The thorny issue of “by-right” additions—those up-to-500-square-foot expansions granted homeowners by right of law—was back before the Zoning Adjustments Board Thursday.
The case in point, though never discussed as such, was an appeal of a staff-approved addition to a home at 1737 Grant St.
At issue is whether an addition is by-right or requires a discretionary city administrative use permit and whether or not staff can consider the impacts caused by previous additions.
Principal Planner Debbie Sanderson said that when someone seeks to build an addition, the city considers the cumulative effects of previous additions back to 1992.
The first add-on up to 500 square feet is granted by-right if nothing else has been added since the cut-off date. If a second addition brings the total to more than 500, then city staff has discretion over whether to grant it or not, Sanderson said.
The real sticking point is whether or not staff can consider the cumulative impacts of previous additions on neighboring properties, especially when additions block sunlight or views from neighboring homes and apartments.
“The analysis is not cumulative,” said Sanderson. “We look at effects on light, air and privacy, but we look at detriment from this project alone and not cumulatively. In certain cases even though the additional square footage is small, it could create an excessive shadow impact that blocks out the remaining light to an unreasonable extent. But we have no basis under state law to add cumulative impacts.”
“Could we impose a condition that an addition over a certain amount has to come back to the board?” asked member Dean Metzger.
Sanderson replied that staff has imposed the condition on certain properties, including 2615 Marin Ave., where neighbors have been contesting the impact of a 2,830-square-foot addition on their views.
Zoning Boardmember Bob Allen said he was concerned about that case, when a policy was imposed on a single home. “A city policy should be applied to everyone,” he said.
“If we anticipate that a project has a limit [beyond which it] becomes a detriment, we should include that in the use permit. It should be a case-by-case issue,” said ZAB Chair Andy Katz.
“That gets real messy,” said Allen. “All properties should be treated the same.”
ZAB member Dave Blake raised yet another issue.
“Especially since the City Council is encouraging condos, I don’t know if we’re up to the task when each unit is a separately owned dwelling unit,” he said.
Sanderson said that because they are separate units, “we would consider the expansion of a single unit in the same way.”
Rick Judd, a ZAB member and land use attorney, said he was much more concerned when an addition creates other issues beyond mere square footage.
“I want to know if we can make the cumulative effects less. I’m really looking for history,” he said.
“I hope we don’t spend an excessive amount of time on history,” said member Jesse Anthony. “We have to deal with what’s going on. We can get bogged down every time if we report history. If we get bogged down in that, we will never be able to end a meeting.”
Fortunately, said Sanderson, “the appeal rate on administrative use permits on additions is very, very low.”
ZAB will take up the appeal of the Grant Street addition at their April 28 meeting, along with the latest version of plans for the “Flying Cottage,” the illegally built “popup” at 3045 Shattuck Ave., which transformed a former two-floor residence into a three-story mixed-use building.
Property owner Christina Sun has stated that a builder told her the addition was a by-right project and didn’t require city approval, and only learned that the addition required city approval after construction had angered neighbors.
Previous plans met with rejection by the city’s Design Review Committee, and Sun skipped the panel on her latest plans, which are going directly to ZAB.
A request by developer B. Tony Jalili to add four apartments to his property at 1043-1049 Virginia St. led ZAB members into a lengthy discussion with city staff about how and when the city staff followed city codes in approving setbacks.
According to city code, the project at the corner of San Pablo Avenue and Virginia Street would be required to have greater setback from its nearest neighbor on Virginia, a residentially zoned property with a house.
When commercial and residential zones abut, the setbacks are regulated according to the residential zoning, which requires much greater separation than does commercial zoning.
Sanderson said that while the code requires a minimum 20-foot setback from the property line, staff had recommended just a six-foot setback because Jalili’s property fronts on San Pablo and other nearby buildings also lack the requisite setbacks.
The existing building houses both commercial uses and four residential units. The addition would add four more units in a separate building above an eight-car parking lot.
ZAB member Carrie Sprague said what most amazed her most was a city analysis that holds that Jalili was entitled to a total of 31 residential units on a small lot. Sanderson said the figure was hypothetical.
“A lot of things about this project go above and beyond what’s reasonable,” Sprague said.
Sanderson noted that perhaps of three-quarters of existing Berkeley buildings are in violation of the current city building codes, most because they were built before the current codes were enacted.