While Berkeley City Council District 2 representative Daryl Moore says his aide, Ryan Lau, made a mistake in replacing an old funky garage with a larger living structure without obtaining permits or zoning approval, it appears the mistake is much bigger, more expensive and more problematic than simply paying a higher fee. Lau was ordered to cease construction on Monday, March 15, 2010, by Building Inspector Greg Heidenreich.
Berkeley’s building code specifically sets out ‘Development Standards for Accessory Dwelling Units’ that appear to prohibitively restrict the type of development Lau has already built. Deputy Planning Director Wendy Cosin was not optimistic that the city would be able to approve Lau’s project without a variance, and in the city of Berkeley obtaining a variance is nearly impossible she acknowledged.
The first obstacle to issuing a permit is the size of Lau’s ‘Accessory Dwelling Unit. The estimated size of Lau’s nearly finished project is 432 square feet. According to the code (Section 23D.16.040), such structures are restricted to 300 square feet or less. The specific language of the code states: “No more than 25% of the gross floor area of the main dwelling in existence prior to the construction of the Accessory Dwelling Unit,” with an exemption that allows a building up to 300 square foot if the main house is smaller than 1,200 square feet. Lau’s main dwelling is less than 1,200 square feet but the building he has nearly completed is almost 44% over the upper limit.
Additionally the code specifically excludes building less than four feet from the property line. Apparently Lau has built the entire structure on the side property line
“In no case can zoning approve this if the setbacks are less than four feet,” said Deputy Director Cosin. “If he doesn’t meet the standards he’ll need a variance and it is very, very difficult to get a variance.”
Ironically, any person seeking a variance from local building codes has to get approval from the Zoning Adjustment Board. Ryan Lau is Councilman Darryl Moore’s appointee to that board.
While one local reporter stated that in attempting to resolve this issue promptly Berkeley’s Planning Department was expediting Lau’s permit, Cosin insisted that wasn’t the case.
“We’re handling this the same way we would handle any other violation,” Cosin said.
Any other treatment would be preferential and ethically improper. It is possible for Lau to pay an extra fee to expedite the permit process, which is available to any applicant, but Cosin said that Lau is “not at the building permit stage.”
As of Wednesday, March 17, 2010, Lau had not applied for zoning clearance, which he must do before he can turn in a building permit application.
If Lau does not get a variance, the council aide would have to tear the structure down, Cosin said.
While neither Lau, nor District One Councilman Darryl Moore, nor Mayor Tom Bates, nor City Manager Phil Kamlarz, nor Deputy City Manager Christine Daniel (formerly of the city attorney’s office) returned this reporter’s phone calls on Wednesday, other city staff expressed concern about the underlying issues this violation has exposed.
“I’m confused about how that can be allowed without him resigning his aide position. He’s a city employee. Seems like a conflict of interest,” said one Berkeley staffer by email. That person requested I not use their name. “In light of your discovery, it seems the only reasonable action is to remove him from ZAB (credibility shot and not fit to rule on similar situations) and he should be fired as an employee (violated the oath we take to uphold all rules and regulations).”
Another city employee, who also did not offer his name, suggested Berkeley City Auditor Anne-Marie Hogan’s office should investigate Lau’s ethical lapses.
Hogan said all city staff except the mayor, councilmembers, their staff and their appointees are required to sign and abide by a code of ethical standards crafted by her office and the office of the City Manager that specifically requires they adhere to the laws and regulations of the city. The city manager administratively adopted that code of ethical standards for all city staff, but compliance with that code of ethics is not enforceable on the Mayor, the city council or their staff and appointees.
The mayor and council members, as elected legislative officers, do not report to the city manager’s office, nor do their aides or commission appointees, Hogan said.
“City council staff are hired and fired only by the City Council,” Hogan said. “They are ‘at-will’ employees.”
Similarly commission appointees only refer matters back to the city council, they actually don’t have any ‘authority,’ Hogan said. The mayor and city council must approve all commission actions.
“It’s never a bad idea to adopt a code of ethics,” Hogan said.
Regarding Lau’s lapses and his continued presence on the Zoning Adjustment Board, neither Cosin nor Hogan was willing to comment.
Councilmember Linda Maio (her aide is Nicole Drake, Lau’s tenant and partner) was more forthcoming.
“No,”Maio responded bluntly when asked if Lau should remain on the ZAB. “I think not!”