Mini-dorms and Group Living Accommodations

Transcription

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 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 response to recent community concerns about certain development activity, the Zoning Adjustments Board has requested the opportunity to discuss issues related to Mini-dorms and Group Living Accommodations. 1 For purposes of this memorandum, mini-dorms are properties that conform to the Zoning Ordinance, but have a large number of bedrooms and can therefore be occupied by a large number of people relative to surrounding properties. In contrast, Group Living Accommodations ( GLAs ) are buildings (or portions thereof) that are designed for or accommodate residential use by persons not living together as a household (but excluding hospitals, nursing homes and tourist hotels). Examples of specific types of GLAs are dormitories, fraternity/sorority houses, rooming houses / boarding houses, senior congregate housing, and transitional housing. The main distinction between mini-dorms and GLAs that triggers additional regulation of GLAs has to do with whether the occupants constitute a household. Consistent with state law, a household is defined as 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 rent or mortgage payments, food costs and utilities, as well as maintaining a single lease or rental agreement for all members of the Household and other similar characteristics indicative of a single Household. 1 This memorandum is intended to provide a broad background rather than address a specific property. Staff has previously provided the ZAB with focused background information as part of recent public discussions relating to the property at 2133 Parker Street in the context of a Use Permit hearing. Neighbors have also provided the ZAB with assertions relating to that specific property and requested abatement of that property. While perhaps related, those issues should not be considered during the present discussion of GLAs Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 2 of 13 March 10, 2011 In other words, as long as the occupants of a mini-dorm are a household, it is considered a conventional single or multiple-unit building. If they do not live as a household, it becomes a GLA, subject to additional permit requirements. Nonetheless, although mini-dorms may conform to the Zoning Ordinance requirements for single or multiple-unit buildings, they generally have a large number of bedrooms and can therefore be occupied by a large number of people relative to surrounding properties. Mini-dorms and GLAs are related: a concern that has often been expressed is that although they apparently conform to the Zoning Ordinance, mini-dorms are in effect, or can too easily become, GLAs, which are prohibited in some residential districts and require discretionary approval in others. This memorandum addresses how the City can regulate legal residential buildings such that they do not become mini-dorms, in conformance with constitutional and statutory limitations on regulation of property based on the characteristics of who is occupying the property, whether it is owner-occupied or rented, or according to other protected classes including sex, race, religion, and others. In brief, the City may not distinguish between traditional and non-traditional families, or between students and a group of adults who form an intentional community, or any other type of group. Nor can the City regulate occupancy directly by reference to the size of a building or lot development standards. Rather the City Is limited to regulating based on the physical characteristics of the building and site, e.g., setbacks, height, parking, and useable open space. Definitions of these uses and related terms are provided in an attachment to this report. Group Living Accommodations (GLAs) are found in several neighborhoods, including downtown, south and north of campus, and along commercial corridors. GLAs are an important part of the City s housing stock. Rental housing is in high demand for students and others, and many persons choose, or cannot afford an alternative to, living in arrangements that are not a traditional household. While they are most often associated with college students, GLAs include dormitories, rooming and boarding houses, fraternities and sororities, as well as transitional housing, senior congregate housing, and residential hotels. They may also be part of a mixed-use development. Although commercial mixed use development and the ability to add accessory dwelling units to owner-occupied single-family property have relieved some of the pressure for additional housing, the supply of and demand for additional housing continues to grow as the University and region continue to grow. Some of the housing being developed includes University dorms for students, families and faculty; private dorms; small apartments; and renovation of existing buildings to increase the number of bedrooms. As a result of earlier down-zoning, many properties contain legal non-conforming buildings, meaning that they do not conform to the current requirements of the Zoning Ordinance, but conformed when they were built. Properties can be non-conforming File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

