On January 28, Berkeley’s Zoning Adjustments Board approved an application to build a new home at 2707 Rose Street (rendering above). The application was made by Mitchell Kapor, the founder of Lotus Development Corporation, and would involve the demolition of a 2,477 sq ft homeand three outbuildings currently on the property. Below, Gary Parsons explains why he believes the approval should be contested.

The city’s Zoning Adjustments Board (ZAB) recently approved a use permit for 2707 Rose Street, a new, 6,478 sq ft house with an attached3,394 sq. ft. 10-car garage (bringing the developed total to nearly 10,000 square feet).  Concerned neighbors are appealing this decision.  Not much news there, right? Well, not so fast. Let me first state what the pending appeal isn’t:

• It isn’t just another squabble among the hill folk.

• It isn’t just another NIMBY outcry.

• It isn’t just an envious backlash against a superwealthy newcomer.

The appeal of ZAB’s decision is an indictment of a city process that has run amok. For this reason the appeal should be of interest to all Berkeley citizens, as the matter is very much about transparency, due process, and fair treatment under the law… or rather, the lack of it in this instance.

I should make it clear at the outset that I am not one of the authors of the appeal. The matter came to my attention when I heard talk of very uncharacteristic behavior at a ZAB meeting.

As many of us know, the city‘s building approval process can be both long and costly, but is usually fair. Concerned parties are usually given due respect and project reviews are routinely “continued” so that proponents and concerned neighbors can discuss matters and possibly work out a compromise. Sometimes all it takes is a single dissenting voice for the matter to be continued to the following meeting (and this can be quite frustrating for applicants). Nevertheless, the process, rightly, tends to err on the side of caution.

But not so the process for 2707 Rose.  At the ZAB public hearing, 28 letters of concern and several instances of testimony were ignored. The concerned, most of whom had just recently become aware of the project, merely asked whether the Board would continue the matter so that they could become better acquainted with available information. The answer was a resounding, and very atypical “NO.

Reports of this piqued my interest and caused me to look into the ZAB decision and the planning staff report. What I found was truly astonishing.

The staff report for this nearly 10,000 square foot building makes unsupportable statement after unsupportable statement, as if the repetition of such a blatant fictions would somehow turn the bizarre statements into truth.

Besides being a local architect, I happen to serve onthe City of Berkeley’s Landmarks Preservation Commission, so I was flabbergasted to read that staff concludes that there are no locally designated historic resources in the vicinity of 2707 Rose.  A walk of a minute or less puts one at Greenwood Common to the southwest or the LaLoma Park historic district to the southeast. To the north lie properties that appear on the State Historic Resources Inventory. Renown architects Maybeck, Wurster, Esherick, Olson, Schindler, Howard, and more are all represented in this vicinity. Spurred on by this glaring inaccuracy, I soon discovered that a thorough reading of the entire staff report would reveal a similar  pattern of consistent dissembling on issue after issue:

• The building clearly ignores nearly every aspect of the city’s General Plan; staff says that it meets every requirement.

• Staff says that the building fits nicely into its context and then says not to worry: vegetation will hide it.  A weird assemblage, no doubt, but neither part happens to be true.

• The architects say that the building meets the 35 feet maximum height limit (at exactly 35 ft).  Ignoring that the 35 ft is being measured from a newly constructed base that is as much as 20 feet above natural grade, the architect’s drawings clearly show that the maximum height, as staff usually measures it, is either 39 ft or 45 ft (the architect’s drawings are not consistent at this important juncture, though both the site plan and elevation drawings show a building in excess of 35 ft).  Staff states that the building is 35 ft tall.

• The Alquist-Priolo Act was passed so that large residential buildings in established earthquake zones would be held to a higher standard of research and construction than smaller buildings. To be exempt, a building can be no more than two stories and must be of wood-frame construction.  2707 clearly exceeds what anyone would consider to be two stories; below the two stories of living space is what staff calls a ‘third level’ one which could easily be enclosed to make habitable space at a later date; though no floor plan of this ‘third level’ is supplied, the elevation drawings show it to have a floor-to-floor height of 9′, precisely what a habitable floor would need. The expansive glass walls above and thin support columns below strongly suggest that the primary structural  system cannot be of wood.  Nevertheless staff calls it a two-story wood framed building and gives it a free pass at the expense of the owner’s and the public’s safety.  If this building isn’t subject to the requirements of the Act, what house would ever be?

