Columns

One of the things I learned in kindergarten was to get a pass to go to the bathroom. The teacher kept the keys on wooden sticks marked girls or boys, our ticket to legally walk the halls while classes were in session.

A crucial lesson we should have learned early in school is that you need permission for privileged behavior. In grown-up land that includes building additions to a house or converting a garage to a dwelling unit or even building a whole house in the backyard. And yet people do these and many other extraordinary things without permits.

There must be an epidemic of illegal building in Berkeley, an outbreak in West Berkeley, or maybe I just happened to discover several cases in the last few weeks by serendipity. But after the death of six students last year due to faulty construction, the idea that anybody would even consider building a place for human habitation without the proper permits and inspections should make our skins crawl.

What’s going on, why, and how can we stop illegal construction? Without looking into the bigger picture City wide, I can point to three unpermitted local projects, two under investigation and one that went to ZAB. 

The first is a backyard two-story house on Eighth Street near Rosa Parks School, which came to our attention on Next Door West Berkeley when a neighbor asked what to do. Several neighbors pitched in with advice, and the outcome was a stop work order from a City inspector. 

A few days later a contractor who was directing a third story addition on a Tenth Street house admitted to a neighbor that the work was not permitted. This led to a complaint and a stop work order. Inspectors in the Building and Safety Division of the Planning and Development Department are investigating both of these violations. 

The inspectors take their work seriously, but after the missing applications are submitted to the planners, an attempt is made to legitimize the work to date. The permit fees double as a fine, but the scofflaws must see this as a slap on the hand compared to having deposited facts on the ground. They have to endure some delay, but not the dismantling of the illegal construction. It would be interesting to find out if the planning department has ever condemned any unpermitted structures. 

An illegal building addition at 840 Page Street is one indication of the Planning Department’s current policy that anything goes, because the staff report reaches depths of disingenuousness in recommending approval of this substandard project, heard by the Zoning Adjustment Board on July 13. The staff report fails to fully describe the nature and extent of the illegal work that dates back to November 2013, when a permit to remove and replace the gabled roof was approved.  

The owner not only removed the roof, but also raised the walls without permission. Then the project stalled for lack of funds and was left in an ugly unfinished state. The neighbors complained, which eventually brought the matter to ZAB, who continued the hearing to allow the applicant to change the roof design. By the way, the County use code for this parcel is 2300: three units of lesser quality, which could mean that the assessor considered the original construction to be inferior. 

It could also indicate that the parking is insufficient, as there is no off-street parking for three units. The driveway is shared with the house next door, and the garage has been converted to an office and sometimes used as Airbnb, also illegally. A condition of approval would return the garage to an off-street parking space. 

In justifying the new building height above the district limit, the staff report refers to a large home at 901 Page Street, which makes the application “consistent with at least one other three-story building in the vicinity and in the same zoning district.” 840 Page is a dump compared with this beautiful old farmhouse, an exception in a neighborhood of mostly one-story cottages. The neighbor who complained inventoried Page and Jones Streets between San Pablo Avenue and Sixth and found 88 one-story and 19 two-story residences. The staff report misrepresents the character of the neighborhood, when one of the purposes of the R-1A district is “to recognize and protect the existing pattern of low medium density residential areas characterized by reasonable and spacious type of development in accordance with Master Plan Policy.” 

Such lies of omission and distortion are a clear indication of staff bias in favor of the applicant and counter to the interests of the neighbors; it’s no wonder that so many consider the Planning Department to be corrupt and are looking for ways to reform its culture. Even when the application is fraught with past violations and detriment to nearby properties, and the assessor’s office has listed the property as lesser quality, the planning staff goes out of their way to put the stamp of approval on an application. The scofflaws anticipate this and deliberately bypass the permit process because they know they will eventually get what they want. 

The neighbors’ rights of due process are diminished, as the discussion will focus on the partially completed project. When virgin project plans are filed, the neighbors have a fighting chance to influence the design outcome, but a fait accompli disadvantages the neighbors. 

To add insult to injury, the Page Street applicant retaliated against the neighbor whose complaint triggered the inspection by filing his own complaint about an existing non-conforming use that needs to be fixed on her property. It seems that any old non-conforming use is the responsibility of the current owner to remedy. Caveat emptor indeed. 

Fear of retaliation and bribery make the neighbors hesitant to complain about illegal construction, but it needs to be done for safety’s sake. To file a complaint, don’t bother filing a form first. Instead, go directly to the Building and Safety Division, make phone contact with an inspector, and send photos of the unpermitted work. Follow that up with a letter to Tim Burroughs, the acting director of planning. A public records search on the project might turn up valuable information. 

It’s time for the City to get serious about illegal construction and crackdown with higher penalties. On September 9, 2014, Kriss Worthington referred the matter to the Manager, who issued a report on October 7, 2015. Since the fatal balcony collapse, inspections have intensified but more needs to be done to prevent illegal construction. 

Hate the Homeowner 

In one of the more bizarre hit pieces, two members of the Cal Graduate Assembly, Tyler Barnum and Jonathan Morris, wrote an op-ed in the Daily Californian on July 24^th lambasting the City Council for upping the housing mitigation fees in new construction and just couldn’t restrain themselves from a gratuitous attack on homeowners. Here’s what they wrote: “But while the housing shortage continues to harm lower-and middle-class renters in our communities, City Council has chosen, once again to cater to the selfish interests of old, wealthy, white homeowners.” At this point, most of us have become immune to weird non-sequiturs in the housing debate, but this one takes the cake. There must be some steps in their reasoning to explain how a $3K rise per market rate unit in the housing mitigation fee benefits homeowners, but it escapes me. By the time one ascends to graduate level status at Cal, common sense, if not critical thinking should have crept into the curriculum. At a time when students are scurrying to find an affordable place to study for the upcoming semester, their leaders are biting the hand that feeds them. Many older property owners have paid off their mortgages and can rent a room or apartment at below market rates and are looking for responsible tenants without a hostile attitude. Insult has never been a way to win hearts and minds, and it makes for a lousy first impression. 

Toni Erdmann 

This glorious 2016 German film by Maren Ade supplies more than two hours of sheer pleasure. I put it on my Netflix queue without reading any reviews, simply because the title contained my name, which just intensified the fun. The comedy, full of priceless moments and deeper insights, focuses on the relationship between a prankster father, played by Peter Simonischek, and his daughter Ines (Sandra Müller) a corporate consultant working in Bucharest. On one level, the movie is an exploration of conflicting personal agendas as Ines tries to leave home on the psychological level. But the film also works as a satire on German efficiency as the capitalist model takes hold in a former communist state. The best bit is Ines singing “The Greatest Love” at a party, accompanied by her father, but don’t watch the You Tube excerpt first, as it needs to be seen in context to appreciate how the moment captures the essence of their relationship. Enjoy.