B. Parties Involved: Applicant: Ali Eslami, P.O. Box 4623, Berkeley, CA 94794

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Theodore Nichols
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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 FOR BOARD CONTINUANCE JUNE 9, 2011 2133 Parker Street Abatement Hearing Pursuant to 23B.64.030 of the Zoning Ordinance.

1 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 FOR BOARD CONTINUANCE JUNE 9, Parker Street Abatement Hearing Pursuant to 23B of the Zoning Ordinance. The Zoning Adjustments Board initiated Abatement Proceedings Regarding: 1) the recent construction to increase the number of bedrooms; and 2) the intended use of the building to determine if it would be used by Households or as a Group Living Accommodation. I. Application Basics A. Land Use Designations: General Plan: MDR, Medium Density Residential Zoning: R-2A, Restricted Multiple-Family Residential B. Parties Involved: Applicant: Ali Eslami, P.O. Box 4623, Berkeley, CA II. Recommendation CONTINUE Nuisance Abatement Proceedings to July 14, Attachments: 1. Correspondence Received 2120 Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 Page 1 of 5 June 2, 2011 Dear Zoning Adjustment Board: My name is Michael Chinn and I have lived at 2123 Parker Street for 23 years. There are 3 issues I would like to comment on concerning the project at 2133 Parker Street. 1. The applicant has constructed a Group Living Accommodation project which is illegal and well beyond any reasonable use of this property. The single parking place is woefully inadequate for the 17+ bedrooms, several of which will presumably be rented to more than 1 person. The City/ZAB needs to prevent any Residential Parking Permits from being issued to anyone living at this address, and this needs to be recorded as a deed restriction. 2. Any group living accommodation is restricted to 7 bedrooms by the BMC (Berkeley Municipal Code) in this R2A zoning district, based on a lot size of 5400 square feet. The owner(s) should not be given any occupancy certificate unless his building conforms to this restriction. I will not detail the numerous issues of how this type of housing impacts the neighborhood and the City in negative ways. 3. The owner began building an illegal fourth floor. The Planning Department has legalized this floor by labeling it a mezzanine. Berkeley s own Building Department has labeled this addition a fourth floor, and they believe it conforms to a fourth floor as defined by the BMC. The City needs to investigate this issue and order the removal of the fourth floor. I am attaching a document which clarifies the mezzanine issue. (This document was previously submitted to the ZAB in January, 2011.) Thank you for your efforts to address these issues. Sincerely, Michael Chinn

3 Page 2 of PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 1 of 3 January 26, Parker Street: Mezzanine/Fourth Floor Report Key Issue: Is this a legal mezzanine or an illegal fourth floor? There has been confusion related to the fourth floor/mezzanine constructed at 2133 Parker Street. The Planning Department defined it as a mezzanine, while the Building Department defined it as a fourth floor. ( ZAB Staff Report; 2133 Parker Street Plan (version G), Dec. 2010; see Note 1 below) Analysis: 1. The definition of a mezzanine is an intermediate level of a building interior containing floor area. (BMC, Definition of Mezzanine) The mezzanine at 2133 Parker is not an intermediate level, and does not meet the definition of a mezzanine. 2. The term mezzanine appears only in Sub-Title 23E PROVISIONS APPLICABLE IN ALL NON- RESIDENTIAL DISTRICTS of the BMC, and does not appear in any residential provisions, indicating that code provisions/exemptions governing mezzanines are restricted to non-residential buildings. (Even non-residential buildings are required to count a topmost mezzanine as an additional story, otherwise all non-residential buildings could build an additional uncounted story as a mezzanine.) 3. The definition of the topmost story is that portion of a building between the floor of the topmost floor and the ceiling or roof above. To clarify what this means, see Figure 8 Determination of Stories below, which shows that any floor area next to the roof containing usable floor area shall be counted as a story. (BMC, Definition of Story) Usable space is defined as Any portion of a building or structure which is designed to be or can be used as habitable space, which has finished walls (sheetrock or plaster) and/or is heated with any fixed furnace (BMC, Definition of Usable Space) Note that finished walls (absent in a mezzanine) are not required to define usable space if the area is heated. Habitable space is defined as space in a building which is used or designed to be used for living, sleeping, eating or cooking, (BMC, Definition of Habitable Space) These definitions define what is to be counted as the topmost story. Any area which is heated and contains usable or habitable space at the top of a building is counted as a story. The presence or absence of finished walls is not an issue. The size is irrelevant, e.g. a mechanical penthouse is counted as a story as long as it contains any usable floor space. The mezzanine area at 2133 Parker, even if used for storage and unheated, is counted as a story because it contains usable space and is over 6 feet in height.

