ITEM #2- SUPPLEMENTAL ITEMS ZAB 12-12-13 Page 1 of 52€¦ · Complex Flood Zone Issues o Defined...

ITEM #2- SUPPLEMENTAL ITEMS ZAB 12-12-13 of 52

Profile _____________________________________________________________________________ Registered Professional Civil Engineer and Registered Professional Land Surveyor with multiple college degrees and 19 years of experience overall, 6 years in Mexico and 13+ years in USA, offering planning, project management, engineering, survey mapping & survey management, for Residential and Commercial Land Development Projects. Strong designer, planner and problem solver who readily adapts to change, works independently or as a team player and exceeds expectations. Able to juggle multiple priorities and meet tight deadlines without compromising quality.

Diplomatic and tactful with professionals and non-professionals at all levels. Have worked closely with, Public Agencies and Consultants for the successful permitting and construction of various projects. Talent for quickly mastering technology, self-motivated to continue education to enhance career as needed to successfully meet the demands of the dynamics of this profession.

Flexible and versatile – able to maintain a sense of humor under pressure. Poised and competent with demonstrated ability to easily transcend cultural differences. Thrive in deadline-driven environments. Excellent team-building skills.

Engineering Key Skills Summary _______________________________________________________ Ability to visualize and Design

Complex Grading and Drainage Projects

Improvement Plans 3D Terrain Modeling Open Channel Hydraulics Pressure Flow Hydraulics Sanitary Sewer Calculations Project Management Water Demand Retaining Wall Design

Storm Sewer Calculations Hydrology:

o Hydrographs o Urban Runoff o Watershed Management

Pond Routing Design Flood Plain Analysis – HEC-

RAS Creek Bed Armoring and

Embankment Design Sediment Transportation

C3 Calculations o Developed Office Tools

To Streamline C3 Calculations

o Provide Support And Training to In-House Engineers & Planners

Complex Flood Zone Issues o Defined and Coordinated

With FEMA Base Flood Elevations (BFE)

Surveying Key Skills Summary _________________________________________________________ Parcel Maps Final Maps Mapcheck Calculations

Lot Line Adjustment Plat and Descriptions ALTA Surveys Topographic Maps

Prepare Staking Plans Manage and Check Survey data Manage Day to Day Field

Survey Crew Computer Skills Summary _____________________________________________________________

AutoCAD Civil 3D Land Desktop Eagle Point RetainPro

BAHM HydroCAD HEC-RAS HEC-1 HEC-HMS

Hydraflow MS Outlook MS Excel MS PowerPoint MS Word

Professional Experience _______________________________________________________________

ENGINEERING Design complex Grading Plans and process them through local agencies for permitting Design and process Improvement Plans Project Management – Multiple Projects at one time Supervision of Staff Engineers Prepare reports and calculations for complex storm water tasks, such as, Hydromodification, Flood Plain

Analysis, Culvert design, Water Quality, SWPPP, Stormwater Management Professional Experience Continued ______________________________________________________

Hydraulics and Hydrology Design and Analysis Have designed and managed projects and programs associated with storm water management and implemented

programs to meet compliance. Tasks include: research, data collection and analysis, erosion and sediment


control design, Best Management Practices (BMPs) selection, watershed planning studies, and design of storm water management facilities. Have also performed work associated with storm water quantity and quality analysis and BMP design including low impact development (LID). Have used familiarity with National Pollutant Discharge Elimination System (NPDES) permitting and other applicable water quality regulation requirements to perform assigned tasks.

Have provided training and support to Engineers and Planners Developed for the company several tools and spreadsheets to streamline and increase efficiency in some

complex engineering calculations HMP design. Have successfully designed and reduced by more than 30% (at planning stage) the required storm

water storage volume, by incorporating LID practices. Prepare CLOMR, LOMR, Elevation Certificates, and other complex documents for FEMA review and

approval

SURVEYING Have reconciled, calculated, and process complicated Boundaries. Have produced and processed Tract Maps, Parcel Maps and various other Surveying documents together with

necessary Calculations Prepare staking plans Manage Field Topo and Field Staking Manage day to day Field Survey Crew Have incorporated Mapping to Civil 3D, which now uses “Smart Text” and helps reduce human error Experience Party Chief

Employment History _________________________________________________________________ GREENBLUEARTH, INC. – Consulting Civil Engineers & Land Surveyors, San Jose CA President, 2011 to Present

CHARLES W. DAVIDSON CO. – Consulting Civil Engineers, San Jose CA Sr. Civil Engineering Project Manager & Survey Manager, 1999 to Present

LEGACY BUILDERS – Glendale, CA Construction Superintendent, 1998 to 1999

OSUNA CONSTRUCTION CO. – Los Angeles, CA Assistant Construction Analyst, 1997 to 1998

JUMAPAC (MUNICIPAL WATER AND SEWER DISTRICT) – Concordia, Sinaloa, Mexico Assistant Civil Engineer, 1996 to 1997

CAMBIOR EXPLORATION (CANADIAN MINE CO.) – Hermosillo, Sonora, Mexico Surveying Chief, 1995 to 1996

SOILS ENGINEERING & MATERIALS LABORATORY – Mazatlan, Sinaloa, Mexico Assistant Soil Engineer, 1993 to 1995

Education __________________________________________________________________________ SAN JOSE STATE UNIVERSITY – San Jose, CA Master’s of Science in Civil Engineering Degree, 2007 Major in Water Resources and Environmental

UNIVERSITY OF SINALOA – Mazatlan, Sinaloa, Mexico Bachelor’s of Science in Civil Engineering Degree, 1997

PROFESIONAL DEVELOPMENT COURSES: o AutoCAD Workshop o Civil 3D Workshop, ideate o BAHM Workshop o Water Quality and Quantity Seminar o SWPPP & Erosion Control Seminar


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AGREEMENT LIMITING FUTURE HIEGHT DEVELOPMENT

778 CONTRA COSTA

PARTIES:

Appellants:

Pat and Merrill Shanks

Carol and Robert Kelley-Thomas

Nicole Godfrey and Keith Oppel t

Applicants:

Joanna Wulbert

Juan Carlos Martinez

In consideration of Appellants agreeing to the design and plans for the remodel/expansion of Applicants’

home at 778 Contra Costa submitted to the Planning Department on November 26, 2013, Applicants

agree to the following limitations to their proposed and future construction:

Maximum heights: shall be the elevations posted on the yellow tapes across the story poles which shall

be verified by Applicants’ Surveyor using the following standards--absolute elevation of the story pole

yellow tapes and drawing plans verified by a “survey of datum and spot elevation markers.” Any future

elevation or height adjustment would require prior written approval be sent to Planning. Said numbers

to be determined by Planning and to be made a Condition of Approval on Use Permit No. AUP#2013-

0085. Said determination shall be finalized by Planning Staff and included as both an attachment to this

Agreement and to the Notice of Decision (“NOD).

I.LIMITATION ON EXCEEDING ‘MAXIMUM HEIGHTS’: (Non-Construction)

1) Permanent height increases defined: A permanent height increase is any increase in the above ‘Maximum height’ for over 24 hours.

2) No permanent height increases shall be made or requested by Applicants or their successors in interest unless, Applicants, or successors i) notify Appellants, if they at the time of action or request, occupy their current addresses; and, ii) apply to the City of Berkeley for use permits.

3) “Non-permanent height increases” are any physical item which exceeds maximum height limits but are removed within 24 hours, EXCEPT AS NOTED IN SECTION I.6.

4) Permissible items will be “Exemptions to the 24 hour removal “ restrictions are the following: a) a)Permissible items relative to the Roof Deck area: furniture (fixed or portable), lighting,

cabinetry, appurtenances, potted plants, adornments, shade elements, electronics, rough and finished plumbing, mechanical installations and accessories, etc. not to exceed 3’ 6” in height above roof deck finished floor as specified on the construction inclusive to permit XXXX and/or zoning application 2013-0085;


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b) Permissible items relative to the Non-Walkable Green Roof: Plantings associated with the soil depth anticipated for the green roof to be an average depth of 4”. Plantings are not designed for mowing or trimming and will grow naturally as constrained by the natural growth and as limited by soil depth.

5) Structures which are to be considered ‘permanent’ and subject to prohibition under this Agreement and under Use permit 2013-0085 shall include the following specific and similar: pergolas, trellises, gazebos, canopies, sheds or storage units, (Include items from theirs) lighting, towers, built-ins, other structures and appurtenances which will not be fixed or built permanently onto the floor, subfloor, or framing of the roof structure such as to exceed the max heights established for the construction inclusive to permit 2013-0085 and/or zoning application 2013-0085 such that it impedes views for any of the persons in this agreement without consent of the persons in this agreement for as long as they own the property.

