South Berkeley residents fighting to stop the construction of a three-story, mixed-use development on Shattuck Avenue scored a victory Tuesday night.
City Council ordered the Planning Department to stop construction of the project pending an investigation into allegations that developer Ching “Christina” Sun made false claims on a building permit application.
Sun’s project involves demolishing the first-story basement area, jacking up the second-story dwelling unit to the third story, rebuilding the first story as a 1,500-square-foot retail space, and adding a new second story, bringing the total size of the residential area to about 3,000 square feet. The stop work order was posted on the property around 8 a.m. Thursday.
Neighbors of the 3045 Shattuck Ave. property have pressured the city for three months to issue a stop-work order on the project and schedule a public hearing. They argued that the development violates design review standards for the neighborhood, illegally seeks to convert a single-family dwelling unit into a group accommodation and doesn’t have the proper amount of rear yard space.
Despite mounting pressure from neighbors—who have spoken out during several City Council meetings, collected more than 150 signatures of residents opposing the project and created a Web site detailing the reasons for their opposition—the city attorney’s office and Planning Department have, until this week, insisted that the city has no grounds to stop the project.
The crucial bit of evidence that seemed to turn things around is a copy of a rental agreement between Daniel Adkins and Sun, which was obtained recently by neighbor Jennifer Elrod. According to the document, Adkins agreed to rent out a room in Sun’s 3045 Shattuck property from August 1, 2001, to July 31, 2002. Adkins, a graduate student who now lives in North Berkeley, told the Berkeley Daily Planet that Sun had rented to three other people in the building under separate leases during the same period.
Project opponents say these revelations prove what they have suspected all along: that Sun gave false information on a May 2002 zoning permit application, in which she wrote that her Shattuck Avenue property was a single-family dwelling unit and would remain one after she completed renovation of the property.
“If the city finds that she falsified information on the application, that is enough to invalidate the application,” said Rena Rickles, a land-use attorney representing the neighbors. “She will have to start the process all over again.”
Neighbors have argued that Sun plans to convert the single-family dwelling unit into a group-living accommodation, which is defined in the zoning ordinance as “a building or portion of a building designed for or accommodating Residential Use by persons not living together as a Household.” The definition of a household, according to the city’s ordinance and established by case law, consists of two or more people living together and sharing the same lease.
Chapter 23E.52.030 of the zoning ordinance states that a group living accommodation in the commercial southside area district, where the project is situated, requires a use permit and public hearing.
At the May 20 City Council meeting, City Attorney Manuela Albuquerque said the city could not stop construction of the project based on these claims alone and said the city could intervene only if Sun attempted to enter into separate leases with tenants, indicating that the structure was not being used as a single-family dwelling unit, which is defined as a building occupied exclusively by one household.
Project opponents say they now have their smoking gun. And City Council, which has anguished over finding a reason to stop a project that the Planning Department has staunchly defended despite the staff errors, technical irregularities and legal ambiguities involved, seemed relieved to have found a way to accommodate the neighbors’ request without risking a lawsuit by the developer. Councilmember Kriss Worthington, whose motion to stop work pending further investigation was passed unanimously by the council, put it this way: “If she lied on her application, it doesn’t matter how many mistakes staff made. We can throw the application out. It solves the whole problem. ”
Sun defended herself in an interview shortly after the stop-work order was posted. She said the building had been rented out to a single family for 10 years before she began renting it out to students. She said that it’s “common practice” in the neighborhood to rent out rooms to four or more tenants separately and added in a faxed memo that “when the house was leased to four people, it [was] shared by a household. The tenants ... shared water and PG&E and cable.”
Sun said she signed a deed restriction that requires that the unit remain a single-family dwelling unit. “That is my plan,” she said, adding that she will move into the house when it’s completed and run a business downstairs.
“I’ve put my life savings into this and now I have contractors that I still have to pay while this is delayed,” she said. “And what will happen to the project if not finished? If it’s abandoned, it will look ugly. They are creating a neighborhood that is filled with fear and accusation. Why don’t they want to work together to build the community? Instead, I have to hear about all these things from a reporter. Why don’t they ever come and talk with me?”
With construction halted, some neighbors now say they are willing to do just that. Robert Lauriston, who lives nearby on Woolsey Street, said he has contacted a mediator that neighborhood groups and developers used to resolve conflict over the 2076 Ashby project. “We are ready to mediate any time she is,” he said. “It will be better for everyone to come to an acceptable compromise.”
The city attorney and Planning Department plan to report to City Council at the June 17 meeting on the group living accommodation issue.