3 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 3 of 13 because they contain more dwelling units than would be allowed under present zoning, and/or do not conform to some other current development standards, oftentimes related to off-street parking requirements. Many of these buildings were converted to higher intensity use in the post-war period of the 1940s and 50s when zoning allowed higher density with fewer standards. Legal or legal non-conforming properties can often be converted to mini-dorms in conformance with the Zoning Ordinance, by the creation of additional bedrooms, thus enabling their occupancy by a large number of people relative to surrounding properties. This is often going to be an issue in a college community where a large number of students can rent out a unit with many bedrooms and, because each student pays rent, can afford to pay much more to rent a property than most families. As noted above, such alterations lead to concern about whether they in effect become GLAs. II. Land Use Regulations General Plan policies The General Plan provides policy direction when considering the overall intent of the Zoning Ordinance; a finding of consistency is also required for land use permits. The General Plan includes a land use map that identifies areas for residential, commercial, industrial, institutional, mixed-use and open space use. The residential land use categories include density ranges and unit types, and reference is made to zoning districts that would be compatible with these land use designations. Several General Plan policies are typically considered when evaluating residential development projects, including additions to existing buildings. They relate to ensuring compatibility with neighboring uses, evaluating architectural character, preserving historic resources, and protecting the environment, while also encouraging greater density near transit and meeting regional housing needs. Zoning regulations The Zoning Ordinance provides definitions for various land use and building types, establishes zoning districts that regulate land use and development throughout the city in accord with the General Plan land use diagram, and establishes permit procedures and necessary findings to allow certain uses and buildings in each district. o Definitions: The following pertinent definitions are provided in BMC Chapter 23F.04. Dwelling Unit A building or portion of a building designed for, or occupied exclusively by, persons living as one (1) household. 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 rent or mortgage payments, food costs and utilities, as well as maintaining a single lease or File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

4 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 4 of 13 March 10, 2011 rental agreement for all members of the Household and other similar characteristics indicative of a single Household. Group Living Accommodation A building or portion of a building designed for or accommodating Residential Use by persons not living together as a Household, but excluding Hospitals, Nursing Homes and Tourist Hotels. Specific GLAs Defined land uses that qualify as a GLA include Dormitory, Fraternity House / Sorority House, Rooming House / Boarding House, Senior Congregate Housing, and Transitional Housing. Additional definitions are provided as an attachment to this report. o Zoning Districts: Residential zoning districts (and commercial districts) provide for the orderly regulation of land uses, generally with increasing intensity of use from the R-1 to the R-5 District. This progression of intensity is expressed in the intent of the district, and in the specific uses, densities, and other standards established in the district. A comparison of residential district standards related to GLAs is provided in Table 1. o Permit Procedures / Findings: The Zoning Ordinance lists land uses that may be allowed in Table XX.030 of each District, and lists development standards that apply in Section XX.070 of each District. These uses and development are permitted by right, with an Administrative Use Permit, or with a Use Permit / Public Hearing according to each District s regulations. GLAs are subject to a Use Permit in each district where they are allowed. Such a Use Permit is subject to findings of non-detriment, and other findings as expressed in subsections of the Ordinance for special uses or for certain districts. o Administrative Regulations / ZAB Polices: In 1996, the ZAB adopted a policy that defines a dwelling unit as including separate bathing facilities, i.e., a bath or shower, in order to control the conversion of accessory buildings such as workshops to dwelling units. Similar administrative regulations or policies can be adopted by the Zoning Officer or ZAB in interpreting the application of the Zoning Ordinance. Similarly, guidelines are prepared by the Zoning Officer to require certain information as part of applications for discretionary permits. Both of these tools supplement the explicit requirements of the Zoning Ordinance. However, a more consistent regulatory framework is created where amendments to the Ordinance are adopted by Council. Overall consistency must be ensured and practical considerations apply. File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