6) “Temporary Items” shall include shade elements, temporary structures, adornments, elements for entertainment purposes, lighting and plants, or other similar items will not exceed the maximum heights of the structure in such a way that will cause an impediment to views for longer than 24 hours without prior consent of the persons in this agreement. The only exception to this shall be that in the case of emergency affecting the property, materials will be allowed in order to protect and/or restore the property in case of emergency (e.g. flood, earthquake, fire, slides, and other similar situations.)

II.LIMIITATIONS EXCEEDING MAIXIMUM HIEGHT—CONSTRUCTION

1) Applicants agree that they shall not construct nor apply to construct living space such as to such as to increase the maximum heights established by Building Permit XXXX and/or Use Permit Application 2013-0085 for as long as they own the property unless or until more than 50% of their home is destroyed or made uninhabitable by earthquake, fire or other similar disaster. And then any said application will be subject to obtaining use permits. Applicants further agree that this Agreement shall be attached to the City file for this address and shall be made part of all Disclosure documents should Applicants or their successors sell subject property.

2) If this subject property is sold or transferred to party other than Applicants, this Agreement will be provided/ disclosed as part of the sale or transfer documents that any permanent construction .increases to the height limits established by the construction inclusive to permit XXXX and/or Use Permit application 2013-0085 will be subject to a use permit and hearing.

3) Applicants further agree that upon sale or transfer of subject property this entire Agreement shall be given to any prospective purchaser or transferee.

III. EFFECTIVE DATE

1) This agreement shall become effective prior to and as a condition precedent to obtaining a final building inspection.


1

Jacob, Melinda

Subject: FW: 783 Contra Costa Road Moran Job No. 8745Attachments: CONTRA COSTA HOUSE-24x36@8SCALE(12-04-2013).PDF

From: Patricia Shanks [mailto:[email protected]]

Sent: Thursday, December 12, 2013 10:33 AM To: Johnson, Pamela

Cc: Joanna Wulbert; Carlos Martinez; John Newton; Bob Kelly-Thomas; Carol Kelly-Thomas; Nicol Godfrey & Keith

Oppelt; Keith Oppelt; Katy Joy Subject: Fwd: 783 Contra Costa Road Moran Job No. 8745

Re: AUP Application 2013-0085, 778 Contra Costa Avenue

For the Berkeley Planning Department and the Zoning Adjustment Board

Hello Pam,

You will recall that Merrill and I hired a surveyor to measure elevations of the most recently proposed plans

(and associated story pole tapes) for 778 Contra Costa Avenue, since the Applicants did not provide you or us

with these measurements.

In this email I am forwarding the survey report from Moran Engineering, the company that performed the

survey for us.

These elevation measurements should be attached by reference to the Applicants' November 26 plans.

Thank you,

Pat and Merrill Shanks

783 Contra Costa Avenue

---------- Forwarded message ----------

From: Robert J. Brunel <[email protected]>

Date: Thu, Dec 12, 2013 at 10:06 AM

Subject: 783 Contra Costa Road Moran Job No. 8745

To: [email protected]

Pat,

Attached is a PDF of the preliminary Story Pole Survey. This drawing shows

the relative elevations of the poles and roofs.

The deck poles (yellow) are generally at elevation 105.25

The perimeter poles (yellow) are generally at elevation 104.3

The orange string is generally at elevation 103.3


2

The parapet (roof) varies from 102.2 to 101.6

The floor of your house is at elevation 104.58.

Note that these elevations are on an ASSUMED datum.

Robert Brunel

MORAN ENGINEERING, INC.

1930 Shattuck Avenue, Suite A

Berkeley, CA 94704

(510)848-1930 Fax (510) 848-9725


1

Jacob, Melinda

Subject: FW: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.

From: Joanna Wulbert [mailto:[email protected]]

Sent: Thursday, December 12, 2013 1:11 AM

To: Bob Kelly-Thomas Cc: John Newton; Johnson, Pamela; Pat Shanks; ACP Keith Plumbing; Nicol Godfrey Oppelt; Katy Joy; Carol Kelly-

Thomas,, Public; Bob Kelly-Thomas,, Public Subject: RE: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.

Thank you, Bob. Apologies for the late night response.

- Joanna & Carlos

We've provided our responses inline & underlined below.

From: [email protected]

Subject: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.

Date: Wed, 11 Dec 2013 20:33:39 -0800

CC: [email protected]; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]; [email protected];

[email protected]


Joanna and Carlos,

We look forward to resolution based on today's discussion. We look forward to receiving "future view protection" language and a description of the process and enforcement.

We believe the points listed below are consistent with the sense of the discussion. If not, please let us know.

• We all agreed to have the ZAB condition approval of a plan on verification of absolute elevation of the story pole tapes and the drawing heights via a survey of datum and spot elevation markers. The appellants surveyors have completed measurements. Appellants are willing to provide their report for this purpose when complete.

Applicant survey will provide this data. It will be delivered to Planning by noon tomorrow (12/12) and if

accepted by planning will be send to Appellants right after the Planning Department's acceptance.

• The appellants hinge point of support of the Nov. 26 plan is assured protection of the upslope significant view at 783 Contra Costa Ave. now and in the future. This would address our ongoing concern that a roof deck would establish a platform for a future habitable addition and/or other structures or accessories which would block the upslope view more than the proposed height increase. Such protection would address some of the other view impacts to adjacent properties.


2

If you are saying that Applellants support of the 11/26 plans is based upon obtaining a written agreement

that establishes the heights contain therein, we agree with you.

• Mr. Pinto believed there existed a type of document/written instrument which could be recorded/filed in the local Councilperson's office and attached to the permits that would insure such protection now and into the future.

•

• You agreed to compose and propose the language and determine the most appropriate instrument and method of insuring it's effect and enforcement in perpetuity.

We agreed to provide language for the agreement. As our lawyer said at the curbside meeting, she will

check with Planning for a format for an agreement that operates as described by Mr. Pinto. We agree to a

condition of approval that ties such agreement to our permit and becomes effective prior to and as a

condition precedent to obtaining a final building inspection.

• We agreed to send language and examples we would like included.

In that light we would appreciate the inclusion of the following points:

"prohibit at any time and for any length of time the presence, use, storage, installation, or construction of any temporary or permanent materials, accessories, vegetation, or structures, including mechanical structures/housings or solar panels, above the level of the parapet of the roof area of the building or that would block any part of the the upslope view corridor above the lowest point of the view corridor as bounded at the lower edge by the (proposed) structure of 778. The roof area includes any part of the footprint of the top of the structure, including the parapets, the rooftop deck, NE stairwell, and the green roof. The spirit and intent of this limitation is that nothing be allowed to project into the significant view corridor of the upslope property at 783, eg. flagpoles, banners, balloons, trees, potted plants, pergolas, awnings, enclosures, open walls, open roof, covers, etc.." We will be sending the draft language in a follow up email that which includes the ‘spirit and intent’ part of

your suggested language.

We may send other suggestions.

Nov. 26 Plan:

In order to support the Nov. 26 plan it is essential that we have absolutely no question about what it includes. Please inform us immediately if you believe any of the following is inconsistent with the Nov. 26 plan. Thank you.

1. Development of all the proposed living area per the Nov. 26 drawings achieving a 5 BR/4 Bath house with bonus room. Yes

2. Increase of the average and maximum heights by 2 ft. to 22 ft. and 26 ft. respectively. We believe yes, but this is a city computation question. We will verify with Pam.

3. Addition of a second-story deck. Yes


3

4. Addition of a first floor patio. Yes

5. A roof deck with a 4 ft. expansion of the original NE deck footprint to the rear/West and 4 ft. to the left/South. Yes

6. Increase in heights of 2'-11"and 2'-6" of the front and side parapets above the existing parapet per the Nov. 26 drawings. The parapets jog in elevation on the north side (increase in height of 2’-11” and 2’-0”); the parapets jog in

elevation on the north side (increase in height of 2’-11” and 1’-0”); the parapets jog in elevation on the

south side (increase in height of 2’-0” and 1’-0”)

7. Increase in height of appx. 6 ft. of the NE deck privacy screens above the exist. parapet. (Final height and location to be determined by neighbors at 772.)

The second mediation resulted in adjusting screens on the north elevation to balance privacy and views.

