Nigel’s analysis of zoning is incorrect with PHA letter and Staff report to the Planning Commission added

From the November 10, 2010 staff report Planning Commission:

(Please note:  the typos are mine.  I do not have the software to copy the text of pdf files.  )


Recommend to the City Council that no changes be made to the May 2010 adopted ESR Zoning Regulations.


On May 4, 2010 the City Council held second reading and adopted modifications to the Zoning Regulations for the ESR District recommended by the Planning Commission, with some minor modifications related to resident concerns (see further discussion below and Section 23D.24, ESR Zoning Ordinance provisions, Attachment 2).

At the May 4 meeting, two community members raised concerns about the proposed definition in the ordinance of “sleeping area” and subsequently submitted the attached May 26,2010 letter (from Nigel Guest and Gene Bernardi) and a subsequent letter on October 13, 2010.  In addition to repeating some of the earlier concerns, the October 13, 2010 recommends other changes that would make it easier to rent rooms than permitted under the previous ordinance or the recently adopted ordiance.

The underlying intent of the ESR modifications is to limit as much as possible the expansion of existing structures in a manner could increase the number of people living on the hill, especially the addition of rooms that can be used as bedrooms.  Staff did so by establishing stringent parking requirements and a requirement for approval of an Administrative Use Permit (AUP) to create a “bedroom”, broadly defined as any area that can be used for sleeping.  Staff used this broad definition to discourage people from labeling additions as “libraries,” “media rooms,” “offices,” etc., in order to avoid the parking and AUP requirement.  The two objecting community members felt that having a unique definitiom of “bedroom” solely for Panoramic Hill would make it more difficult to interpret and apply Zoning Ordinance and was inappropriate.

The City Councio adopted the ESR revisions without change from the final Staff recommendation.  However, Council members also noted a concern with adopting unusual provisions in the Zoning Ordinance that would make it an even more complicated document to implement and requested that the Planning Commission further consider this issue.


As discussed in previous reports to the Planning Commission, Staff initiated and carried forward changes to the ESR District to address the extremetly dangerous conditions on the Hill.  Because of substandard access, steep slopes, inadequate water pressure and proximity to the Hayward Fault and vegetated wildlands, the neighborhood is exceptionally vulnerable to severe damage or ddestruction from fire and earthquake, emergency access and eegresson substandard road will be highly constrained.  People seeking to leave a dangerous condition would conflict with emergency personnel trying to addres it or trying to reach others who need help to leave.  Even under normal conditions, vehicles responding to medical emergencies have been impeded by commercial vehicles, trash collectiontrucks and illegally parked vehicles.  Existing sewer and drainage intrastructure is also substandard.

As noted in the Council report of April 24, 2010:

From the beginning of the process to modify the ordinance, staff has been clear of our approach: to adopt strict standards that curtail development on Panoramic hill so that as few additional people as possible are placed at risk until the underlying infrastructure issues are addressed.

In order to accomplish this goal, Staff proposed stringent permit and parking requirements on adding space that could be used as bedrooms.  Staff anticipated applicatnts seeking to avoid these requirements by labeling additions not as bedrooms, such as dens, libraries, etc.  To address this issue, Staff proposed a very broad defition of bedroom as any space that can be used for “sleeping.”  As noted in a January 2010 City Council report, the then proposed (now adopted ) regulations:

Lowers the threshold for discretionary review of residential additions and requires an AUP for any alteration to create additional rooms that can be used for sleeping.  Staff is recommending “room used for sleeping” rather than the more typical “bedroom.” Because Staff is proposing strit enforcement of parking requirements for sleeping rooms, if the more typical “bedroom ” were used in the ordinance, it is very likely that we would see a signifiant increase in the number of people applying to add a “den,” “office,” “library” or something similar, although the room will be used as a bedroom.  There is no perfect defintion that will necessarily avoid the problem, but the intent is clear, and the broad definition will close much of this typical loophole.

When we met in February, 2010 with representatives of the Panoramic Hill Neighborhood Association (not includingthe two parties currently objecting to the ordinance), they requested some additional flexibility for converting existing space in a bedroom when family circumstances changed,  without the need to meet parking requirements.  To address this concern, Staff proposed to the City Council a revision to the draft ordinance seen by the Planning Commision that would allow for existing property owners to modify existing living space to add nor more than one bedroom without triggering additional parking requirements.  Although Staff had discomfort with allowing any changes to the ordinance recommended by the Planning Commission that could increase the number of bedrooms, Staff felt the change requested by the Association would lead to relatively few new bedrooms, and allowing for some reasonable flexibility.  The Council adopted this change as part of the ESR modifications.

As noted earlier, at the second reading ot the ordinance, two people raised an additional issue in regard to the broad defintion of bedroom.  Although the Council adopted the ordinance as proposed, they referred this issue back to the Planning Commission, noting a concern with adding to an already overly-specific difficult to use Zoning Ordinance.