• Staff calls this project ‘green’.  Although the ten car garage may be a good idea since there is no street parking on this narrow street, to call a nearly 10,000 square foot home green (especially when it is built only for a couple to inhabit) is absurd.  That the staff, the owners and the architects indulge in this kind of greenwashing only serves to make a joke out of Berkeley’s environmental aspirations.

• Story poles, which accurately delineate the height and bulk of proposed buildings are required in zone R1-H, the residential zoning which applies to this property. Although not allowed within the ordinance (which states only that story poles are required in zone R1-H, and must be be erected in other zones at staff’s discretion), staff saw fit to waive the story pole requirement for 2707 Rose, leaving the residents of the area with no real way to assess the nature of this extraordinarily large structure. (If constructed, it will be among the top two largest homes of the more than 17,000 in town.) If story poles aren’t appropriate for this house then when would they ever be?

There are many more instances of this type of astounding behavior exhibited in the report. These are discussed in detail in the 15-page appeal and in the many accompanying letters and exhibits (see link below). I don’t necessarily blame the author of the report; I know him and his work and respect both.  In my opinion this wasn’t his work. Once the document is read and understood, it becomes clear why ZAB had to rudely dismiss the concerned neighbors and dispose of the approval as quickly and as silently as possible.

That the staff report is an egregious fiction is one thing, that ZAB rubberstamped the approval of the project without criticizing any aspect of the report is beyond belief and is totally irresponsible.  One board member appeared to recognize some of this and abstained, the rest all signed on. The project proponents cling to this near unanimity as evidence of propriety; I believe that it is a symptom of a much bigger systemic problem.

While some commenters on blogs have complained about the K-Mart aesthetic of the proposed building, that is really out of bounds here (Berkeley has no residential design review requirement); others naively say that the proponents should be left to do as they please, whichis, of course, simplistic. Beyond assuring that the building truly satisfies the city ordinances that all of the rest of us are bound by, the residents of the neighborhood simply want to know what they are getting.  They want the process to run the way that they have had to endure it on their own projects.

No one has said that they don’t want the proponents to build a home, they simply want the city and the proponents to play by the same rules that are imposed on everyone else, whether in the flats or in the hills. They want to be heard and they want a process that is transparent.

The city council should overturn the ZAB approval of this project, demand that a revised staff report be prepared, and graciously allow ZAB to revisit its actions. Additionally, I believe, council and the mayor should initiate an inquiry into how staff and ZAB could turn such a proud city into what resembles a cheap fiefdom.

  • To read the ZAB application for the project, click here. To view drawings associated with the application, click here.
  • To read the appeal to this project, and its many letters and exhibits, please click here.

Gary Earl Parsons is an architect in Berkeley and chairperson of the city’s Landmarks Preservation Commission.

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  1. Gary, I had my experience years ago and yes, I am well familiar with the process… they made us put up story poles, and, in fact, b/c the hearing date kept getting moved back some of them had fallen down by the time the project was finally heard. The poles had been up for 8 MONTHS but the ZAB gave us grief b/c when they want to see the project the week before the hearing, some of them had given way to a big wind/rain storm.

    Do I think this guy should have done it? Yes. But in some respects its like any other legal principle, at some point the “error” is not enough to hold up a whole project. Someone somewhere with time on their hands ends up down at these hearings to complain about this or that.

  2. 10,000 sq ft for 2 people, they should convert the 10 garage spaces for the homeless….that’ll leave them with more than 2000 sq ft per person….
    my hand is stuck in my throat…uuugh.
    i thought my house was too big…
    of all the places to go, they chose Berkeley???

  3. JNG: You are so right. Many parts of the municipal code are written in a murky, hard-to-fathom language, and this passage certainly qualifies. It could have been written to be much more clear. If story poles were always discretionary the passage would just say that: “Story poles shall be erected at the discretion of the project planner” But the fact that it says that they are required in R1-H, and then there is the discretionary clause, tells me that they are indeed required. Staff also says that they are only used for assessing view issues. The ordinance says nothing of the kind, and I have had to erect them for bulk concerns in the past.

    In cities that do have residential design review, the projects are automatically heard in public and anyone from anywhere in the city can take a shot. That is pretty different than having surrounding neighbors sign the drawings to show that they have seen them. Yes our process is onerous, and unfortunately when plans are shown to all of the neighbors (not a bad idea) there is often someone whose idea of their entitlement in the process outstrips the intent. Mr. Kapor shouldn’t be told what kind of house to build, but he should be held responsible for letting the neighborhood know what’s coming, just as others have been before him. He should play by the same rules and receive the same treatment as everyone else. A level playing field is all that the appeal is about, really. Many people didn’t feel as if they were given a sufficient chance to understand the proposal. Had ZAB been a little kinder, a little more reasonable, and a lot more thorough, and had the proponents been more forthcoming, there wouldn’t have been an appeal.

