 2014, ZAB said “yes” with some rather confusing findings that the legal use of the building is a single family home and therefore, it is categorically exempt from rental registration requirements. Another ZAB finding stated that the property owner voluntarily agreed to register the upper two units and that after establishment of an initial rent for each new tenancy, any subsequent rental increases will be consistent with the Rent Stabilization Ordinance. This means that after a unit is voluntarily vacated (and in housing primarily rented to students, this happens around once a year, the rents can be raised to whatever the landlord decides.)
Mr. George testified that he had been “blackmailed” into agreeing to these conditions, and that now “that deal was off the table.” After much back and forth, conferring with attorneys, etc. Mr. George finally stated that he would voluntarily agree to the language that had been submitted by the appellants. That language (paraphrased) states that:
- Future rent increases in two of the units shall be limited for the life of the building.
- The limit is to be no more than 65% of the Consumer Price Index calculated for this area.
- This provision must be included in every new lease agreements for the two units.
- Information about the tenancy and initial rents of the two units is to be provided to the City of Berkeley within 15 days of the start of each new tenancy.
- There is no limitation on the owner’s right to set initial rents at market rates at the inception of each new tenancy.
With Mr. George’s statement that he would do this voluntarily, the Council approved ZAB’s decision to grant the permits and add these new conditions.
BNC doesn’t think this is the end of what is happening for the following reasons:
- The voluntary provisions about limiting rent increases and the other ZAB condition regarding exempting units from rental registration are inconsistent and raises questions about monitoring and enforcement. Will the inconsistencies be legally challenged or simply ignored? How will these conditions be enforced and by whom? Does the City really intend to do this with its limited staffing?
- How does this affect other older rent controlled units that may be in a similar situation or older buildings (e.g. 18 units on Durant) which are currently standing empty while owners wait for City decisions regarding what to do about demolished rent controlled units?
Whether one thinks rent controls are good, bad or make no difference, it is still the law in Berkeley. Newly constructed units are exempt from rent control and no one can ignore the reality of the huge monthly rental fees being charged for these new units. This is an enormous incentive for speculators to buy older buildings with an eye to demolishing them in order to replace the former rent-controlled units with many smaller units and/or provide many bedrooms within a dwelling unit to accommodate multitudes of people.
Proposals are currently being discussed by the City to make it easier to demolish these older multi-family structures and maybe, just maybe, the City Council is leaning toward making it easier to establish Mini-Dorms in residential R1-R3 neighborhoods. Hence, our prediction that the issue of Mini-Dorms, whether in single family homes or apartment units, won’t be going away soon.
And So, the March Continues: 2601 Hillegass
BNC readers will recall that we told you about this proposal back in BNC eNews Issue 7. This is a well-maintained, 4-story, 23-unit apartment building (with a partially subterranean parking garage) located on the west side of Hillegass between Parker and Derby, just about one block south of People’s Park. The building is a “non-conforming” building, i.e., it was built when the zoning allowed much larger buildings than are allowed in its current R2 zoning. When the area was down zoned sometime in the past, the building was “grandfathered” in.
Prior to the time that the City approved the Mini-Dorm Ordinance, 7 of the one-bedroom units in the building had already been converted from one-bedroom to two-bedrooms simply by obtaining an over-the-counter building permit. After the Mini-Dorm Ordinance was approved, such conversions required a much higher level of review, i.e. a discretionary review by the ZAB. So this proposal to convert 8 remaining one-bedroom units into 8 two-bedroom units came before the ZAB on March 13, 2014. City staff opposed the conversion on the basis that it was a 19% increase in the number of bedrooms on a property already developed which was substantially over the R2 zoning limits for building size, coverage, open space and residential density. It also further exacerbated the R2 requirements for open space currently provided to its existing tenants. ZAB agreed and denied the permits on an 8 (Alvarez-Cohen, Donaldson, Hahn, Matthews, O’Keefe, Pinto, Tregub and Williams) to 1 (Allen) vote.
The Southside Neighborhood Consortium, BNC and neighbors opposed the project.
An appeal of this decision was filed on April 4, 2014 by Sam Sorokin, Premium Properties, who manages the property of behalf of the owners. With no reason given as to why, the appeal wasn’t heard by the Council until almost 10 months later on January 27, 2015, when a public hearing was held.