5 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 5 of 13 Table 1: Land Use Regulations Residential Zoning District * GLA Allowed? GLA Density (residents per sq.ft. of lot area) Other Residential Density (dwelling units per sq.ft. of lot area) ** R-1 No N/A Single-Family 1 / 5,000 Notes R-1A No N/A Single-Family and Duplex 1 / 2,500 ES-R No N/A Single-Family 1 / 5,000 R-2 No N/A Single-Family, Duplex and Multi-Family 1 / 2,500 R-2A No N/A Single-Family, Duplex and Multi-Family 1 / 1,650 R-3 Yes 1 / 350 Single-Family, Duplex, Multi- Family and GLA R-4 Yes 1 / 350 Single-Family, Duplex, Multi- Family and GLA R-5 Yes 1 / 175 Single-Family, Duplex, Multi- Family and GLA A GLA density standard of 1 / 800 sq.ft. of lot area is established, but is inapplicable because GLA is not an allowed use. *** *** *** R-5 District applies to the University of California campus and C-2 Central Commercial District. * Commercial Districts also permit GLAs, subject to R-3, R-4, and R-5 standards. ** Accessory Dwelling Units are also permitted in each district except ES-R subject to certain standards. *** In R-3, R-4 and R-5, parking is required as determined by the Board, or 1 space / 5 residents plus one for manager in case of Dormitory, Fraternity/Sorority, Rooming/Boarding House, and Senior Congregate Housing. File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

6 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 6 of 13 March 10, 2011 III. Recent Issues Several zoning cases have brought this issue to the attention of the ZAB and Council over the past few years. These include the properties at 3045 Shattuck Avenue, 2516 Ellsworth, and 2133 Parker Street Shattuck involved the conversion of a two-unit residence to a mixed-use project. Known as the flying cottage, this project included allegations of converting the residential units to GLAs. Evidence supporting the conclusion that the property was in fact intended to be operated as a GLA included statements by the owner and tenants, and the design of the renovation that included limited common area and separate entrances. Based on this evidence, the City required the owner to redesign the floor plans to include fewer bedrooms and common area more suited to a household use Ellsworth involved a major addition to an existing multi-unit building that would also have added several bedrooms to each unit. The Council exercised its discretion in denying the Use Permit based on overall detriment due to the increased concentration of people on the property and lack of parking. The property owner proceeded to develop the property with a by-right addition that allowed some expansion while retaining the general non-conforming conditions as to parking Parker involved the renovation of a multi-unit property including the conversion of space within the building envelope from storage and parking to habitable space. The number of bedrooms per unit increased substantially; however, the City reviewed the project as an Administrative Use Permit only because the original proposal would have required discretionary review for a new egress deck and stairs, removal of parking, and roof height modifications. Upon denial by the ZAB, the developer revised the plans to provide interior egress stairs, replace parking within the building, and restore the roof height to its original configuration. In each of these cases, the City found that there were limited regulatory controls on the ultimate development of the property. In essence, the City does not have a maximum limit on the number of bedrooms per unit or persons per unit, and cannot impose additional requirements on properties that have legal non-conforming density, lot coverage, parking, or other conditions if no discretionary permit is otherwise required. In contrast, another set of projects recently have been approved specifically for use as GLAs. These include the Westminster House and Wesley House in the Southside area. As private dorms, these projects are intended to be rented to individuals, with living arrangements including suites of rooms and limited common area or kitchens. The fact that the facilities are advertised for rent as individual beds with roommate matching services and on-site management add to the conclusion that these are File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