    You sound like a veteran of the process yourself. It can really lead to toxic outcomes where neighbors and project proponents feel terrible for years afterward. It is really difficult to handle the process in such a way that everyone feels good in the end, but I have seen that outcome too. It is always dependent on good information, good listening and accommodation where it can be had; in fact I have seen cases where the building actually improved due to the process of engaging neighbors’ concerns. Sadly that outcome is by far the more rare one.

  4. Gary: as an architect you surely are familiar with the process that makes the home owner go around the neighborhood securing signatures from EVERY living person in adjacent lots to confirm that they have seen proposed plans. AFAIC that’s plenty of residential design review considering everyone feels entitled to throw in their 2c worth on why the plan is not to their satisfaction.

    In terms of “Staff” they live in their own universe where they make up the rules as they go along. Lord forbid you should disagree with their interpretation, they’ll hold you up for months. Here the code allows them some wiggle room, however, b/c it is not entirely clear; it should have said “…or IN OTHER DISTRICTS ONLY as determined necessary by the project planner.

  5. EBGuy: That is the chapter and verse. It seems clear as day that Story Poles are REQUIRED in the H zone (hillside overlay), and in other zones at the discretion of the project planner. Staff interprets the last part as meaning that story poles are always discretionary everywhere, including the H zone. That is simply a flawed reading and the rules have certainly been applied as written to many other projects. Just another part of the puzzle.

    JNG: As for Berkeley having too many rules, you might want to know that Berkeley is one of the few cities around these parts that DOESN’T have residential design review. Imagine that. Maybe the rules are onerous; they certainly have been for many people for many years; but they are the rules that we have and until they change they should apply to everyone equally.

  6. Can anyone cite chapter and verse from the BMC for story pole requirements (I finally gave up). I did find this (which backs up the author’s statement) at:
    Story Poles –
    Required for new buildings and stories in the “H” District, or as determined necessary by the project planner.
    Submit: Story poles must be installed prior to completion of any Mitigated Negative Declaration for the project or at least one month prior to a scheduled public hearing date, which ever occurs first.

  7. Ironic that Kapor is listed as being on the advisory board of the Sunlight Foundation, which espouses “making government transparent & accountable”. Maybe he could arrange for them to meet with the Berkeley ZAB?

  8. I disagree that there should more instead of less regulation of conventional residential building. The current requirements are already way too burdensome for even trivial changes – all that “delay” accomplishes is more cost for the applicant, just so some other malcontent living 300 yards away can complain that his dog will no longer have the same tree to pee on during this morning walk. Its ridiculous.

  9. It is appalling that the city’s laws and ordinances were so blatantly and quickly tossed aside. I agree with G.E. Parsons in his last two paragraphs:

    I don’t say that I don’t want the proponents to build a home, I simply want the city and the proponents to play by the same rules that are imposed on everyone else, whether in the flats or in the hills. I want the builders, neighbors’ and community’s voices to be heard and I would like a process that is transparent.

    “The city council should overturn the ZAB approval of this project, demand that a revised staff report be prepared, and graciously allow ZAB to revisit its actions. Additionally, I believe, council and the mayor should initiate an inquiry into how staff and ZAB could turn such a proud city into what resembles a … fiefdom.”

    I think Parsons’ article needs to be sent to all our Berkeley neighbors and friends. Yes, the city needs money. Let’s see if we can make this work for everyone, including the Mitchell Kapor, but starting this way sure makes all of us residents suspicious, which sets the whole process off to a bad start. Can we push the restart button Mr. Kapor?

  10. Gary Parsons, EBGuy & Tracey Taylor,

    Thanks for focus on, and definition of, story poles. Since story poles are required in R1-H zoning, the obvious question is why was this project approved by both city staff and the ZAB without meeting that requirement?

    City staff informed the ZAB at the 1/28/10 meeting that story poles were “discretionary”, but this is just not so. Only one ZAB member was sufficiently concerned about this to abstain from what would have otherwise been a unanimous and collective swoon by the rest of the ZAB.

    How is it that rebuilding a garage or building a deck requires the kind of lengthy reviews and opportunities for neighborhood comment usually reserved for nuclear power plants in other communities, but replacing a fragile hillside with a chunk of concrete that might make King Mausolus blink in disbelief sails through with hardly a ripple? Curiouser and curiouser.