Mr. Sorokin, the appellant, testified that the reasons for the conversion were:
- To upgrade the units, make them more energy efficient.
- To make them more like the units that are being built today with living space reduced to 122 square feet.
- The possible result would be only 8 more people living in the building.
- Parking would be no problem since parking in this building is rented separately from the dwelling unit rental at the amount of $75 per space and only 7 of the existing spaces are currently being used.
He added that the units are marketed to students, and that one-bedroom units usually have 3 tenants at a rent of $500 per month, per person. He wants the converted units to be vacant, so that construction could be done over the summer months and the units rented in August when classes resume.
Testimony from the public included a representatives from the Southside Neighborhood Consortium and the Claremont Elmwood Neighborhood Association, and a neighbor in opposition. One person, stating he was speaking for affordable housing, spoke in favor of the conversion saying that the Mini-Dorm Ordinance is badly-written, we need more bedrooms in existing housing, density could be higher in already dense areas, and questions why this area is zoned R2.
During the discussion about this proposal, various Council Members commented:
Council Member Droste — the proposal exceeds density standards for the R2 district, and she agrees with the Southside Neighborhood Consortium that Mini-Dorms eliminate units for families.
Council Member Arreguin — this is already a non-conforming use, we need to build more housing along transit corridors, not in residential neighborhoods.
Council Member Wengraf — I’ve walked the block, there are many more non-conforming uses, it is pretty dense here, not sure that 8 or 10 more people will be a detriment.
Council Member Capitelli — the Mini-Dorm Ordinance is not doing what it was supposed to do, there are unintended consequences, but he will support a motion to deny.
Council Member Worthington — this proposal used to be in his Council District, and he is very well-acquainted with the area, has visited many apartments there and a “high percentage” have more than one person living in one bedroom. The City needs “at least 1,000 beds in the Southside campus area,” with the “highest priority being between Dwight Way and Bancroft Way.” There are a “dozen possible locations” in that area and about “4 current applications” for major buildings plus a dozen opportunity sites“ for such housing.
On a motion by Council Member Droste, seconded by Council Member Worthington, the Council voted to affirm the decision of the ZAB to deny the Use Permits for this proposal.
BNC supports this decision but remains concerned about what will happen to the Mini-Dorm Ordinance in the future. We repeat, Mini-Dorms affect every neighborhood, R1 through R3, so read on to what happened next…
At: 2133 Parker
First, just a little background that dates before the current Mini-Dorm Ordinance:
In March 2009, A. Ali Eslami purchased 2133 Parker in the R-2A Zoning District and on March 17, 2010, obtained an over-the-counter, by-right, building permit to increase the number of bedrooms in the property from 6 to 17. About two months later, complaints by neighbors that the property would be used as a Group Living Accommodation (GLA) which was not permitted in the R-2A District were lodged and Mr. Eslami’s alteration of the roof line and other work done without a permit convinced the City and ZAB to take another look. By the end of that year and into the next, neighbor complaints grew significantly and Mr. Eslami submitted leases as ”proof“ that his multiple tenants were living there as households. ZAB held several hearings as to whether the property was a ”public nuisance“ and finally on August 11, 2011 adopted a resolution that made findings that the renovated configuration of small bedrooms and minimal common space is designed for Group Living and not for households, and that rental as a GLA was a serious detriment to the neighborhood.
On November 15, 2011, the Council began the first of three public nuisance abatement hearings. Mr. Eslami submitted tenant declarations that rentals met the requirements for households, i.e., rental were based on the whole unit not room-by-room, and there was sharing of common space, costs, and household responsibilities. The City Manager’s report indicated staff had investigated and found there was no evidence such as locked bedroom doors and room number assignments that would indicate the property was used as a GLA. The City Manager recommended not declaring that the property was a nuisance, but noted that there was a record of ”some disturbances“ at the property and that a follow-up could be done if this got worse and if that happened, it could be declared a nuisance without regard as to whether it was a GLA.
On January 31, 2012 on a motion by Council Member Anderson, seconded by Council Member Arreguin, amended and approved Resolution No. 65,596-N.S.