On May 27, 2010 Staff (Dan Marks and Vivian Kahn) met with Mr. Nigel Guest and Ms. Gene Bernardi to discuss the concerns they had raised at the Council.   Their letter of May 26, 2010 setting forth those concerns is attached.  mr. Guest nd Ms,. Bernardi noted the following issues:

The definition of “bedroom” appears to be unique and arbitrary.  This is a word that is in extremely common use, and is defined in Webster’s Dictionary as a rom furnished with a bed and intended primarily for sleeping.

New parking requirements should be required for new additions only and should not apply to the existing structure which is “grandfathered in.”

In their subsequent October 13, 2010 letter, Mr. Guest and Ms. Bernardi amplify their original concerns and recommend further changes that would allow renting of rooms more easily than was permitted under the former or current ordinance.  Please note that to the best of our knowledge, these changes in permitted use were not referred by the City Council.

Mr. Guest and Ms. Bernardi have also recommended several other changes to the ordinance, which they believe would clarify the ordinance or address what they consider to be inconsistencies or unintended consequences.

As staff indicated to Mr. Guest and Ms. Bernardi at the end of our meeting in May, we cannot recommend changes to the ordinance, because, in Staff’s view, their requested changes would not be consistent with the intent.  Although Staff certainly appreciates the need to not add further complexity to the City’s Zoning Ordinance, we believe that in this unusual instance – and for this unique area of the City – it is warrented.Although the adopted definition of “sleeping space” is not perfect, it is similar to definitions used in some other cities, and is consistent with language in the Building Code that establishes minimum standards (size, exiting, etc.) for areas that can be used for sleeping.  It allows Staff much greater discretion to apply the “duck test” for additions tha, while labeled one thing, can clearly be used for another purpose.

Similarly, in regard to the second point above, the intent of the ordinance is specifically to require that any propery owner requesting an addition of a new bedroom be required to meet the underlying parking requirement for the district for the structure – and not grandfather in existing substandard parking conditions.  Although Berkeley tends to be be more lenient than many jurisdictions in allowing modifications to no-conforming structures, it is common practice in other communities to require non-conforming buildings to meet all current standards when a significant addition is approved.  We fully recognize that in Panoramic Hill, meeting the underlying parking requirements would be very difficult for most structures.  The requirement is intentional: it establishes a high hurdle for thosw wishing to add “sleeping rooms.”

In response to the Octobe 13 letter, staff offers the following.

Comment 1.2: “Moving an interior wall to cerate a bedroom would require a Use Permit.”

Response: An alteration to create a bedroom from exiwsting floor area will require approval of an AUP.  The division of existing habitable space to create one bedroom will not, however, require additional parking as long as the proeprty is in a single family use.

Comment 1.3:(1): Other jurisdictions’ ordinances suport the need to modify the ESR definition of sleeping room.

Response: in staff’s view, the ordinances of other jurisdictions simply confirm that they are attempting to address the same problem that City of Berkeley staff identified: calling rooms different names to avoid requirements (usually parking requirements).

Comment: All 1.3 (2): All dining rooms are bedrooms.

Response:  Not all dining rooms are sleeping spaces.  Sleeping spaces must have exiting (windows) and meet other requirements under the California Building Code.  Staff believes it is highly unlikely that many homes in the District will be adding dining rooms – and, if the do, Staff believes they can be designed in such as manner as to not be defined as bedrooms (open to the living room or kitchen would be one means).  As noted avove, there is no perfect definition and Staff will have to exercise some discretion in making determinations.

Comment 2.1: Modify requirements related to non-resident employees or consumers.

Response: The provision barring customer visits has been in the ESR regulations for about 20 years.  The City Councio did not refer the requirements related to home occupations for Planning Commission review.

Comment 2.3: Modify Uses Permitted regarding rental of rooms with a Use Permit.

Response: this was not referred by the City Council.  The ESR regulations continue to allow rental of a dwelling unit to a single household and to require approval of a Use Permit to allow rental of rooms to additional households or individuals.

Comment 2.3: Modify CEQA finding

Response: Alterations to create bedrooms and residential additions that are the lesser of 10% of the lot area or 20 sauare feet are categorically exempt from enfironmental review but, as CEQA provides, may require environmental review under certain circumstances.

As noted above, Mr. Guest and Ms. Bernardi suggest other changes that they believe would clarify the ordiannce.  Staff disagrees.  Ordinance language is always subject to reasonable interpretation and applicaiton, and staff believes that in each instance, the intent is clear and the ordinance language is sufficiently clear to relay that intent.  In addition, Staff is preparing a “frequently asked quesions” information sheet for the ESR zoning to be made available to staff and the public.  Staff also believes that some of the changes recommended by Mr. Guest and Ms. Bernardi are inconsistent with the intent of the ordinance.

Staff is recommending that the Planning Commission recommend to the Council that it make no further changes to the ESR ordinance.”

I, the author of what is below, am not nearly as polite as Dan Marks.   It is my take on what happened.  That Berkeley Staff has finally recognized the problems of Panoramic Hill and is making needed changes is terrific.  It means we do not have to continually try to educate the city about our problems.  We should be helping, not hindering their attempts to make this neighborhood safer.  I began trying in 1986.  My scientist mother, Della Reid, M.S. began trying when the PHA was formed in 1948.  The next necessary project is educating Oakland.