7 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 7 of 13 GLAs. 2 Another project, 1122 University, was specifically required to amend its advertisements and leasing practices after the City found that it appeared to be intended to operate as a GLA where it had been approved as apartments or condominiums. IV. Enforcement Practices The Code Enforcement Division of the City Manager s Office investigates complaints relating to the use and development of property. The Division coordinates the efforts of multiple City departments to gather background information and conduct inspections, identify and interpret applicable regulations, and establish requirements for compliance. While the Code Enforcement Division is empowered to require physical modifications of property, impose fines for non-compliance, and require the vacancy of nonconforming development, the division uses its discretion in enforcing City ordinances based on the severity of the violation and other factors such as the presence of existing tenants. In general, complaints about group living accommodations are investigated to determine whether a single lease is used for the unit, and whether there is other evidence of using the property as other than a dwelling unit such as individual room numbers, separate entrances, separate kitchens, rental advertisements, property management structures, etc. Interviews are often conducted with tenants and owners to determine intent and practice, and corrections are required where there is a violation of the ordinance. In general, the division works with owners to assist them in pursuing legal remedies such as obtaining appropriate land use entitlements before imposing penalties. V. Regulatory Options Introduction The ZAB has inquired what options are available to further regulate and/or prevent the creation of additional properties that are occupied by a high number of unrelated individuals but are not authorized as GLA s. As noted above, existing law requires the City to allow occupancy by unrelated individuals. In addition, state law preempts the field of occupancy limitations, whether by reference to building size or lot development standards (such as parking or open space). However, it is possible to regulate the construction or alteration of buildings as opposed to occupancy based on their physical characteristics. 2 Wesley House includes Dwelling Units (required for the approved density bonus) and GLAs. Because the physical development of the units is the same, the distinguishing factor applied by the City relates to the terms of the lease, i.e. whether there is a single master tenant or individual leases for rooms or beds. File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

8 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 8 of 13 March 10, 2011 Options to Consider Staff offers the following suite of options to consider. Others may also be available. Require a certain ratio of common area to private bedrooms. Require additional parking, based on the number of bedrooms. Require discretionary review for an increase in the number of bedrooms. Require discretionary review for an increase in the habitable area of buildings. Require discretionary review of additions to buildings that are non-conforming by reason of density. Require design review of residential additions, possibly including interior layout. Each of the options listed above provide possible benefits in terms of increasing regulatory control, but could include unintended consequences, be unworkable/unenforceable, or be inconsistent with other goals and policies or ordinances of the City. Further review, including a public process, will be required to resolve these issues by the bodies responsible for policy and ordinance adoption, if the ZAB wishes to forward any of these options to the Planning Commission and Council. Staff offers the following preliminary considerations. Common Area / Bedrooms. According to the State Health and Safety Code, residential rental units must have at least one room that is 120 square feet, and each bedroom must be at least 70 square feet, plus 50 square feet per occupant for bedrooms occupied by more than two people. The City of Berkeley does not currently have a separate standard for rental livability. Recent complaints relate to the fact that existing floor area can be divided up into more bedrooms with less common area e.g., living and dining rooms. However, the City does not conduct design review for residential projects except mixed-use projects in commercial districts, and even then does not consider interior design unless it directly affects the exterior. Therefore, applying new standards of design would require a major amendment to the Zoning Ordinance, imposing a wholly new set of procedures and standards. There is no common standard or ratio of common area to bedrooms that staff is aware of that could be the basis for this type of regulation. The Building Permit process is the only opportunity for City review of interior residential space, and that review is ministerial (if the plan meets the minimum code requirements it must be approved). While recent complaints have asserted that the Zoning Ordinance provides for an analysis of whether a building is appropriately designed or used, the Planning Department does not have discretion over Building Permits that meet the minimum standards. Parking / Bedroom Standards. Parking standards could be amended to require more spaces based on the number of bedrooms. Parking standards are perhaps the most typical way that most communities regulate the intensification of residential structures. However, Berkeley is well-served by transit and is highly supportive of alternative travel modes, with very low parking standards and lenient waiver procedures to encourage a less car-dependent culture. Modifying parking standards to increase the number of required spaces would have to be balanced by other protections such as File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