    If this “home” (and I use this term as loosely as the architects and owners) is built without having to go through the same process the rest of us mere mortals must follow, then I want to know what else is for sale at city hall.

    For all of the jokes that the rest of the country makes about Berkeley, those of us who have lived here for decades (or generations) thought we at least had clean government and transparent processes which applied equally to all, and a city that usually got it right in the end.

    Now I think we all have cause to question these assumptions.

  11. Given that several of the comments about this post revolve around the issue of story poles, I thought it might be useful to clarify what these are. A story pole is a pole cut to the exact specified height from finished floor to ceiling of a proposed building. They are used as a tool to help decision-makers, staff, and the public review development projects.

  12. I still have a hard time getting worked about this. If you do try to move forward with appeals or suits, I would recommend focusing on the story poles. It seems a clear violation of protocol and appears to show favoritism for the project. Once the poles are erected, a lot of your other objections (I’m not necessarily saying they have merit) become clearer.

  13. EBGuy: Thanks; my bad re: Alquist. I was relying on memory, and though the original language did not include steel framed buildings, subsequent revisions do (though some localities seem not to have adopted the revisions). The two-story requirement is still there though, and it is tough to argue that the 2707 house is a two story structure. The staff report calls 2707 a two-story wood-framed structure, which I think is wrong on both counts. The building should still be under the requirements of the Act.

    You are right about what would be the Mother of all story poles, but that’s because this is one Mother of a house! From natural grade the story poles will have to rise about 55 feet at the northwest corner. When story poles are installed conditions should be attached that require them to be verified by a licensed surveyor, and since the story pole components are typically quite small they should be painted a bright color to help the neighbors see them (some of the neighbors are elderly).

  14. To EBGuy: This is only a two story structure if you ignore the 20′ high foundation and the bottom story. In the real world, it is a five story building. Also, if a mere story pole would potentially endanger traffic on Shasta, what do you think an entire “house” would do in that exact same location on this fragile hillside?

    To JJohanson: I agree with you that the ZAB is not doing its job, but it is a slippery slope to flout the zoning and bulding code for the prospect of a few tax dollars (which are collected by the county, not the city). Surely we are not so desperate that we have to kowtow to those who must have their own private Xanadu, no matter what it costs the surrounding community.

  15. The more we learn about this project, the more troubling it becomes.

    This is a scathing indictment of both the owners and their representatives, who have been less than open and honest about the scope of their project, and of city staff, who have inexplicably turned a blind eye to obvious contradictions and misrepresentations in their plans.

    To say nothing of the ZAB who rubber stamped this massive “home” (and conference center/foundation/fundraising office) without continuing it for even one meeting (despite the outpouring of objections from community), or considering the addition of even a single condition which might address the concerns of neighbors.

    It is significant that the chair of City’s Landmark Preservation Commission should find this so unusual and so objectionable. The fact that both the city staff and the ZAB have ignored the REQUIREMENT for story poles (which is mandatory in this district, NOT discretionary) should give us all pause about how the wheels (and palms) are being greased to force this project through.

    How many other requirements are being ignored, how much more is the zoning and building code being “interpreted,” and how many other regulations have been twisted and contorted to favor this ill conceived development? This is not a rhetorical question, it is clear that something is very wrong with both this project and with the system that has allowed it to get this far, over the objections of so many.

  16. Regarding Alquist-Priolo, the language I found also exempts steel framed homes: [Exceptions] A single-family wood-frame or steel-frame dwelling not exceeding two stories when that dwelling is not part of a development of four or more dwellings.
    As far as story poles — well, I would pay good money to see one for the NW corner of the building. You can see why the staff granted the (illegal?) exemption; I’m not sure you could construct one without endangering those traveling on the road below.

  17. I think ZAB’s disassociation from the project has everything to do with the prospects for taxing such a property in a town suffering from revenue losses and virtually bereft of additional space on which to build. On the parcel itself, for instance, Kapor’s property is going to pay out real money on BSEP’s behalf, on land that is virtually invisible and inaccessible to the rest of the city.

    Kapor can choose to live in any city, region, or country he wants to, and he has chosen Berkeley, CA, at a time when Berkeley and California are in a world of hurt. Time is money, and in this situation, Berkeley has surpluses in neither. I think ZAB has absented itself from the traditional oversight process because residential construction of this type in the city limits is a once-a-decade proposition, and comes at a time when the city’s finances are in the ditch.