Commentary: ZAB Ratifies Right to Pave By ROBERT LAURISTON

Tuesday June 07, 2005

On May 26, the Zoning Adjustments Board ruled that an application to construct a three-story mixed-use building with two apartments over ground-floor commercial space at 3045 Shattuck Ave. (aka the “Flying Cottage”) could be approved by city planning staff on a zoning certificate. This type of staff-level approval requires no public hearing and cannot be appealed by neighbors to ZAB or City Council, as would be the case if ZAB had ruled that one or more use permits were required. 

The proposed remodeling puts the two required off-street parking spaces for the flats in the rear yard, adjacent to the next-door residence. Consequently, ZAB’s decision effectively means that no use permit or public hearing is required to convert required yards to parking lots. 

ZAB’s decision was directly counter to Berkeley’s Zoning Ordinance. Per section 23F.04.010, a required yard must be “unoccupied and unobstructed ... by the presence of a parking space.” For 3045 Shattuck, a 15-foot rear yard is required under section 23E.52.070.D.2. More generally, all properties in commercial districts must, under section 23E.04.050.C, be separated from adjacent residential properties by a 10-foot rear yard and/or five-foot side yards; most residential properties in the city are required to have 15-foot rear yards and five-foot side yards. Parking is generally prohibited in front yards, but allowed in the non-required portion of side and rear yards. 

This by no means constitutes a flat prohibition against parking in yards. By the terms of the Zoning Ordinance, most of these restrictions can be eased or eliminated provided that, after a public hearing, ZAB grants the owner a use permit. Some of the restrictions may be relaxed by planning staff subject to an administrative use permit, which can be appealed to ZAB if any neighbor wants a public hearing on the matter. In either case, ZAB’s decision may be appealed to the City Council. 

Thus the Zoning Ordinance provides a reasonable balance between developers and neighbors. If you want to park right up against your side fence, or at the back of your rear yard, you can apply for a use permit. If your neighbors object, ZAB will weigh the benefit to you and the detriment to your immediate neighbors and the neighborhood in general, and seek a reasonable compromise. If the developer or neighbors think the decision is unreasonable, they can appeal to the City Council; if they don’t like the City Council’s decision, they vote for somebody else in the next election. 

ZAB’s decision eliminates this balance. If your neighbors want to turn their back or side yards into parking lots they are free to do so, and you have nothing to say about it. In plain English, it’s a right to pave. 

Since ZAB’s decision was contrary to the clear and unambiguous text of the law, the most direct remedy as regards both 3045 Shattuck and the general zoning issues would be to file a petition for writ with the Alameda Superior Court. We’d stand a fairly good chance of winning such a suit: as ZAB member and land-use lawyer Richard Judd put it, he wouldn’t want to have to explain that decision to a judge. Unfortunately, it’s just too expensive. Any lawyers want to volunteer? Drop me a note at robert@lauriston.com. (Even without a writ we still have a shot at reining in the project through the design review process.) 

More generally, as regards the right to pave, the solution is cheap and simple: call your City Council representatives. Tell them to impose a moratorium on parking in required yards under zoning certificates until such time as the Zoning Ordinance can be modified as necessary to require public hearings on putting parking spaces in required yards. 


Robert Lauriston is the official representative of neighbors opposed to the 3045 Shattuck project.