9 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 9 of 13 limiting the amount of paving and curb-cuts on a property, in addition to the screening and setback requirements already in place. Because many dwelling units in Berkeley were built before the advent of parking requirements, new parking requirements would make perhaps the majority of existing homes and apartments in Berkeley nonconforming, making modification and improvement of most residential structures (not limited to GLAs) subject to new requirements. Increased Bedroom Count. The only District that currently regulates the addition of bedrooms is the ES-R District, where there are severe infrastructure constraints and potential hazards that have led to a number of special Ordinance provisions to limit the increase in the number of people exposed to these hazards. Otherwise, the Zoning Ordinance does not presently regulate the number of bedrooms allowed per dwelling unit, or consider the number of bedrooms when evaluating residential additions, unless the addition or conversion represents an Accessory Dwelling Unit, or conversion of an Accessory Building to habitable space. Instead, the Ordinance addresses the exterior physical construction and related open space, parking, and similar concerns. The ZAB could consider regulating the number of bedrooms in other zoning districts; adopting such a regulation would require a finding that there exists a specific public health, safety or welfare concern that warrants such a regulation. Increased Habitable Area. The Zoning Ordinance presently regulates increases in gross floor area, i.e. additions that change to envelope of the building, not increases in the habitable area of existing residential buildings. For example, an Administrative Use Permit is required for a residential addition of greater than 600 square feet or 15% of the lot area, whichever is more restrictive, but not if it is enclosed within the existing shell such as excavating a basement or adding a mezzanine level. The ZAB could consider regulating additions of habitable area instead of gross floor area, which would capture conversions of basements and other areas to living space. Additions to Non-Conforming Buildings. The City provides relatively lenient controls on non-conforming buildings due to the high number of existing non-conforming conditions throughout the city, a public interest in preserving the existing housing stock, and other reasons. Currently, an Administrative Use Permit is required to modify a building within a required setback, and a Use Permit is required for additions that would increase non-conforming lot coverage, floor-area-ratio, density, or where the property includes a non-conforming use. However, additions that otherwise conform and do not further increase the non-conformity are allowed even on lots that are non-conforming for any of the above reasons. The ZAB could consider ways to further limit additions, such as requiring a Use Permit for additions (perhaps over a certain threshold) to any non-conforming building or lot, regardless of whether the specific non-conformity would be directly affected. Such an approach would not directly address the number of bedrooms or occupants on a property, and while review would be conducted it would not necessarily allow the City to limit increased bedrooms or occupants. File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

10 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 10 of 13 March 10, 2011 Interior Design Review. It has been suggested by some concerned residents that because the Zoning Ordinance definition of Dwelling Units and GLAs includes the term "designed for", interior design review should be included in the City's review of building and other permits. The City currently regulates exterior design of buildings in the Commercial and Industrial zoning districts or commercial buildings in the R-4 District. Interior design review is only indirectly considered where it affects the exterior design. At present, City staff consider the exterior design of residential additions to the extent it may relate to the required "detriment" finding for an Administrative Use Permit or Use Permit, but only where such a permit is otherwise triggered by other factors. Adding stand-alone design review, let alone interior design review, to the Residential zoning district regulations would be a major change in the City's approach to land use regulation, requiring a substantial effort to implement code revisions, procedural and policy guidance, and increased staff and expense for the City and property owners. Conclusion The City of Berkeley already regulates GLAs including rooming houses, and applies a strict standard of one lease per dwelling unit. There are legal limitations on how the City can regulate the occupancy of private property, and non-traditional or large households must be accommodated. Adding certain additional permit thresholds and requirements is possible, but must be carefully constructed to address only legallyallowable areas of interest. Because the City already regulates GLAs in several Zoning Districts, and excludes them from others, adding regulations to capture the issue of mini-dorms will have to be coordinated with those existing provisions. VI. Recommendation Staff recommends that the ZAB discuss the information contained in this report and provide advisory comments to staff. Recommendations for zoning ordinance amendments could also be forwarded to the Council for consideration and referral to the Planning Commission for further study. Staff Planner: Steven Buckley, sbuckley@ci.berkeley.ca.us, (510) File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