4 Page 3 of PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 2 of 3 January 26, When the legality of the mezzanine was discussed at the Oct. 28 ZAB meeting, the Planning Department s position was stated as follows: It is a building code issue at this point. If it conforms to the building code, we found that it conforms to zoning. The Building Department determined that it conforms to the definition of a fourth floor, and stated so on the building plans for this project. (ZAB meeting, Oct 28, 2010, 2:38; see Note 1 below) 5. And finally, in case of conflict between any of the provisions of this Ordinance, the most restrictive shall apply. The Building Department s definition of a floor is more restrictive than the Planning Department s mezzanine. (BMC, 23A Use of Language; see Note 1 below) Conclusions: The Planning Department is incorrect in calling it a mezzanine, even assuming that the floor area calculations to exempt it were done correctly. (BMC, 23F.04, Definition of Mezzanine) It is the topmost (fourth) story of the building. A mezzanine-like structure above the top (third) floor is always counted as an additional story. The topmost story at 2133 Parker is therefore the fourth floor, and illegal in an area zoned R-2A. (23D Development Standards) Recommendations: The illegal fourth floor should be subject to abatement and removal. In consideration of the past history of unpermitted building changes, additional steps should be taken to prevent a conversion of the attic space to illegal usable floor space. This could include, but not be limited to, removal of the stairway leading to the attic, lowering of the ceiling height at dormer openings or removal of dormers altogether, limiting/closing ceiling access between the attic and any lower story rooms, as well as recordation of deed restrictions to prevent any future illegal use of the attic. BMC_Sub-Title_23F.04_DEFINITIONS: Story: That portion of a building included between the upper surface of any floor and the upper surface of the floor next above, except that the topmost story shall be that portion of a building between the floor of the topmost floor and the ceiling or roof above. If the finished floor level directly above the ceiling of a basement, garage structure, cellar or unused underfloor space is more than six (6) feet above existing grade at any point, such basement, cellar or unused underfloor space shall be considered a story. Penthouses used for purposes other than shelter of mechanical equipment or shelter of vertical shaft openings in the roof shall be considered a story. See Figure 8.

5 Page 4 of PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 3 of 3 January 26, 2011 (Figure 8 Determination of Stories) Usable Space: Any portion of a building or structure which is designed to be or can be used as habitable space, which has finished walls (sheetrock or plaster) and/or is heated with any fixed furnace or central heating system, including bathrooms, halls, garages and laundry rooms. Storage areas with over six (6) feet of vertical space shall also be considered usable space. Habitable Space: A space in a building which is used or designed to be used for living, sleeping, eating or cooking, but not including garages, bathrooms, utility, storage and laundry rooms, halls or closets. Penthouse, Mechanical: A room or enclosed structure, attached to the roof level for the uppermost story, for purposes of sheltering mechanical equipment, water tanks and/or vertical openings for stairwell and elevator shafts. Such a structure shall be considered a story if it contains usable floor area or habitable space. Mezzanine: An intermediate level of a building interior containing floor area without complete enclosing interior walls or partitions, placed in any story or room and not separated from the floor or level below by a wall. The floor area of any Mezzanine shall be counted as part of the total floor area for any floor area or FAR limitation. In addition, when the total floor area of any such Mezzanine exceeds thirty-three and one-third percent (33.3%) of the total floor area in that room, it shall constitute an additional Story. No more than one (1) continuous Mezzanine may be permitted in any one (1) room. Note 1: Fourth Floor Plan: Per Building Department definition, this is the Fourth Floor. Per Planning Department, it is a mezzanine. (Plan notation for mezzanine/fourth floor on 2133 Parker Street Building Plans, version G, page A3.0, Dec. 22, 2010)

6 Page 5 of 5 June 2, 2011 Robert Allen Zoning Adjustments Board 2133 Parker Project Was Not Noticed to Neighbors Dear Mr. Allen, At the meeting of May 12, you stated that you understood that the project was advertised in the neighborhood in the normal 300 feet. You then said I d be pleased to hear if I m wrong on that one. Thank you for your willingness to hear that you are wrong in that assumption. No one in the neighborhood received notice of the project prior to construction, not even the neighbors who live directly next door. There was no yellow sign in front of the building at any time prior to beginning the project. The very first hint that something was amiss was when the owner began to construct a fourth floor on a Friday before a long weekend. This prompted a few neighbors to go to the Planning Department and look at the plans. It was only then that we realized that the owner had no permits to alter the roof, and that the project had three units with little or no shared space and a total of 19 bedrooms. Thanks again for your willingness to hear this. Sincerely, Gale Garcia Cc: Members of the Zoning Adjustments Board

Mini-dorms and Group Living Accommodations

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 M e m o D i s c u s s i o n I t e m FOR BOARD REVIEW AND COMMENT MARCH 10, 2011 Mini-dorms and Group Living Accommodations I. General Background In