Based the results of our survey verification, the lower section of the privacy screen on the north elevation

that extends from the west to east for 12’ in length was lowered below a 6’ height to approximately a 4’ 7”

height from the proposed finished floor of the roof deck. The other (taller) section of screen on the north

elevation that extends further to the east 8’-9” in length was lowered below a 7’-2” height to a 5’-11” height

from the proposed finished floor of the roof deck. We will adjust the profile of these screen elements on

the 11/26 plan as we have committed at this time to the verified max elevations.

Given that there is a possibility for a loss of privacy in between us and 772 (Godfrey Oppelt) as has been

discussed, we agree to increase the level of privacy on the lower section of the privacy screen on the north

wall that extends from the west to east 12’ in length at your request, and we are open to keeping privacy

screens at no higher than 6’ in height as well as growing vegetation on the privacy screen.

We would need your direction to increase the height as we have committed to the max heights for the

proposed top-of-walls and top-of-privacy screens for the entire perimeter of the proposed structure.

8. Increase in height of the floor of the NE roof deck from the original Application. Yes

9. Expansion of the second-story living area and building shell 4 ft. to the rear/West. Corresponding reduction of the first floor living area and building shell 4 ft. to the front/East. Yes

10. Expansion of the first floor patio by 4 ft. to the front/East. Yes

11. Roof deck access via a stairwell reducing the front yard setback. Yes

12. Non-walkable green roof.


4

13. Walkable area on roof deck will be: NE corner of roof area: as shown on 11/26 plans (365 sq ft.)

14. A single level second story layout.

Is there anything that we did not include from the Nov. 26 plan or did not describe accurately? We are trying to avoid any oversights or misunderstandings. Please call us immediately if you have any questions or comments which would facilitate moving forward.

Regards,

Pat and Merrill Shanks, 783 Contra Costa Ave. Keith Oppelt and Nicole Godfrey, 772 Bob and Carol Kelly-Thomas, 782 Katy Joy, 791



1

Jacob, Melinda

Subject: FW: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.



To: Bob Kelly-Thomas Cc: John Newton; Johnson, Pamela; Pat Shanks; ACP Keith Plumbing; Nicol Godfrey Oppelt; Katy Joy; Carol Kelly-

Thomas,, Public; Bob Kelly-Thomas,, Public Subject: RE: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.

Thank you, Bob. Apologies for the late night response.

- Joanna & Carlos

We've provided our responses inline & underlined below.

From: [email protected]

Subject: Potential Resolution, AUP Application 2013-0085, 778 Contra Costa Ave.

Date: Wed, 11 Dec 2013 20:33:39 -0800

CC: [email protected]; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]; [email protected];

[email protected]


Joanna and Carlos,

We look forward to resolution based on today's discussion. We look forward to receiving "future view protection" language and a description of the process and enforcement.

We believe the points listed below are consistent with the sense of the discussion. If not, please let us know.

• We all agreed to have the ZAB condition approval of a plan on verification of absolute elevation of the story pole tapes and the drawing heights via a survey of datum and spot elevation markers. The appellants surveyors have completed measurements. Appellants are willing to provide their report for this purpose when complete.

Applicant survey will provide this data. It will be delivered to Planning by noon tomorrow (12/12) and if

accepted by planning will be send to Appellants right after the Planning Department's acceptance.

• The appellants hinge point of support of the Nov. 26 plan is assured protection of the upslope significant view at 783 Contra Costa Ave. now and in the future. This would address our ongoing concern that a roof deck would establish a platform for a future habitable addition and/or other structures or accessories which would block the upslope view more than the proposed height increase. Such protection would address some of the other view impacts to adjacent properties.


2

If you are saying that Applellants support of the 11/26 plans is based upon obtaining a written agreement

that establishes the heights contain therein, we agree with you.

• Mr. Pinto believed there existed a type of document/written instrument which could be recorded/filed in the local Councilperson's office and attached to the permits that would insure such protection now and into the future.

•

• You agreed to compose and propose the language and determine the most appropriate instrument and method of insuring it's effect and enforcement in perpetuity.

We agreed to provide language for the agreement. As our lawyer said at the curbside meeting, she will

check with Planning for a format for an agreement that operates as described by Mr. Pinto. We agree to a

condition of approval that ties such agreement to our permit and becomes effective prior to and as a

condition precedent to obtaining a final building inspection.

• We agreed to send language and examples we would like included.

In that light we would appreciate the inclusion of the following points:

"prohibit at any time and for any length of time the presence, use, storage, installation, or construction of any temporary or permanent materials, accessories, vegetation, or structures, including mechanical structures/housings or solar panels, above the level of the parapet of the roof area of the building or that would block any part of the the upslope view corridor above the lowest point of the view corridor as bounded at the lower edge by the (proposed) structure of 778. The roof area includes any part of the footprint of the top of the structure, including the parapets, the rooftop deck, NE stairwell, and the green roof. The spirit and intent of this limitation is that nothing be allowed to project into the significant view corridor of the upslope property at 783, eg. flagpoles, banners, balloons, trees, potted plants, pergolas, awnings, enclosures, open walls, open roof, covers, etc.." We will be sending the draft language in a follow up email that which includes the ‘spirit and intent’ part of

your suggested language.

We may send other suggestions.

Nov. 26 Plan:

In order to support the Nov. 26 plan it is essential that we have absolutely no question about what it includes. Please inform us immediately if you believe any of the following is inconsistent with the Nov. 26 plan. Thank you.

1. Development of all the proposed living area per the Nov. 26 drawings achieving a 5 BR/4 Bath house with bonus room. Yes

2. Increase of the average and maximum heights by 2 ft. to 22 ft. and 26 ft. respectively. We believe yes, but this is a city computation question. We will verify with Pam.

3. Addition of a second-story deck. Yes


3

4. Addition of a first floor patio. Yes

5. A roof deck with a 4 ft. expansion of the original NE deck footprint to the rear/West and 4 ft. to the left/South. Yes

6. Increase in heights of 2'-11"and 2'-6" of the front and side parapets above the existing parapet per the Nov. 26 drawings. The parapets jog in elevation on the north side (increase in height of 2’-11” and 2’-0”); the parapets jog in

elevation on the north side (increase in height of 2’-11” and 1’-0”); the parapets jog in elevation on the

south side (increase in height of 2’-0” and 1’-0”)

7. Increase in height of appx. 6 ft. of the NE deck privacy screens above the exist. parapet. (Final height and location to be determined by neighbors at 772.)

The second mediation resulted in adjusting screens on the north elevation to balance privacy and views.

Based the results of our survey verification, the lower section of the privacy screen on the north elevation

that extends from the west to east for 12’ in length was lowered below a 6’ height to approximately a 4’ 7”

height from the proposed finished floor of the roof deck. The other (taller) section of screen on the north

elevation that extends further to the east 8’-9” in length was lowered below a 7’-2” height to a 5’-11” height

from the proposed finished floor of the roof deck. We will adjust the profile of these screen elements on

the 11/26 plan as we have committed at this time to the verified max elevations.

Given that there is a possibility for a loss of privacy in between us and 772 (Godfrey Oppelt) as has been

discussed, we agree to increase the level of privacy on the lower section of the privacy screen on the north

wall that extends from the west to east 12’ in length at your request, and we are open to keeping privacy

screens at no higher than 6’ in height as well as growing vegetation on the privacy screen.

We would need your direction to increase the height as we have committed to the max heights for the

proposed top-of-walls and top-of-privacy screens for the entire perimeter of the proposed structure.

8. Increase in height of the floor of the NE roof deck from the original Application. Yes

9. Expansion of the second-story living area and building shell 4 ft. to the rear/West. Corresponding reduction of the first floor living area and building shell 4 ft. to the front/East. Yes

10. Expansion of the first floor patio by 4 ft. to the front/East. Yes

11. Roof deck access via a stairwell reducing the front yard setback. Yes

12. Non-walkable green roof.


4

13. Walkable area on roof deck will be: NE corner of roof area: as shown on 11/26 plans (365 sq ft.)

14. A single level second story layout.

Is there anything that we did not include from the Nov. 26 plan or did not describe accurately? We are trying to avoid any oversights or misunderstandings. Please call us immediately if you have any questions or comments which would facilitate moving forward.