11 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 11 of 13 Other Definitions from the Zoning Ordinance Dormitory A building providing Group Living Accommodations, occupied by individuals not sharing a common household, characterized by separate sleeping rooms without individual kitchen facilities and containing congregate bath and/or dining facilities or rooms. Rooming House A building used for residential purposes, other than a hotel, where lodging for five (5) or more persons, who are not living as a single Household, is provided for compensation, whether direct or indirect. In determining the number of persons lodging in a Rooming House, all residents shall be counted, including those acting as manager, landlord, landlady or building superintendent. Boarding House A building used for residential purposes, other than a hotel, where lodging and meals for five or more persons, who are not living as a household, are provided for compensation, whether direct or indirect. In determining the number of persons lodging in a boarding house, all residents shall be counted, including those acting as manager, landlord, landlady or building superintendent. Fraternity House / Sorority House A building used for Group Living Accommodations by an organization recognized by the University of California at Berkeley or other institution of higher learning. Transitional Housing Any dwelling unit or a Group Living Accommodation designed or operated as temporary living quarters or residence for homeless persons or victims of abuse. Such housing includes, but is not limited to, shelters for the homeless, women s shelters and refuges for battered persons. This does not include any facility licensed as a Community Care Facility by the California Department of Social Services (SDSS) or defined as such in this Chapter. Residential Hotel A building which provides rooms for rent for residential purposes, including Single Residential Occupancy (SRO) Hotels. Residential Hotels are a type of Group Living Accommodation. Senior Congregate Housing A use which provides Group Living Accommodations occupied by persons sixty (60) years or older in age who live in sleeping rooms without kitchen facilities, and which contain congregate bath and/or dining facilities or rooms, but does not include Community Care Facilities. Community Care Facility Any facility, place or building where non-medical care and supervision of children, adolescents, adults or elderly persons is conducted under license from the California Department of Social Services (SDSS), but not including medical care institutions, skilled nursing facilities, nursing homes, foster homes, family day care homes, child care facilities or transitional housing. Addition The creation of any new portion of a building which results in a vertical or horizontal extension of the building, or results in any new gross floor area that was not present in the building prior to construction of the addition. The creation of a mezzanine or loft, or a conversion of a previously unused attic or underfloor space to usable floor area, shall be considered an addition for the purposes of this chapter. Addition, Residential: The creation of any new portion of a main building which results in a vertical or horizontal extension of the building, or results in additional residential gross floor area to an existing main building, as long as File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

12 GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM ZONING ADJUSTMENTS BOARD Page 12 of 13 March 10, 2011 such new gross floor area does not exceed 15% of the lot area or 600 square feet, whichever is less. For purposes of this definition gross floor area shall not include additions of gross floor area devoted to required off-street parking spaces, creation of mezzanines or lofts within the building s shell, making previously unusable attics into habitable floor area (except where new areas with vertical clearance of six feet or greater are created through expansions of the building shell), excavations of earth within the existing building footprint (i.e. expansion of existing basements or new basements), or replacement of existing floor area that was lawfully constructed and is located entirely within the addition s shell. Addition, Major Residential: A residential addition greater than 15% of the lot area or 600 square feet. Floor area from all residential additions since October 31, 1991, with the exception of (1) additions that are entirely subsumed within previously existing floor area and (2) the floor area of subsequent stories where the addition does not exceed the district residential addition height limit, shall count towards the calculation of gross floor area for the purposes of this definition. Any new floor shall be treated as a new major residential addition for the purpose of permit processing, when the cumulative square footage exceeds 15% of the lot area or 600 square feet, whichever is less. Permit Procedures By Right / Zoning Certificate The Zoning Officer evaluates the proposal and determines whether it conforms to the basic requirements of the Zoning Ordinance, in which case it may proceed with a building permit, business license, or other ministerial permit. In general, this includes small-scale building additions, re-occupying a vacant storefront, etc. No discretion is exercised in issuing these permits if they comply with the minimum requirements of the Ordinance, they must be issued. No appeal process is provided. Administrative Use Permit The Zoning Officer evaluates the proposal and imposes conditions of approval, after making findings that the project will not cause detriment to the neighborhood. This permit is discretionary, meaning that judgment is involved in making the findings and imposing conditions. The findings must be supported by evidence and the conditions must be reasonably related and proportional to the project s potential impacts. No public hearing is required. Decisions may be appealed to the Zoning Adjustments Board. Use Permit / Public Hearing The Zoning Adjustments Board evaluates the proposal and conducts a public hearing, and exercises the same discretion as the Zoning Officer, with appeals heard by the City Council. File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