Nigel Guest clearly does not understand zoning. Most of the properties on Panoramic hill have been non-conforming from the time the Environmental Saftey – Residential zoning came into effect in the 1970s. The zoning is not retroactive. That means that no property owner has to make their non-conforming house, duplex, tri-plex or apartment building conform with the changes unless that owner makes specific changes. Planning Director Dan Marks and consultant planner Vivian Kahn were very clear as to the reasons for the ehanced defintion of bedroom in the new Environmental Safety – Residential regulations which is now the zoning law for the Berkeley section of Panoramic Hill. It is to not increase the number of people who are residing in this dangerous neighborhood that has only one access road. The Panoramic Hill Association wrote its approval of the changes before the first reading of the revised ES-R ordinance. It is listed on Berkeley council website for April 27, 2010, Item 20: Panoramic Hill (ESR) Zoning Ordinance Revision Michael Kelly, on behalf of the Panoramic Hill Association  (This  letter on PHA letterhead, dated the day of the council hearing, April 27, 2010, reads: ” Dear Mayor Bates and City Council, I am writing on behalf of the Panoramic Hill Association in support of the proposed revisionsto the Environmental Safety Residential (ESR) ordinance.  Our Board of Directors voted unanimously in favor of these revisions at our Board meeting on April 20, 2010.  Although the ordinance still contains some elements which are of concern to some residents, the revisions represent a positive step forward in addressing the safety and development pressures in this neighborhood.  We thank you and the planning staff for all the work that has been done on this issue.”   Sincerely, Michael Kelly, President, PHA)

Nigel Guest has been renting rooms in his house illegally and he needs to apply for a permit. He is trying to rally people to start screaming to change the changes that now have been years in the making so that he does not have to do what he should have done years ago.

Nigel Guest also misunderstood the discussion at the Planning Commission about restricting parking permits. The Planning Commission can do nothing except ask the council to refer the matter to the Transportation Commission.  But the issue in front of the Planning Commission is ONLY the definition of bedroom.

The issue that the city council referred to the Planning Commission was only the enhanced defintion of bedroom. And the Planning Commissioners now have the opportunity to discuss the matter with the council members who appointed them.

Nigel will try to make sure the issue never ever goes away and he will quote all the British figures he can to support his position.

There is an allegation below that I have included the wrong letter from  the PHA, but that assertion is false.

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6 Responses to Nigel’s analysis of zoning is incorrect with PHA letter and Staff report to the Planning Commission added

  1. Editor says:

    Correction: It is my understanding that the PHA input (in the City Council April 27th PDF) was written to point out areas of concern PHA had.

    • Ann Slaby says:

      PHA Board unanimously approved the changes on April 20, 2010. The PHA letter is in the city record on line for the meeting of April 27, 2010. You may not like what I wrote, but none of it is false.

    • Here is the letter I was referring to:

      This letter, dated April 27, 2010 to the Office of the City Manager outlines the concerns that the Panoramic Hill Association had:

      At the Council meeting of January 24, 2010 when the ordinance was initially presented for adoption, the item was continued to allow staff an opportunity to meet with residents to address concerns. Staff met with representatives of the Panoramic Hill Association (PHA) on April 9, 2010. At that meeting, the representatives identified three key issues:
      * the proposed revised parking requirements would increase the number of cars parked on the hill, thereby increasing traffic and exacerbating existing poor conditions;
      * the proposed restrictions on additions and modifications to homes would unnecessarily constrain existing homeowners from meeting their needs;
      * the Specific Plan should consider the overall circulation needs of Panoramic Hill, and not just emergency access/egress.

      • Ann Slaby says:

        Alice, What is important is not the issues the PHA brought to the attention of the Berkeley Planning Department. They brought up a lot of issues. Nor is it important that other Panoramic hill resident brought up issues.

        What is important is that the Berkeley City council referred to the Planning Commision ONLY the issue of the defintion of bedroom that is in the now current Environmental -Safety Residential zoning.

        The Planning Commission staff report is excellent. I typed it in. I hope you read it and become a supporter of the new zoning.

        Thank you.

  2. Ann Slaby says:

    Alice, Below is a copy of the letter submitted to the Berkeley city council for their April 27, 2010 meeting. Indeed, the letter supports the ES-R regulation changes as I correctly stated in what I wrote.

    “Dear Mayor Bates and City Council, I am writing on behalf of the Panoramic Hill Association in support of the proposed revisionsto the Environmental Safety Residential (ESR) ordinance. Our Board of Directors voted unanimously in favor of these revisions at our Board meeting on April 20, 2010. Although the ordinance still contains some elements which are of concern to some residents, the revisions represent a positive step forward in addressing the safety and development pressures in this neighborhood. We thank you and the planning staff for all the work that has been done on this issue. Sincerely, Michael Kelly, President, PHA”

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