Page One

‘Floating Cottage’ Owner Dealt Setback by Council

By J. Douglas Allen-Taylor
Friday December 19, 2003

The neighbors of Berkeley’s “floating cottage” won a significant victory Tuesday night when City Council voted 7-0 to deny owner Christina Sun’s appeal, sending the 3045 Shattuck Ave. project back into the hands of the Zoning Adjustment Board (ZAB), and into an uncertain future. 

The ruling means that further renovations on the uncompleted three-story structure at Shattuck Avenue and Essex Street can’t go forward unless and until ZAB approves. The house is presently uninhabitable. 

In the spring and summer of 2002, Berkeley’s Planning Department staff approved two applications by Sun, a Taiwanese immigrant, to convert the two-story house into a three-story residential-commercial building, allowing her to raise the structure several feet into the air in order to build a new commercial space on the ground floor. 

Sun has said she wants to live in the house herself, moving in her elderly mother who currently lives in Taiwan, while she operates a flower shop on the ground floor. 

Neighbors have countered that they believe the property will actually become a rooming house, and shortly after construction began, they began a campaign to halt the project, culminating in a decision by the Zoning Adjustment Board to pull the building permit and issue a stop work order. 

Tuesday’s Council hearing was an appeal from that decision. 

The construction stoppage left the older, previously existing top story of the bungalow sitting above two floors of foundation and plywood structure, giving the appearance of a house hovering high in the air and earned the edifice the nickname “floating cottage.” 

Berkeley attorney William Segesta, who represented Ms. Sun at the hearing, refused to give a statement to the Daily Planet. “Your paper is anti-development,” he said. “If you write anything truthful, they’ll just kill the story. The Daily Planet is a rag that prints only lies and misrepresentations. And you can quote me on that.” 

Segesta was similarly testy and combative during the hearing, alternately complaining about procedural rulings by Mayor Tom Bates and Deputy City Attorney Zack Cowan or jumping to his feet to object to evidence presented by neighbors’ attorney Rena Rickles. 

In his written notice of appeal to City Council, Segesta called the Zoning Adjustment Board’s decision “illegal, draconian, and, indeed, racist. ... The picture painted by ZAB is of a rich, rapacious, totally dishonest, tasteless outsider coming in to build a trashy Hong Kong type building...” 

He expounded on those views before Council, criticizing ZAB for taking the position that his client was “so slippery that there can only be a hearing before ZAB [to determine how Ms. Sun will operate the property] because she’s too crooked to trust.” 

While neighbor complaints have centered around the appearance and appropriateness of the project to the surrounding community, Council’s Tuesday night decision hinged on ZAB’s stated reason for pulling the building permit: an allegation that Sun had lied on her May, 2002 permit application. 

The application, filled out by her architect and signed by Sun, lists the “existing use” of the property as “single family house.” In revoking the permit, ZAB ruled that Sun was actually operating what it called a “group living accommodation” and also decided that the “unusual physical configuration of the proposed modified residential structure” was “in violation of the Zoning Ordinance and thereby called into question [Sun’s] intended future use of the property.” 

Sun told councilmembers that the property was empty when she filled out the permit application, making its designation as a “single family house” correct. Segesta also argued that the legal difference between a “single family house” and a “group living accommodation” was so vague and confusing that Sun’s answer shouldn’t be considered a deliberate misrepresentation. City Council rejected that argument. 

In sending the matter back to ZAB, Council passed over a potential alleged conflict by ZAB chair and announced District 5 City Council candidate Laurie Capitelli. Part of the public record of the Council hearing included an e-mail, presumably to neighbors opposing the project, by opposition leader Robert Lauriston. 

Describing an April 28 meeting between himself, another neighbor, Capitelli, and City Planner Debbie Sanderson, Lauriston wrote: “Sanderson is going to check with the city attorney about whether [the rental of the basement for storage use would constitute a zoning violation]. Capitelli seems to think that the most promising avenue for us to make that argument stick is to get evidence that the basement was rented out for storage to people other than the ones living in the house, since in that case the ground floor was already commercial use.”  

Lauriston’s e-mail goes on to describe two other instances when Capitelli appeared to advise neighbors how to make their case against the project. 

City staff’s summary of the actions leading up to ZAB’s decision indicated that neighbors brought concerns about the project to ZAB during the board’s April 10 and 24 meetings, prior to the decisive April 28 meeting. 

When Sun’s attorney protested before City Council last Tuesday that Capitelli’s actions were improper and, therefore, negated the ZAB decision, Deputy City Attorney Cowan ruled that Capitelli violated no city regulation because no decision on the 3045 Shattuck Ave. property was actually pending before the Zoning Adjustments Board at the time of the final April meeting. 

In a telephone interview on Thursday, Capitelli said Lauriston’s email did not accurately describe the circumstances of the April 28th meeting. Capitelli declined further comment about that meeting, but said he did not believe that any of his actions at that meeting would prevent him from participating in a fair and impartial decision on the 3045 Shattuck Ave. project should it come back to ZAB for any further review.