13 ZONING ADJUSTMENTS BOARD GROUP LIVING ACCOMMODATIONS DISCUSSION ITEM March 10, 2011 Page 13 of 13 Zoning Map (excerpt showing R-3, R-4 and R-5 Districts) File: C:\Documents and Settings\SBuckley\Desktop\ _ZAB_GLA_Discussion.docx

14 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 Group Living Accommodations The Zoning Adjustments Board has requested that staff facilitate a discussion related to Group Living Accommodations. A memo will be provided for the March 10, 2011 ZAB meeting outlining several considerations for the discussion Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

15 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 1 of 3 March 10, 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.

16 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 2 of 3 March 10, 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. This statement implies that the building department agreed that this is a mezzanine, and that it was legal. However, the Building Department correctly 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.

17 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 3 of 3 March 10, 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)

18 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 1 of 2 March 10, Parker Street: Group Living Accommodation and Abatement Issues Key Issue: How should the ZAB address the issue of an illegal Group Living Accommodation (GLA) being constructed in an R-2A zoned neighborhood? Analysis: This project is illegal on two issues related to being a group living accommodation: A. The applicant has constructed a GLA, and conforms by its design to the definition of a GLA In the BMC a group living accommodation is defined: Group Living Accommodations: A building or portion of a building designed for or accommodating Residential Use by persons not living together as a Household, but excluding Hospitals, Nursing Homes and Tourist Hotels. (Section 23F Definitions) Although a GLA can also be defined through multiple rental agreements instead of a single lease agreement, that is clearly not a requirement, since it can also be identified by design. It has been clearly established that the project at 2133 Parker Street has been designed as a Group Living Accommodation. The evidence includes: 1) floor plan changes to minimize shared common spaces such as living room, dining room, and kitchen, allowing the number of bedrooms to be increased from 6 bedrooms to 19 bedrooms(with a floor added); 2) number of bedrooms is 2.5 times in comparison to similar projects; 3) an architectural evaluation found this to be designed for group living; 4) applicant s offer to hire a resident manager indicates he expects to rent to individuals, not households. (See also documents submitted to ZAB for March 10 titled 2133 Parker Street: Neighborhood Abatement Request -WHY THIS IS AN ILLEGAL GROUP LIVING ACCOMMODATION; also online at 2133parkerstreet.info) B. The applicant stated he was modifying an existing multi-family property, which had been used by a single family for 50 years, but making no change in the use. He converted the multi-family property into a GLA. His original permit should never have been issued, and is null and void since the changes he proposed were illegal. The change in use from a multi-family dwelling also requires a use permit approved by either a Zoning officer or the Board. Nuisances Prohibited: All departments, officials and employees of the City vested with the duty or authority to issue permits shall conform to the provisions of this chapter and shall issue no permit or license for uses, buildings or purposes in conflict with this chapter; and any such permit or any business

19 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 2 of 2 March 10, 2011 license issued in conflict with the provisions of this chapter shall be null and void. (Section 23B Nuisances Prohibited) Modification of Permits: No change in the use or structure for which a Permit has been issued is permitted unless the Permit is modified by the Zoning Officer or Board. Changes which require modification include, but are not limited to, the following: (3)Changing a building s occupant load rating under the City s Building Code so that it is classified in a different category with a higher occupancy rating; (4) Increasing the number of employees, beds, rooms or entrances; (8)Any other change that expands, intensifies or otherwise substantially changes the use or building. (23B Modification of Permits) Conclusion: The project violates Berkeley ordinances in two areas. This project is in violation of zoning ordinances which permit one Group Living Accommodation room shall be allowed for each 800 square feet of lot area, or a maximum of 7 at this location. The applicant s original permit should never have been issued for this illegal renovation. He should be required to apply for a new permit with a public hearing for a group living accommodations. Recommendations: The ZAB should set a time and place for a public hearing on the abatement of these violations. They should direct the building department to issue an immediate stop work order until this hearing can be held. A violation of any provision of any City of Berkeley Ordinance is a nuisance and subject to abatement. (23B Nuisances Defined) Proceedings to abate any use, structure or building may be initiated by the ZAB, and the ZAB shall fix a time and place for a public hearing on the proposed abatement. (23B Proceedings for Initiation of Abatement)

