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Property Owners Feud Over Ashby Apartment Development

By Richard Brenneman
Friday April 07, 2006

Day-glo netting mounted atop galvanized steel pipes along the property line separating a popular Ashby Avenue discount gas station from an unfinished apartment building proves yet again that good fences don’t make good neighbors. 

The netting—along with the tarps covering the side of the three-story apartment building—testifies to a feud between two men, both immigrants and engineers, that continues without resolution. To complete construction, the owner of the apartment building must have access from the gas station lot, permission that the station owner has refused to grant. 

For Athan Magannas, a native of Athens, the barrier is all that prevents him from completing the building at 2076 Ashby that has cost him over a million dollars to date. 

For Shahzad Khan, a native of Pakistan, the fence is a means of protesting what he calls both a violation of city ordinances and a menace to public safety. 

Getting permission to build the structure with its 11 apartments and ground-floor commercial space, wasn’t an easy task, said Magannas. 

“About five years ago, I started going around the neighborhood and telling people about my plans to replace a burned out apartment building on the site,” said Magannas. 

His original plans called for a four-story building with parking on the ground floor, but after numerous meetings with neighbors and city officials, the Zoning Adjustments Board finally issued permits for a design for a building with three floors and no parking by architect Marcy Wong. 

ZAB member Dave Blake strongly opposed the permit, partly on the grounds of the lack of parking, but the proposal was supported by Planning Director Dan Marks, who said that the close proximity of bus and BART transit made the lack of parking permissible. 

“It was one of the neighbors who came up with the idea,” said Robert Lauriston, a neighborhood activist who often takes a leading role in land use issues. 

“There was an eight-unit apartment on the site previously that had burned down, and it had no parking” he said. “Given the crazy traffic on Ashby, it seemed reasonable,” he said. 

But Khan, a mechanical engineer born in Pakistan, says the issue is the law. 

Pointing to photocopies of the city’s zoning ordinance, he argues, “How can they build something without the yards it says they have to have? They violated every single one of their own guidelines.” 

How also can they build apartments without parking and so close to the openings of his underground gasoline storage tanks, Khan asks. 

Khan has been operating the gas station at 3000 Shattuck Ave. since 1996, and has owned the property since March, 2003. 

The gas station owner also said that Magannas’s building extends onto his own property by a foot—something Magannas denies, pointing to the surveyor’s marks scratched into the concrete at what he says is the property boundary. 

Magannas also cites the certified surveyed he conducted prior to building and which he said he filed with the city. 

Blake said he doesn’t understand why Magannas is being blocked from building his project. “Once something is approved, you have to provide reasonable access,” he said. 

Magannas said he appealed to Max Anderson, the city councilperson who represents the district, but Anderson said there’s not much he can do. 

“I talked to both sides, and it’s actually beyond the point where the city can do much. Each side claims it has issues,” Anderson said. “I don’t know where they can go from here. 

“Some of the stuff is in dispute. The boundary line is in dispute, and there’s some dispute about whether it [Magannas’s building] conforms to setbacks and side space. It’s kind of murky right now, and that’s about all I know,” said Anderson. 

But there’s no doubt that the city issued Magannas a building permit, and work is continuing on the building—though not on the eastern wall, which is covered by tarps on Magannas’s side and blocked by the pipe-suspended webbing and a parked truck on Khan’s side. 

“This is completely corrupt,” said Khan, who also makes darker allegations that would be libelous for a reporter to put into print. 

Brad Rudolph, the city building inspector who’s been overseeing the project, said the problem isn’t his concern. “It’s between the two of them. They’re working it out,” he said. 

“It’s a private matter,” said Principal Planner Debra Sanderson, who is assigned to work with ZAB. “It’s not a city responsibility.” 

Berkeley City Attorney Manuela Albuquerque has refused to get involved in the issued, writing to Magannas on Dec. 13, that she did not “believe it appropriate for the city to take a side in this private matter,” and faulting Magannas for failing “to plan for the development of this project. He cannot expect the city to intervene on his behalf when it turns out he did not do so.” 

Meanwhile, work has continued at Magannas’s building—although not on that all important eastern wall, and the developer said he’s ready to take the final step, which involves court and lawyers. 


Fire threat? 

Khan said Magannas’s building poses one threat so extreme that the only solution is for the city to demolish Magannas’s buildings. 

“Trucks park right beside the building twice a day when they come to deliver gas,” said the station owner. “If someone was in the apartment and threw a cigarette out the window, it could create a spectacular fire that people would remember for centuries to come. This is a killer. It could kill the whole city of Berkeley.” 

Not so, said Deputy Fire Chief David P. Orth, “in my professional opinion.” 

First, he said, gasoline delivery trucks are required to capture the vapors given off when tanks are filled. 

Second, and more important, “gasoline requires an open flame to ignite, not a cigarette.” 

And, despite what Khan said, Magannas’s building does meet the fire code, Orth said, though “he really pushed the envelope” when it came to planning escape access.  

And the building it replaced really did burn down because of a gasoline fire almost 20 years ago—but only because the arsonist who set it was dumping out gas near a heater with a pilot flame that ignited the vapors. 

“It blew him right out the window. He landed on the roof of a car, brushed out the flames and ran away,” said Orth, who was a lieutenant at the time and almost stumbled over part of the torch’s stash of gas cans. 

The owner, it seems, was locked in a bitter dispute with tenants, and had called them out for a make-up brunch one Sunday. A half hour later the arsonist snuck inside to do his dirty deed, only to become an inadvertent victim of his own “insurance lightning.” 

As for Magannas, Orth agreed with Albuquerque that better planning might have avoided the problems he now faces. 

“As it is, he may have to pay the guy something,” said Orth..