Regards,




1

Jacob, Melinda

Subject: FW: AGREEMENT LANGUAGE FOR LIMITING FUTURE HEIGHT DEVELOPMENTAttachments: AGREEMENT LIMITING FUTURE HIEGHT DEVELOPMENT.docx

Importance: High



To: Johnson, Pamela; Sanderson, Debra; [email protected]; ACP Keith Plumbing; Nicol Godfrey Oppelt; [email protected]; [email protected]; [email protected]; [email protected]

Cc: John Newton; [email protected] Subject: AGREEMENT LANGUAGE FOR LIMITING FUTURE HEIGHT DEVELOPMENT

Importance: High

Hello Pam and Debbie and Appellants,

Rena was up to the wee hours drafting the content language for the agreement and is still researching the

proper vehicle.

After Commissioner Pinto’s site visit yesterday we had a ‘curbside’ settlement discussion on neutral territory—

literally the street in front of the properties. After expressing a strong desire for the parties, not the ZAB to

decide this, he asked Applicants to draft our ‘last and best offer’ for an Agreement regarding future

restrictions. Mr. Pinto asked and we agreed to send the draft to you to forward to him with urgency.

He would then look at it and perhaps have his staff review it for language not substance tweaks: The following

‘bottom lines’ were communicated:

1) If we do not have exact Agreement language but both parties are on board for the 11/26 plan [assuming

final Agreement language] that the ZAB , vote approval of 11/26 plans, place the matter on Consent for the

next meeting the only remaining item being final survey elevation numbers and Agreement language.

[Speaking now just for the Applicants: “We have been here before—last minute "close to agreement."] If

the majority of the ZAB does not want to vote on the application without having the Agreement, then we

request, in order to prevent being placed in perpetual continuance, then we request an up or down vote on

the Applicants' Plans].

2) Applicant’s offer should be in the nature of a ‘last and best’ in that it contains all terms stated to be important

to Appellants/Opponents.

3) This Agreement, should Appellants/opponents accept be made part of the 11/26 Application;

4) This Agreement would not be a ‘recorded’ on a ‘deed’ as it is not a use restriction but would have more ‘force

and effect’ than just the Use Permit. Commissioner Pinto believed that a similar agreement had occurred on a

hill property in which all parties signed; was done in a Councilmembers office and attached in the City to the

Property file. Applicant’s do not want this recorded on their deed; Appellants want something stronger than a

Use Permit condition. Perhaps one of you are aware of the situation to which Commissioner Pinto is referring.

5) Appellants/opponents did not concede that they had yet agreed to the 11/26 with or without the Agreement.

In accordance with this curbside discussion, Rena drafted the attached language which we believe reflects

what we heard to be all parties' interests and concessions. Please forward to Commissioner Pinto and call if

you have any questions concerns.


2

- Joanna and Carlos

512-695-3018


1

Jacob, Melinda

Subject: FW: Green Roof Question

From: Bob Kelly-Thomas [mailto:[email protected]]

Sent: Wednesday, December 11, 2013 8:36 PM

To: Johnson, Pamela Subject: Fwd: Green Roof Question

Please forward to Mr. Pinto per his request. Thanks.

Begin forwarded message:

From: Bob Kelly-Thomas <[email protected]>

Date: December 11, 2013 8:07:42 PM PST

To: John Newton <[email protected]>

Cc: Joanna Wulbert <[email protected]>, Pamela Johnson <[email protected]>, Pat Shanks <[email protected]>, Keith Oppelt <[email protected]>, Nicol Godfrey <[email protected]>, Katy Joy <[email protected]>, "Carol Kelly-Thomas,, Public" <[email protected]>

Subject: Green Roof Question

Hi John,

Today we spoke about the need to rule out a requirement of any City/State or other authority for a "safety

railing" for green roof maintenance.

Thank you for offering to research this and let us know.

Thanks,

Pat and Merrill Shanks, 783 Contra Costa Ave.

Keith Oppelt and Nicole Godfrey, 772

Bob and Carol Kelly-Thomas, 782

Katy Joy, 791


1

Jacob, Melinda

Subject: FW: ZAB packet for Project AUP2013-0085

-----Original Message-----

From: Tobey Wiebe [mailto:[email protected]]

Sent: Thursday, December 05, 2013 3:01 PM

To: Johnson, Pamela

Subject: ZAB packet for Project AUP2013-0085

Dear Pamela Johnson, Please include this letter in the ZAB packet for tomorrow:

My husband, Richard P. Wiebe, and I want to have our names removed from a petition that the

new owners of 778 Contra Costa Avenue circulated. We signed on to this petition without

knowing the full extent of the proposed remodel. We were only told of the raising of the

foundation two feet, but that is apparently only part of the picture. Once we learned of the

complete project , we became convinced that our names should be removed.

Richard P. Wiebe and Tobey M. Wiebe, 852 Contra Costa Ave., Berkeleyj


TO: Chairperson Cohen and Commissioners of the Zoning Adjustment Board FROM: Pat and Merrill Shanks, Carol and Bob Kelly-Thomas, Nicol Godfrey and Keith Oppelt, and Katy Joy (for the purposes of this memorandum, the “Appellants”) RE: Administrative Use Permit #2013-0085 for new construction at 778 Contra Costa

Avenue (the “Property”) Dated: December 5, 2013 This is to inform you that we, the Appellants, still have the following unresolved issues and concerns about the proposed home expansion project by our neighbors Carlos Martinez and Joanna Wulbert (the ”Applicants”). We appreciate the Applicants' attempts to reduce their encroachment of the views from our properties. We have cooperated with and have invested substantial time in meetings with the Applicants, the Planning and Zoning Department staff, the ZAB, and in mediation with the Applicants to discuss and review several different iterations of designs and drawings, including different proposals from the Applicants and ourselves. Unfortunately, the Applicants’ current proposal still is problematic and unsatisfactory for us, in particular, their continuing proposal for a third story roof deck. Besides the matters described below, it remains our belief that such roof deck is unnecessary and creates redundant useable open space which gratuitously impinges on the views and privacy from our properties. It is our preference that the ZAB not approve such roof deck, or, at the very least to consider a roof deck of a scale and location consistent with the original footprint of the NE deck, as included in Exhibit “Plan A1” (attached to this document). We respectfully ask that you consider these issues and address them in your deliberations and factor them into your decision regarding the Applicants' pending application for an administrative use permit. 1. No Objections to Expansion of Interior Dwelling Space (Including patio and rear deck). We have no objections to the Applicants' currently proposed development of the ground floor and the second floor of their home. This expansion will increase their interior living space by approximately 40% and will provide this family of three persons with a home that includes:

- 5 bedrooms - 4 bathrooms - a 500 sq. ft. “bonus room” (of which a portion might be used as a 6th bedroom) - an 800 sq. ft. second floor family room-kitchen space - 2 off-street parking spaces

Furthermore, we have no objections to their plans for a first floor patio and a second floor exterior deck with spa.

[NOTE: The applicants have suggested they might invite some adults from their extended family to live with them after they complete construction of their plans. Since this is not a certainty, staff has not


considered the application from the perspective of parking and traffic issues and this appeal does not address the potential traffic congestion and related street parking issues. We do not wish to speculate about how the Applicants would address the traffic and parking impacts. Contra Costa Avenue is a narrow, winding street with limited parking, and the ZAB may wish to consider this issue before deciding this matter.]

2. The Proposed Roof Deck is Excessive and Not Reasonably Necessary for the Satisfactory Use and Enjoyment of the Applicants' Property. In addition to approximately 2,400 sq ft of existing useable open space in their back yard, the Applicants proposed new patio and second story deck will provide them approximately 400 sq. ft. of additional useable open space. The Applicants will have significant views from the entire west-facing second story of their home. However, the Applicants have stated repeatedly they need and have a right to have a third story roof deck that expands their views from their home. No citation or regulation has been produced to support that opinion. Trimming trees will significantly improve the Applicants’ view without a third story deck. All evidence points to the existence of a second story westward view behind the overgrown and long-neglected trees and shrubs in the Applicants' back yard. The MLS for the sale of this property to the Applicants describes the following view: “Bay, Golden Gate Bridge, Partial, San Francisco.” Furthermore, when the foundation is replaced the entire house will be raised 2 feet, further improving views from their second floor. The houses on either side of them enjoy views above the tree line from their second stories, which are at very similar heights.