20 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 1 of 5 March 10, Parker Street: Neighborhood Abatement Request I. WHY THIS IS AN ILLEGAL GROUP LIVING ACCOMMODATION II. NEIGHBORHOOD COMMUNITY REQUESTS I. Why this is an Illegal Group Living Accommodation A. Existing floor plans were changed to make it a Group Living Accommodation Shaded areas are private areas of bedrooms or bathrooms. Non-shaded areas are common areas. Drawings are from ZAB Parker Project Plans and Applicants Statement ; Revised This was the 2nd floor before remodeling. There were 2 bedrooms. This is the 2nd floor after remodeling. There are now 6 bedrooms. The previous living room, dining room, and part of the kitchen were eliminated and replaced by 4 bedrooms and a single combined living - dining - kitchen area.

21 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 2 of 5 March 10, 2011 The 3rd floor was 2 units with a total of 4 bedrooms. This is the 3rd floor after remodeling. There are now 7 bedrooms. There are 3 more bedrooms and half the common space as before.

22 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 3 of 5 March 10, 2011 The basement and garage was illegally converted to a 6 bedroom unit. A single combined kitchen - living - dining area represents the common area. Update: The applicant was required to return the garage to the interior of the building but still kept 6 bedrooms. (The common area is now slightly larger than the size of a bedroom.) B. Compare this to similar remodel on same street at 2120 Parker Street. The project at 2133 Parker has 13% more living area but 2.4 times the number of bedrooms. Table1. Comparison of 2120 Parker and 2133 Parker Street Remodels PARKER ADDRESS remodel 2133 old LIVING AREA (square feet) BEDROOMS UNITS YEAR COMPLETED 2009??? 1940(?) LOT SIZE PARKING PLACES 4 1 1

23 2133 PARKER STREET LECONTE NEIGHBORHOOD CONCERNS Page 4 of 5 March 10, 2011 C. Architectural Evaluation labels this a Group Living Accommodation. 1. We suggest the following items be examined: The bedrooms are relatively uniform in size-there in no identifiable master bedroom in any unit. There is almost no common storage space in any of the entire units. Virtually all of the closet space is in the bedrooms. There is no common area other than a small combined living room / dining room / kitchen area in any unit. A single parking was provided for residents. 2. An architect, Philip Rossetti, with 40 years of experience (including 15 years of residential practice in Berkeley) wrote the following after examining the plans: I have reviewed the floor plans labeled Attachment #1 from the Zoning Review Board dated 10/28/10 pages 9, 11, and 12 for the property at 2133 Parker Street. The developer has proposed what can only be called a rooming house with shared kitchens and baths. Having walked through the neighborhood many times, the design appears inconsistent with the single family houses, duplexes, and apartment buildings around it. Some buildings in the neighborhood have probably been altered into rooming houses but most likely without planning approval. Rooming houses, especially those with no on-site managers, tend to be ill kept up both inside and outside and can and will bring down the property values of adjacent neighbors which in turn may reduce the value of the city's taxable property base. The drawings do not indicate anything suggesting an on-site manager's unit. It appears that no on-site parking has been provided. Although the city may want to promote use of public transportation rather than personal car usage, the reality is that out of nineteen bedrooms a number of renters will have cars and will end up parking them on the street making guest parking even more onerous than at present. In addition with no site supervision renters will park their cars on the front lawn as is the case with other buildings on the street thus further reducing the image of the neighborhood and property values. I work as a senior designer in an architecture firm which specializes in historic buildings and new buildings in historic settings. I am writing this critique as a private citizen, not as an employee of my firm. Philip Rossetti San Francisco, CA 94110