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The months-long battle over the fate of the property development at 3045 Shattuck Avenue may be resolved July 24, when the Zoning Adjustment Board is scheduled to hear arguments from owner Christina Sun and the property’s neighbors. 

The board decided Thursday to proceed with a public hearing, voting to hear more evidence before deciding on whether or not to declare the project a public nuisance and force Sun to demolish the unit or scale down the three-story, mixed-use project. 

The controversy has pitted Sun against her neighbors, who say the size and design of the proposed building, which is located in a commercial area in South Berkeley, conflicts with the character of the nearby residentially zoned neighborhood. They have argued that the city has grounds to stop the project and call for a public hearing, claiming that Sun intends to convert a two-story single-family dwelling unit into a group-living accommodation, a change of use that would require a use permit and public hearing. 

Following repeated complaints from neighbors about Sun’s intended use — and culminating in testimony from a former tenant of Sun that suggested the residence was used as a group living accommodation in the past — the planning department issued a stop work order on the project, stating that Sun provided “incomplete information” on a building permit application. 

On that application, submitted to the planning department in March, Sun stated that the building was a single-family residence and would remain so after the proposed renovations were made. Neighbors have insisted that the size and design of the proposed buildings indicate that she in fact intends to rent out the rooms to separate individuals, which they say would qualify it as a group-living accommodation. 

Unable to resolve the issue, the Planning Department referred the matter to the Zoning Adjustment Board, which will decide if Sun violated the zoning code by providing false information on her application regarding the question of use. If the board finds that she did, then it can declare the property a public nuisance and order Sun to start from scratch, which means that she will have to undergo a public hearing. 

Although neighbors have tried for about five months to get the city to call a public hearing based on other factors — including rear yard space, height, size and parking — the board is only being asked to decide whether or not the unit was used as a group-living accommodation or a single-family dwelling unit at the time she applied for the building permit.  

Neighbors will likely present evidence that former tenants signed separate lease agreements and paid for their utilities and other expenses separately. Their evidence includes statements made by a former tenant, who testified before City Council last month and told city staff members that he signed a separate lease and paid for his utilities apart from other tenants in the building. Project opponents will also try to show that Sun is proposing to use the building as a group-living accommodation in the future, pointing to her plan to build six bedrooms and several additional rooms that can be converted into bedrooms. They also say the plans indicate that there is no master bedroom and that the rooms can be easily converted into kitchens, two of many factors in the plans that they say suggests use as a group-living accommodation. 

Rena Rickles, the neighbors’ attorney, said in a recent interview that the board should have no problem deciding on the issue. “The floor plans make it clear to anybody that this could be nothing other than some kind of group living/border house/multiple dwelling unit,” she said.  

But Sun said that she was never told her floor plans were a problem when she submitted the floor plans to get her permit. “It is unfair for them to change their minds after the permit has already been issued, when they initially said it was okay,” she said. 

Sun said that she signed a deed restriction to ensure that the building would only be used a single family dwelling unit. Sun also said she will present statements from two other tenants proving that the building was used by a household, indicating that the tenants shared water, power and house phone bills and shared household items, and therefore qualified as a single family dwelling unit. 

Sun said she is “terrified” by the prospect of having to start the process all over again, and said if the city forces her to scale down her project to two stories, she would not be able to afford it. 

“It would cost a half a million dollars,” she said, adding that she has already spent about $500,000 of the total $700,000 cost of the project. Sun, who said she mortgaged her home on Carleton Street to pay for the 3045 Shattuck development, said she believes her opponents will try to stall the project long enough to make it financially unfeasible for her to continue. 

“They are trying to bankrupt me by stalling this as long as possible,” she said. “I think at the next hearing they will bring up all these other issues and try and convince the board to continue the hearing. But then the board goes on recess until the end of August. It might not even decide until October.” 

By that time, Sun said, she will be financially broke. 

The zoning ordinance defines a group-living accommodation as a building that is designed for accommodating residential use by persons not living together as a household. A household is defined as an entity made up of one or more persons and usually characterized by those maintaining the same rental agreement and sharing living expenses, such as rent, food costs, and utilities. By contrast, a single-family dwelling unit is defined as that which is occupied by one household, no matter how many individuals are within that household.