Additionally, we have informed the Applicants that we – at our sole expense – would hire an arborist and pay the cost of tree trimming in their yard to open the back yard/western views. In furtherance of this proposition, we secured permission of Applicants’ down-slope neighbors to trim, at our expense, the upper branches of their own overgrown trees and shrubs and have now scheduled such trimming. However, to date, the Applicants have refused to cooperate with us to trim their trees and bushes. The attached photos show an aerial view of their overgrown back yard, a side view of the overgrowth in the yard with the second floor of the Applicants' house visible at the right side of the photo to provide perspective, and a sample of the views from the similar height second story of one of the Contra Costa homes adjacent to the Applicants' property. These photos demonstrate the views that we suspect could be enjoyed from the second story of 778 Contra Costa Avenue once the subject trees and bushes are trimmed. It is common sense that the development of any view begin with an evaluation of the existing view enhancement possibilities. In this case the view from the second story needs to be evaluated when the tree line is lowered. When the foundation is replaced this view will only be improved, since the entire house will be raised 2 feet. 3. Applicants' Original and Revised Proposed Plans Encroach on “Significant View Corridor” The Shanks' Significant View Corridor is a well defined one, framed by 782 Contra Costa to the south, 772 Contra Costa to the north and the roof of the Applicants' house. The Applicants' currently proposed


plan still increases the building height because of the proposed third story roof deck and the associated structures. These increases materially encroach on and diminish the Shanks' Significant View Corridor. 4. Applicants Refuse to Provide Fully-dimensioned Plans Without Our Prior Concessions. Over the past several months, in order that we may properly determine the potential negative impacts of the proposed design, we have repeatedly asked the Applicants for fully-dimensioned plans that show the finished maximum heights at the several strategic locations on the structure, including parapets and railings – measurements that show finished heights relative to finished grade. We have asked them to then confirm those measurements are identical to the tapes attached to the story poles. To date, none of the tapes have been confirmed to be accurate representations of the various proposed and final heights of the structure and they could be very misleading. We understand and appreciate the planner's intention to include a height-related condition of approval to whatever AUP is finally approved. However, the “heights” referred to in the proposed condition of approval has not yet been determined and post-AUP approval verification does not guarantee the Application is accurately represented now. 5. Appellants’ Proposed Alternative Design Would Satisfy Applicants’ Reasonable Needs. Prior to our first mediation session with Applicants (on November 16), we sent them a digital copy of our professionally drawn alternative Plan A1 (see copy attached to this memo). With printed copies, we explained and discussed our compromise Plan A1. The Applicants showed no apparent interest. Instead, the Applicants orally described their latest proposed compromise plan, though they had no actual plans or modified story poles to graphically represent their plan. Consequently, we left the meeting with two proposed compromises on the table and no agreement about either of them. The Applicants modified their story poles the next day, presumably, though not clear to us, to illustrate their compromise proposal. We met again in mediation on November 21. We asked for some clarifications about what the story poles represented. The Applicants responded with their assurances that the poles and tapes matched their hand-drawn plan modifications. Applicants reject our proposed compromise Plan A1. On December 4 the Applicants informed us by e-mail that they reject our proposed compromise Plan A1 on the grounds that it “asks too much from [them].” We are frustrated by their response, as their current roof deck plan asks a lot from us and our neighbors. 6. The Applicants are Sophisticated Real Estate Investors Who May Move on Quickly, Leaving Us to Live with Their Design. All of us have lived in our homes for many, many years. The Shanks have lived in their home for more than 40 years and intend that their home remain within their family. The Applicants may or may not remain at 778 Contra Costa Avenue. All of their concerns and complaints about gaining and protecting their views and their privacy may be assuaged by the significant value they would add to their property and will reap upon its sale, while we will have to endure the adverse effects of


their design after they move. CONCLUSIONS. Our preference is for no roof deck. We'd like to avoid the resulting encroachment on our view, the noise, possible additions of tall potted plants, pergolas, fabric covers and other temporary structures that we'd rather not see in the foreground of our view corridor. The roof deck is a bad precedent for the neighborhood. We ask the ZAB to reject this proposed project as currently defined, OR to approve this project without any roof/third-story additions (including the stairwell) and with correspondingly lower parapets. The latter, modified approval would still permit the Applicants to achieve their goal of maximum increase in interior living space. The applicants will achieve substantial new views by means of their proposed remodeling -- raising the house by 2 feet and adding a second story deck. They would further enhance their views by doing (at our expense) long-neglected tree trimming in the southwestern area of their property. If you believe that the Applicants must or should have a third story roof deck, then it should be consistent with the smaller deck in our reasonable alternative – Plan A1.


778 Contra Costa Plan Comparison

10/10 Hearing Plan Neighbors' Plan A111/26 Modified Plan

*Compiled with Neighbors A1*

Master Bedroom on the top level No (Elimated prior to City submission) No No (Elimated prior to City submission)

Walk-able Green View Garden and Patio 100% / 955 sq ft Eliminated completely (100% Reduction) *Eliminated completely* (100% Reduction)

Roof Deck Covered space 250 sq ftUncovered & 240 sq ft (Reduction of 10 sq ft)

*Roof Deck Uncovered*365 sq ft (Expansion of 115 sq ft)

Max Height Impact to the front (East)

5',1" increase over existing on the north east corner

Uniform 9" increase over existing (Reduction of 4'4" from 10/10 plan)

2',11" increase over existing on the north east corner(Reduction of 2',1"from 10/10 plan )

Min Height Impact to the front (East)

1',1" increase over existing with respect to exiting tower

1', 8" decrease over existing with respect to exiting tower (Reduction of 4'4" from 10/10 plan)

6" decrease over existing with respect to exiting tower (Reduction of 2',1"from 10/10 plan )

Height Impact to the front (West) 1' increase over existing 9" increase over existing 1' increase over existing

Privacy Privacy walls between all 4 propertiesPrivacy wall between 2 properties (Reduction)

*Privacy wall between 2 properties* (Reduction)

783 Contra Costa:Shanks ; light gray 3-story upslope home across the street ******************** View Impact: As shown by story poles, photography, Staff visits, Staff report

2nd Floor Rooms: *************************** Golden Gate, SF Skyline, SF Bay, EB Bridge views preserved from 7 large, 2nd Story west-facing windows.

3rd Floor Rooms: - No impact to any of the 2 large, west-facing 3rd story windows.

Enhanced views from all floors over existing

2nd Floor Rooms: 7 windows: *************************** 6 windows- Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views preserved ******************************1 window- minor water impact; Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views preserved


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782 Contra Costa:Kelly-Thomas ; gray 3-story peaked roof home to the south with ranch-style front fence ******************** View Impact: As shown by story poles, photography, Staff visits, Staff report

One small side (north facing) Bathroom window is impacted partially (trees and homes only) All west facing windows in house: no impact

Bathroom window: Impact is eliminatedBathroom window: Impact is negligible to no impact

772 Contra Costa: Godfrey-Oppelt; tan flat roofed house to the north with long driveway ******************** View Impact: As shown by story poles, Staff visits, Staff report

2, Side south-facing 3rd Story Bedroom windows: 1- no impact1- preserved Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views; partial view of homes and hills to east

All west facing windows in house: no impact

Same as 10/10 Hearing Plan Same as 10/10 Hearing Plan

Design Living Space 3570 sq ft 3570 sq ft 3570 sq ft

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Jacob, Melinda

Subject: FW: Supplemental information: AUP Application #2013-0085, 778 Contra Costa Ave.Attachments: A1.pdf; A3.pdf

From: Bob Kelly-Thomas [mailto:[email protected]]

Sent: Friday, December 06, 2013 9:01 AM To: Johnson, Pamela

Subject: Supplemental information: AUP Application #2013-0085, 778 Contra Costa Ave.

To: Chairperson Cohen and Commissioners of the ZAB

From: Bob and Carol Kelly-Thomas (782)(“Appellants”) Re: Supplementary information: AUP Application #2013-0085, 778 Contra Costa Ave. (the “Property”) Date: Dec. 5, 2013

Preferred outcomes: We respectfully request consideration of one of the following possible actions: 1. The Application without a roof deck (and roof stairwell) (attached drawing A3), or 2. The Application with a NE roof deck per plan A1 (attached), or 3. A continuance pending analysis and verification of the existing/potential view from the viewpoint of the proposed second-story deck. Verification is required of the applicants’ oft-repeated claim of the need for a roof deck in order to achieve “a view over the tree line”. All evidence points to an existing view of the Bay, SF and the Golden Gate which could easily be developed by trimming the Property trees. We believe approval of any proposed roof deck without such verification would not be consistent with due AUP process. We believe that denial of the Application is not necessary given the three options available above. Our reasons for the above suggestions are described as follows. 1. Application without the roof deck (and roof stairwell)

a. At the ZAB (10-10-13) we stated clearly that we were willing to live with certain impacts and would have

no objection to 100% of the addition and development of living area as proposed in the Application. This is

99% of the entire project. The proposed living area would achieve a 5 BR/4 Bath home (with “Bonus” space for

a 6th

BR) which would have the most square footage of the 64 homes on Contra Costa Ave. Again, we would

have no objection to the construction of this dwelling including a green roof. It is hard to understand why the

applicants would not be satisfied with the largest home on the street with a second-story deck and still want a

roof deck knowing it blocks another’s significant view.