Voting Yes: | Council Members Anderson, Arreguin, Moore, Worthington and Wozniak |
Voting No: | None |
Abstaining: | Mayor Bates and Council Members Capitelli, Maio and Wengraf |
The Resolution contained information that the property had 17 bedrooms and 19 occupants and that since it had been occupied since August (about 6 months) there had been numerous complaints about noise and unruly parties. Two of these complaints resulted in calls for service to the Berkeley Police Department (August 20 and September 16-17, 2014). The second call resulted in the UC Police Department and Berkeley Police Department shutting down the party as a ”public nuisance“ under the Second Response Ordinance. Thirty people were in attendance, people were intoxicated and music could be heard 50 feet away. Trash was strewn on the property and surrounding properties. It was also noted that the property had only one parking space and that tenants were parking on the street where few spaces were available. Further, that each unit had multiple bedrooms but only one common space that served as kitchen, dining room and living room. All the units were connected by an unlocked internal staircase and each unit was shared its one common space with all the tenants in the other units which the Resolution finds as evidence of a GLA.
The Resolution declared the property to be a public nuisance on two separate, but independent grounds:
- The new configuration was inconsistent with R-2A zoning regulations due to density, and
- The configuration demonstrated that it would be used as a GLA that is not permitted in the R-2A zoning district.
The Resolution required Mr. Eslami to demolish 10 existing bedrooms. The City Council vote also required that a copy of the Second Response Report for September 16-17, 2012 and the Notice of the Public Nuisance Abatement Hearing be attached to the Resolution.
BNC searched the City’s online records and found no Resolution No. 65,596-N.S., but readers can access the City staff report with the resolution at www.cityofberkeley.info/uploadedFiles/Clerk/Level_3_-_City_Council/2012/01Jan/2012-01-31_Item_24_2133_Parker_Street.pdf
Mr. Eslami went to Alameda County Superior Court, case #RG12-628979, alleging eight causes of action. Most of the eight were dismissed, however, on January 7, 2015, Judge Evelio Grillo found that:
The petition of A. Ali Eslami for a writ of mandate directing the City of Berkeley to void Resolution 65,596 (the ”Nuisance Resolution“) is granted.
Judge Grillo gives as his reason for this ruling that the:
weight of the evidence does not support the factual findings and resulting conclusions.
Other remarks by Judge Grillo include:
The Nuisance Resolution does not explain how the number of bedrooms in the configuration of the Property can be the cause of the noise, trash and other disturbances that are the factual basis for finding that the renovation is a detriment to the neighborhood.
Council’s finding that the Property was a GLA appears to have been implicitly based on the factual finding that it was inhabited by college age persons and a legal conclusion that a group of unrelated college age persons living together cannot be a household in the way that a group of unrelated persons of other ages can be a household.
He recognized that the police calls were a problem, but concluded that they did not rise to the level of public nuisance because the interference must be both substantial and unreasonable to justify voiding a permit.
The comment that goes to the heart of neighborhood concerns centers on the issue of density. Judge Grillo states that the Council did not identify any law that sets a maximum density. Instead the Council relied on the density standard set forth in the Land Use Element of the General Plan for each residential district, but that:
the Land Use Element states that the land use classifications are not intended to be used as standards to determine the maximum allowable density on a specific parcel. There is, in short, no standard for determining whether any specific property has ‘excessive density.’
If the City wants to have density standards that apply to individual parcels, then the City must do so through ordinances or regulations that give property owners and residents fair notice as to quantitative limits and whether the limits are tied to the physical attributes of the buildings or the number of persons who reside in the buildings.
BNC has not heard of any discussion by the Council regarding this Court decision. In fact, we only learned of the decision via e-mail from a resident. We strongly request that the Council hold such a public discussion of what this all means.
We don’t know what it means and we don’t know how it will affect the Zoning Ordinance, the Mini-Dorm Ordinance, the appeals that have been made and whether the Council will appeal Judge Grillo’s decision.
It is interesting to note that neighbors have reported that parties have resumed at 2133 Parker St right after the release of Judge Grillo’s decision. BNC has heard that one occurred on a Saturday night just a few days ago. It was loud enough to disturb the neighbors and lasted until midnight.
Comments from all neighborhoods, groups and individuals are extremely welcomed.