The small fraction of the project which is in question is the roof deck. While we have offered and

considered compromises which include a roof deck, our preference remains no roof deck but with support for

100% of the proposed living area. A roof deck contributes no living space to the house or community and only

opens a Pandora’s Box of neighborhood conflict, future actions, and future applications for roof decks because

the applicants want a “better view”.

b. We believe the roof deck and green roof may be a Trojan Horse for the third-story bedroom/bath addition which has been pursued since the beginning. We believe the single-minded drive for a roof deck is motivated primarily by the desire to construct a ready platform for and indoor


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stairway access to a future third-story habitable room. What is the evidence for this? The list of original “options” includes a third-story bedroom and bath addition. The original application included a “covered deck” enclosed on three sides with walls and “covered” with a standard roof with a ceiling height of 8’. In the Aug. 5 revision the roof was modified to a fabric cover of 7’8” which is the minimum ceiling height for a habitable room. Both proposed roof decks could easily be converted to a habitable bedroom. At subsequent meetings, a third-story bedroom/bath addition was again proposed in exchange for “giving up” the walkable green roof deck area. The most recent plan of Nov. 26 proposes a NE roof deck with the same footprint as the previously proposed bedroom/bath.

c. With a roof deck the Shanks and other neighbors would have no protection from future efforts to construct habitable third story additions. A view easement would provide some future protection to the upslope neighbor’s view (783, Shanks) but requires action by the applicants. To date they have refused to honor their mediation offer to provide concrete future protection in the form of a deed restriction. Afterwards (Dec. 2 email) they changed it to a “Notice of Limitation” which would require a permit which offers no more protection than currently is afforded by the existing AUP process. We now understand that appropriate protection would be provided by a view easement. Without a view easement, any roof deck with stairway access is an invitation to future proposals for a third-story habitable addition. d. We believe that a 40% addition of living space and the achievement of the largest house on Contra Costa Ave., with a second story deck addition with a significant view constitutes a reasonable development of the Property without a roof deck and its multiple impacts on four adjacent properties. The proposed addition of a roof deck and the resulting loss of the Shanks significant view would be unreasonable considering the proposed development of the largest habitable structure on Contra Costa Avenue. e. We believe that there are important questions regarding the consistency of the Application and the Staff Report with facts, dimensions, the BMC, zoning regulations, zoning definitions, interpretations, prior practice, and precedent which would make approval of the Application with the roof deck problematic. Per ZAB policy, in the unexpected case that there is not resolution prior to the Dec. 12 ZAB, we plan to submit a written list of issues at the ZAB in order to protect our rights to future redress.

For example, there are material inconsistencies within the Application itself. The Application Tabulation Form and Staff Report both state a maximum height increase of 2 ft. which by BMC definition includes any parapets/railings. 2 ft. is not consistent with the 5’ 6” maximum building height increase shown on the Application drawings. The applicants Nov. 26 proposes a height increase beyond 2’ and claims it is a height reduction. They cannot have it both ways. They cannot officially request a 2’ height increase in the Application Tabulation Form and a different height increase in the drawings. This is material to the consideration of a roof deck which would result in the unreasonable loss of a significant view. With all the deliberation of this Application this is not just an oversight and cannot be subject to a mere “correction” this late in the AUP process. Who knows which figure interested parties have used in their consideration of this Application? This inconsistency needs to be addressed in a serious way before a roof deck can be considered. We have requested clarification from the applicants. They have replied with lots of words but no single unequivocal response.

f. The applicants Nov. 26 plan for an expanded NE deck is overreaching on their part and would provide exactly the footprint of the third-story bedroom/bath which they have been proposing from the beginning. Wouldn’t it be enough to enjoy the largest home on the street with a second-story deck with significant views?

2. Application with a roof deck per the compromise Plan A1.


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a. At mediation on Nov. 16 we presented our best compromise, Plan A1. We believe Plan A1 (with roof

deck and a view easement) achieves both parties’ interests. In order to present our compromise Plan A1 in a

clear and accurate manner we arranged at our expense to have plans professionally drawn and printed in large

scale format (24" x 36"). We provided the applicants with digital copies of our compromise plans in advance of

mediation and provided large-format paper copies to the applicants at mediation.

b. Our compromise Plan A1 is not an adversarial bargaining position. Plan A1 is our best compromise based on our clearly stated key interest and the designer comments.

Our key interest is the protection of the significant view corridor at 783. Achieving this would address other

issues. In that light our key remaining goals are:

a. reduction (not elimination) of the proposed loss of the significant view at 783 to a reasonable level, and

b. protection against future loss via a view easement.

The applicants’ key interest is the reasonable development of a view over the treeline.

Compromise Plan A1 (attached):

1. Is based on appellants Plan B (Oct. 10) and addresses subsequent designer comments re weather

protection and the privacy screen.

2. Develops 100% of the living space as proposed in the Application.

3. Develops a NE roof deck with the same footprint as proposed in the Application.

4. Retains the proposed green roof as non-walkable. This would reduce the 4' 6" high parapet/railing to a 1 ft. high parapet reducing the impact on the upslope view.

5. Develops a roof stairwell including the proposed reduction of the front setback.

6. Moves the fabric cover from the proposed NE deck to the proposed second-story deck. This would

reduce the height of the enclosure walls of the deck and stairwell tower to 3' 6" above the deck surface. This will reduce the impact on the significant view at 783.

7. Reduces the height of the NE deck privacy screen and leaves its design open to the applicants and

owners of 772.

8. Would require agreement by the applicants to provide future protection of the view at 783 via a view

easement.

Compromise Plan A1 achieves:

1. For the applicants: “Appropriate development of all property”:

a. 100% of the proposed addition (1,059 sf or a 40% increase) and development of living space per the submitted Application and plan including the 2 ft. height increase and the proposed footprint. The proposed total living area (3,989 sf) would result in the largest structure of the over 60 homes on Contra Costa Ave.

b. The applicants stated key remaining interest of "Access to the significant view above the rear yard (West) treeline from the point of view of a person standing on the (roof) deck". While no regulation has been produced which supports a “right to a particular view”, we are willing to make this compromise to achieve resolution.


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2. For the appellants: “Gives reasonable protection to views “: Reduction (not elimination) of the loss of the significant view at 783 (Shanks) to a reasonable level. This would be consistent with previous ZAB Findings regarding the Shanks significant view, zoning definitions, and zoning regulations

Benefits of Plan A1:

A. Achievement of the key remaining stated key interests of all parties.

B. Of all the options it is most consistent with the submitted Application and plan (no added s.f., no additional

bedrooms or bathrooms) therefore requiring no resubmission by applicants or re-analysis by staff.

C. It is consistent with the scale and parameters of the existing application and plan (s.f. of added living space, max. and ave. heights, footprint, #bedrooms, #bathrooms) therefore requiring minimal re-examination by the ZAB.

D. Retains the proposed rooftop deck in a location and at a scale that is more in keeping with the location and scale of the majority of other decks in the neighborhood.

E. Retains the green roof.

F. Reduces project cost.

G. Reduces impacts:

Loss of views: The Shanks (783) would lose some of their significant view but less than other options. The Oppelt/Godfrey family (772) would lose some of their views of the hills and South Bay but less than other options.

Loss of privacy: The NE roof deck would be in a location and at a scale which would reduce (not eliminate) the loss of privacy. It would be partially screened from the upslope homes by the street tree. It would be a reasonable distance from 782 and screened from 772 by the privacy screen.

At the ZAB (10-10-13) as part of our compromise Plan B we stated clearly that we were willing to live with

certain impacts and would have no objection to 100% of the addition and development of living area as

proposed in the Application. This is 99% of the entire project. The proposed living area would achieve a 5 BR/4

Bath home (with “Bonus” space for a 6th

BR) which would have the most square footage of the 64 homes on

Contra Costa Ave. Again, we would have no objection to the construction of this dwelling including a green

roof. It is hard to understand why the applicants would not be satisfied with the largest home on the street with a

second-story deck and still want a roof deck knowing it blocks another’s significant view.

The small fraction of the project which is in question is the roof deck. While we have offered and considered

compromises which include a roof deck, our preference remains no roof deck but with support for 100% of the

proposed living area. A roof deck contributes no living space to the house or community and only opens a

Pandora’s Box of neighborhood conflict, future actions, and future applications for roof decks because the

applicants want a “better view”.

3. A continuance pending analysis and verification of the existing/potential view from the viewpoint of the proposed second-story deck. Verification is required of the applicants’ oft-repeated claim of the need for a roof deck in order to achieve “a view over the tree line”. All evidence points to an existing view of the Bay, SF and the


5

Golden Gate which could easily be developed by trimming the Property trees. We believe approval of any proposed roof deck without such verification would not be consistent with due AUP process.We have made a good-faith effort to lower both the downslope trees and the subject property trees. We expect the downslope tree trimming to occur before the Dec. 12 ZAB. The applicants have effectively denied their Nov. 16 offer to let us trim their trees at our own expense by unreasonably conditioning it on our agreement to their Nov. 26 plan.

Other Issues

The Oct. 10 report conclusion that the “roof deck gives reasonable protection to views (at 783)” is not consistent with the facts, previous ZAB Findings, zoning definitions, and zoning regulations. [ZAB 10-10-13, Staff Report, Section V. Issues and Analysis, “Potential Impacts on Protected Views”]

For example, the analysis that “the remaining views (Shanks) will remain intact” and “the majority of views will remain unobstructed” is not consistent with on-site views whether sitting or standing. Further, the report analysis does not clearly define or consistently refer to the Shanks view as “significant” which is inconsistent with the previous ZAB Findings of May 12, 2011. This omission is material to the AUP definition of a detriment caused by the loss of a significant view. The report analysis makes no mention of “the Berkeley Marina” in the description of the Shanks view which is inconsistent with the previous ZAB Findings (March 11, 2010). This is material to an accurate analysis of the potential loss of view of the Berkeley Marina in this particular case.

References:

Berkeley Municipal Code: Chapter 23E.96, Section 23E.96.0202-Purposes: “The purposes of the Hillside (H) Districts are to: C. “Give reasonable protection to views yet allow appropriate development of all property”.

AUP definitions: “A project (or part of a project) may be considered detrimental if it has the following impacts: Unreasonable obstruction of a neighbor’s significant view.”

Policy UD-31-Views: “Construction should avoid blocking significant views, especially ones toward the Bay, the hills, and significant landmarks, such as the Campanile, Golden Gate Bridge, and Alcatraz Island.

Our Support and Compromise Efforts: A plain and fair reading of our correspondence shows that from the

beginning we have welcomed and supported the development of the Property including rehabilitation,

remodeling and the proposed addition of living area. [Example: Kelly-Thomas to Wulbert-Martinez, Email,

Sept. 2, 2013: “We reiterate our support of the renovation of this long-neglected property.” “We support the

proposed rehabilitation, remodeling and addition of living space.”]

The questions we had were regarding the location of some of the elements of the plan. In every case we offered

positive, constructive options. [Kelly-Thomas to Wulbert-Martinez, Email, “Impacts and Options”, Sept. 2,

2013: “The purpose of this letter is to more clearly describe those elements, their impacts and positive design options.”] We appreciate the adjustments the applicants have made to address some of those impacts.

October 9 Meeting:

On Oct. 9 we initiated an email exchange with the applicants attempting to:

1. Clearly communicate our key interest in protection of the significant view corridor at 783.


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2. Clarify their remaining key interest. 3. Identify the basis upon which they claimed a “right to a view over the tree line”.

Our approach was based on interest-based mediation rather than adversarial, positional bargaining. Via email

we thought we had reached a clear understanding of each other’s interests, initiated a meeting of the parties on

Oct. 9, and came with open minds. In response to our questions they clarified that their key remaining interest

was "access to the significant view above the rear yard tree line from the point of view of a person standing on

the proposed covered deck".

In response to our request the applicants did not provide any citation or regulation to support their claim of a

right to a certain view.

Applicants produced two plans, one which reduced the walkable green roof and the second, Option E, which

converted the walkable green roof to non-walkable and “removed” the covered deck by replacing it with a

bedroom. Option E would have exceeded the addition of living space proposed in the Application. Option E

took us by surprise because they did not mention a third-story bedroom in their lead-up email. However, rather

than break off discussion we said we would look at it more carefully after a night’s sleep. We did and confirmed

that Option E was their original verbal trial balloon which we made clear at the time would result in an

unacceptable loss of the significant view at 783 (Shanks) among other impacts.

October 10 Compromise Offer:

In response to the applicants clarification on Oct. 9 of their key interest in “a view over the tree line from the NE roof deck” we developed and offered on Oct. 10 a compromise Plan B (now Plan A1) which included the NE roof deck with lowered walls and a non-walkable green roof. These changes achieved the applicants stated request for “a view over the tree line from the (NE) roof deck” and lowered the other roof deck structures enough to reduce (not eliminate) the loss of the significant view from 783 (Shanks) to a reasonable level. Unfortunately the applicants rejected this compromise offer on the basis of the need for “screening against rain and sun” and architectural aesthetics. We felt these minor details were an unreasonable basis for rejecting a compromise plan which achieved both parties’ stated key interests which we had worked hard to identify.

At the ZAB hearing on Oct. 10, we described our compromise Plan B and submitted a written description and drawings.

At the ZAB we were surprised that the designer did not identify the proposed bedroom addition on the

projected drawing of Option E and that the owner’s verbal description of our meeting and Option E omitted the

proposed bedroom. Only after a ZAB member’s follow-up question did the designer finally acknowledge that

Option E included a third-story bedroom addition.

Givers or Takers?: There is a fundamental difference between the parties’ perspectives. Our interest is to

protect what we have enjoyed for decades. Our compromise Plan A1 will lose us some and gain us nothing

relative to what we have enjoyed. The applicants’ goal is to gain what they don’t have and which they may sell

in a short time leaving behind a permanent rooftop structure and potential for contention. The applicants claim

that we “ask too much” is ironic considering that we only stand to lose views and privacy and gain nothing

while they stand to gain the largest house on Contra Costa, a second-story deck, etc.. Any “losses” are only

concepts on paper. The applicants appear to be unreasonable takers not givers. All the time, expense, effort, and

heartbreak which the applicants mention could have been avoided if they had been satisfied with a 40% increase

in living space creating the largest house on Contra Costa and a second-story deck with a significant view

achieved by lowering their own trees.


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Mediation, Nov. 16:

The Applicants didn't appear interested in understanding our compromise Plan A1; they asked no questions. They appeared to have a conscious goal of giving no attention to our compromise plan.

The Applicants proposed recent changes by showing a rough hand drawing which was not clear. They repeatedly asked us if we agreed to consider their plan. We agreed to consider it after we understood it clearly. Both parties agreed to the need for adjusted story poles, written plans, and clarification of any questions. At that point the changes were not clear to us. We left the meeting with two proposed compromises on the table. We trusted that they would give our compromise plan the same attention we were giving theirs. The Applicants modified their story poles the next day. We met again on Nov. 21, with the mediator present, to ask for some clarifications about what the story poles represented. There was some confusion since written plans had not yet been produced. The applicants provided the new drawings at 8 PM on Nov. 26 and set a Dec. 2 deadline for a response which we found unreasonable considering the long Thanksgiving holiday.

Applicants reject our proposed compromise Plan A1.

On December 4 we received an email from the Applicants rejecting our proposed compromise Plan A1, on the grounds that our compromise “asks too much from us.” The applicants statement, “A1 asks even more concessions than the compromise (Plan B) you presented to the ZAB”, is not consistent with the two plans and drawings of Plan B and Plan A1. If anyone has a question we encourage you to look at the drawings. Again, it is not we that are asking too much. With any of the plans we stand only to lose what we enjoy and gain nothing. Anyone who is proposing a 40% increase in living area which will result in the largest house of the over 60 homes on Contra Costa including a deck with a significant view, and still wants more knowing the impacts on others is asking too much.





Master Bedroom on the top level No (Elimated prior to City submission) No No (Elimated prior to City submission)

Walk-able Green View Garden and Patio 100% / 955 sq ft Eliminated completely (100% Reduction) *Eliminated completely* (100% Reduction)

Roof Deck Covered space 250 sq ftUncovered & 240 sq ft (Reduction of 10 sq ft)

*Roof Deck Uncovered*365 sq ft (Expansion of 115 sq ft)

Max Height Impact to the front (East)

5',1" increase over existing on the north east corner

Uniform 9" increase over existing (Reduction of 4'4" from 10/10 plan)

2',11" increase over existing on the north east corner(Reduction of 2',1"from 10/10 plan )

Min Height Impact to the front (East)

1',1" increase over existing with respect to exiting tower

1', 8" decrease over existing with respect to exiting tower (Reduction of 4'4" from 10/10 plan)

6" decrease over existing with respect to exiting tower (Reduction of 2',1"from 10/10 plan )

Height Impact to the front (West) 1' increase over existing 9" increase over existing 1' increase over existing

Privacy Privacy walls between all 4 propertiesPrivacy wall between 2 properties (Reduction)

*Privacy wall between 2 properties* (Reduction)

783 Contra Costa:Shanks ; light gray 3-story upslope home across the street ******************** View Impact: As shown by story poles, photography, Staff visits, Staff report

2nd Floor Rooms: *************************** Golden Gate, SF Skyline, SF Bay, EB Bridge views preserved from 7 large, 2nd Story west-facing windows.


Enhanced views from all floors over existing

2nd Floor Rooms: 7 windows: *************************** 6 windows- Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views preserved ******************************1 window- minor water impact; Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views preserved


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782 Contra Costa:Kelly-Thomas ; gray 3-story peaked roof home to the south with ranch-style front fence ******************** View Impact: As shown by story poles, photography, Staff visits, Staff report

One small side (north facing) Bathroom window is impacted partially (trees and homes only) All west facing windows in house: no impact

Bathroom window: Impact is eliminatedBathroom window: Impact is negligible to no impact

772 Contra Costa: Godfrey-Oppelt; tan flat roofed house to the north with long driveway ******************** View Impact: As shown by story poles, Staff visits, Staff report

2, Side south-facing 3rd Story Bedroom windows: 1- no impact1- preserved Golden Gate, SF Skyline, SF Bay, EB Bridge, and much of EB views; partial view of homes and hills to east

All west facing windows in house: no impact

Same as 10/10 Hearing Plan Same as 10/10 Hearing Plan

Design Living Space 3570 sq ft 3570 sq ft 3570 sq ft

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RENA RICKLES ATTORNEY AT LAW

1970 BROADWAY, SUITE 1200

OAKLAND, CA 94612 TEL: (510) 452-1600 ● FAX: (510) 451-4115

December 6, 2013 Michael Alvaraz-Cohen, Chair Zoning Adjustments Board ("ZAB") Members 2120 Milvia Street Berkeley, CA 94704 Re: 778 Contra Costa, APPROVE Dear Chair Cohen and ZAB Members, This letter is on behalf of Joanna Wulbert and Carlos Martinez ("Joanna and Carlos" or "we") who are repairing, restoring, and enhancing what must be the most run down, unattractive homes on Contra Costa to turn it into a home on par with, but not as high as, its adjacent neighbors. Instead of welcoming Joanna and Carlos into their neighborhood and supporting their efforts to convert an eyesore to a high quality designed home, they have attacked their motives, their character, misrepresented their facts, statements, designs and, in their last proposal, demanded that they reduce the existing height of their home! Joanna and Carlos request your approval to their proposals. Opponents' proposal which inter alia demands an enhancement of opponants' current view in that it reduces the height of the existing house, we urge you to reject as unreasonable. Procedural History Joanna and Carlos' first presentation to opponents began with a ZAB suggested compromise (2010) of a very small rooftop bedroom. Because of their virile opposition, Joanna and Carlos took a major 'hit' and removed the entire bedroom from their application and asked instead for a flat roof deck on top of their second story. At the October 10,2013,hearing, opponent's fought the roof deck but advised you that 'they were very close' to a compromise, a compromise which they presented at that hearing. Accordingly, you continued the matter to December 12th to allow the parties to find a compromise between the two presented proposals. At the mediations, subsequent conversations and in their submittal to you, these opponents increased the demands that they presented in October, requiring that the height of the existing house be reduced. 1 Clearly they weren't close then, nor are they now. 1 This is Plan 1-A in opponents' package


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Opponents demand for denial is based on standards of review that are not in nor implied in the Zoning Ordinances; to wit: 1. Substitute opponent's judgment as to whether Joanna and Carlos need a better view for the Zoning Ordinance standard of 'unreasonable detriment.' "Deny the roof deck because it [is] unnecessary and creates redundant open space that impinges on views and privacy." Despite the fact that all 4 opponents have clear western vistas of the Golden Gate, San Francisco Bay and City, Alcatraz and the Bay Bridge, they urge denial on the basis that Joanna and Carlos should be satisfied with a limited filter view of some of these features even if they clear cut all of their trees. 2. Re-write the H-Overlay Purpose to read: Protect the entire view of everything from every room, including a window over a toilet as opposed to "Give reasonable protection to views…" (23E.96.020.C) After the construction of either proposal before you, no opponent will lose their view of the Golden Gate and Bay bridges, San Francisco Bay and City, or Alcatraz. Only Pat Shanks will lose a small fraction of her view of the Bay north of those significant landmarks. Opponents' creative legal standards and charges against Joanna and Carlos are based on incorrect facts, unsupported allegations and distorted logic.

Opponents' claim that after re-model 778, at 3570 square' will be the largest of all 60 homes on Contra Costa—FALSE. A quick survey shows that at least four homes on Contra Costa are larger—763, 773, 828 and 840.

Opponents ignore the fact that the height of Joanna and Carlos' home, after re-model, and including privacy walls, will be lower than either of their adjacent neighbors.2

Opponents' claim that the roof deck is a Trojan horse to sneak in a top story bedroom is an empty charge in that, to do so would require intense City review and hearings, even more so than this one.

Opponents' magnanimous acceptance of "99% "belies that fact that they are 'accepting' everything they cannot see, and that the value of and the use of the roof deck far exceeds 1% of this proposal.

Opponents unfairly charge that Joanna and Carlos did not consider their A-1: A-1, was reasonably rejected in that it cut down the height of the existing house and reduced usable deck space below their 'close compromise.

Opponents speculate that Applicants are real estate experts and conclude that because of that they will leave the neighborhood with a poorly designed home (?)!

Opponents continue to allege an irregularity with Applicants' proposal because they "refuse to Provide Fully-dimensioned Plans" despite the fact

2 See Opponents' Google Ariel View, attached


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that both Staff and Joanna and Carlos have advised them that the surveyors' reports more than satisfy that standard.

Even if it were relevant, which it is not, opponents' own 'evidence' does not show that by cutting (or even clear cutting) 778's and the immediate lower neighbor's trees, Joanna and Carlos' view will be anywhere close to that of what they'd have on their proposed roof deck. 1. Ariel view of trees (from a different house)3 shows that even if 778's trees (foreground) were leveled, the 3 trees behind them, not on their property, would prevent all but a minimum enhancement of view. 2. Opponents' "sample 2nd story view potential" because it's from a different house, with a different perspective and thus an improper comparison.

CONCLUSION

Since the onset of this application process, Joanna and Carlos, have done nothing but try to find a way to move forward by negotiating away, bit by bit, the important features of their home re-model. Beginning with the biggest 'hit', the loss of a rooftop bedroom (something which the Kelly-Thomas added, and which took away a major chunk of the Shanks' significant views), moving to agree not to even walk on their green roof. They were met with increasing demands from the opponents. Nothing but continued take-a ways would satisfy. Their attitude was, to paraphrase JFK, "What's mine is mine; what's yours is negotiable."

The contested portion of the application before you, evidenced by our project

proposal comparison chart,4 Staff photos, and hopefully your site visit to all involved homes, consists of a architecturally designed roof deck that even with privacy walls, is lower than either adjacent neighbor and does not constitute an unreasonable detriment, in fact no detriment beyond a minor impingement, to any significant view corridor. We respectfully ask for your approval.

Very truly yours,

RENA RICKLES

Cc: Pam Johnson, Planner; Melinda Jacob, Joanna Wulbert and Carlos Martinez Attachments: Google aerial of Contra Costa homes Aerial view of trees 778 Contra Costa Design Comparison Chart

3 See Opponents' exhibit ,attached 4 Attached


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ITEM #2- SUPPLEMENTAL ITEMS ZAB 12-12-13 Page 1 of 52€¦ · Complex Flood Zone Issues o Defined...

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