Item #10 September 9, 2009

Item #10 September 9, 2009 Planning and Development Department Land Use Planning Division 2217-2219 Staff Report California Street Tentativee Map 7695 to create five (5) residential condominiums units in two existing two-story buildings. I. Application Basics A. Chronology of subdivision application: Date 06/02/2006 02/25/2008 04/17/2006 08/08/2009 09/09/2009 09/27/2009 Action Request for Local Law Compliance submitted Notice of Local Law Compliance obtained Map Application Submitted Application considered complete Planning Commission hearing Subdivision Map Act deadline B. CEQA Determination: Categorically exempt pursuant to Section 15315 of the California Environmental Quality Act Guidelines: Minor Land Divisions. C. Parties Involved: Applicant Property Owner John E. Gutierrez 2550 Ninth Street, Suite 202 Berkeley CA 94710 Doug Ross, Robert Valencia, Eugene Wong, Charles Stephenson, & Jim Payne 3740 Hidden Springs Road Richmond CA 94803 2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: jharrison@ci.berkeley.ca.us

2217-2219 CALIFORNIA STREET PLANNING COMMISSION Page 2 of 7 September 9, 2009 Figure 1: Tentative Map 7695 File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

PLANNING COMMISSION 2217-2219 CALIFORNIA STREET September 9, 2009 Page 3 of 7 II. Project Description The applicant proposes to convert five (5) dwelling units in two existing detached, twostory buildings into a five-unit residential condominium project. The larger 3,331 square foot building at 2217 California Street contains four (4) dwelling units and four (4) attached single-car garages. The smaller 1,160 square foot building at 2219 California Street contains one (1) dwelling unit and one (1) single car garage. Project statistics (see Attachment 3) prepared for the project are attached to this report. III. Analysis A. Tentative Map Ordinance (Berkeley Municipal Code Chapter 21.16) Consistency: The Planning Commission may approve, conditionally approve, or deny the tentative map in accordance with Berkeley Municipal Code (BMC) Section 21.16.047. According to this section of the Code, the Planning Commission shall deny approval of the tentative map if it can make any of the following findings from BMC Section 21.16.047.A through 21.06.047.G. For each of the findings, staff provides analysis on whether the finding could be made. A: That the proposed map is not consistent with the applicable general and specific plans. B: That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. Staff Analysis: General Plan Housing Element Policies H-1, H-2 and H-4 are applicable to this project. Section III.C of this report contains an analysis of the proposed maps consistency with the General Plan. C. The site is not physically suitable for the proposed density of development. Staff Analysis: The subject property was reviewed and inspected for compliance with the Zoning Ordinance and local laws that govern the structural or fire safety of the buildings; it was also inspected for the safety of their major systems such as plumbing, electrical and mechanical systems. The property received Notice of Local Law Compliance on February 25, 2008. The site currently contains 5 residential units, and the proposed subdivision will not alter the density or development approved for the site. D. That the design of the subdivision or the type of the improvements is likely to cause environmental damage or substantially and avoidably injure fish or wildlife or their habitat. File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

2217-2219 CALIFORNIA STREET PLANNING COMMISSION Page 4 of 7 September 9, 2009 E. That the design of the subdivision or the type improvements is likely to cause serious public health problems. Staff Analysis: The project proposes the conversion of a 5-unit multi-family property held under one title, into 5 individually titled condominiums. This subdivision involves changing the title of a property with two existing structures, and does not propose any developments or improvements that would cause environmental damage or public health problems. F. That conflicts with existing public access easements, in accordance with Section 6674(g) of the Subdivision Map Act, which states: That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision. Staff Analysis: The City of Berkeley Public Works department has verified that the proposed Subdivision will not conflict with any easements of record, or with any easements established by judgment of court. G. That the design of the subdivision does not provide, to the extent feasible, for future passive or natural heating or cooling opportunities in the subdivision. Staff Analysis: The project will not alter passive or natural heating or cooling opportunities since it is limited to the subdivision of existing multiple family residences. B. Condominium Conversion Ordinance (Berkeley Municipal Code Chapter 21.28) Consistency: The Land Use Planning Division issued a Notice of Local Law Compliance for the project on February 25, 2008 in accordance with BMC Section 21.28.100. The notice indicates that the site was inspected and found to include 5 units in compliance with the City of Berkeley Zoning, visible violations of local laws that govern the structural and fire safety of buildings, and the safety of their major systems such as plumbing, electrical and mechanical systems. In order to comply with the applicable local laws, the applicant obtained electrical, building and plumbing permits to remove a partition wall, replace a water heater, repair a porch, legalize a patio cover installed without a permit, and restore two garages at 2217 California Street that had been illegally converted into living space. File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

PLANNING COMMISSION 2217-2219 CALIFORNIA STREET September 9, 2009 Page 5 of 7 The Rent Stabilization Board has reviewed the tenant history of the subject property to verify that the applicant has not violated any tenant rights. The Rent Stabilization Board has confirmed that within the immediately preceding 10 years no owner has filed a statement of intent to go out of the rental business or initiated proceedings to recover any unit at the property. Furthermore, the Rent Stabilization Board has confirmed that within the immediately preceding 5 years no owner has created a vacancy by termination of tenancy using any method listed in BMC Section 21.28.090.B.3. The Condominium Ordinance requires payment of an affordable housing fee at the time of sale of each unit (BMC Section 21.28.050.D). BMC Section 21.28.070 establishes an Affordable Housing Fee to be levied on existing residential units that are converted to condominiums. However, a property is eligible for a reduced affordable housing fee under BMC Section 21.28.080 if the owner(s) agree to limit future rent increases for all tenants at the time of conversion to no more than 65% of the increase in the Consumer Price Index for all Bay Area Consumers after conversion. The exemptions provided for in BMC Sections 21.28.080.B.2 & 21.28.080.C are relevant in this case: B.2: If the property contains three or more units, the affordable housing mitigation fee for each unit shall be capped at 8 percent of the sales price of the unit. C. If the property contains three or more units, the affordable housing mitigation fee for a unit that is occupied by an owner as his or her principal place of residence for at least 5 consecutive years immediately prior to the date of sale, including as a tenant in that unit immediately prior to ownership, shall be reduced by 50 percent, but only if the owner owned and resided in the unit as of June 30, 2010. The owners of the property has agreed to limit future rent increases for all tenants, therefore qualifying for a maximum affordable housing mitigation fee of 8% of the sales price for each unit. There are currently 4 tenants occupying 3 of the 5 units. Both 2217A and 2219 California Street are owner occupied properties and qualify for a further reduced affordable housing mitigation fee of 4% of the sales price per MBC Section 21.28.080.C. The City will issue escrow instruction to the applicant s title company that will accompany the final subdivision map, along with three documents that implement the City s mitigation fee: a promissory note, a deed of trust, and a conversion agreement. When the applicant sells a unit, the applicant will contact the City of Berkeley to arrange final calculation of the affordable housing mitigation fee based on the final sale price for that unit. The fee will be paid to the City of Berkeley Housing Department as part of any and all disbursements from escrow. C. General Plan Consistency: General Plan Policy Analysis: The 2002 General Plan contains several policies applicable to the project, including the following: File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

2217-2219 CALIFORNIA STREET PLANNING COMMISSION Page 6 of 7 September 9, 2009 1. Policy H-1 Low and Moderate Income Housing: Increase the number of housing units affordable to low- and moderate-income Berkeley residents. Staff Analysis: Condominium conversion units provide more affordable ownership opportunities for Berkeley residents. During the first half of 2008 the median sale price of condominiums in Berkeley was $455,000, while the median price of a single family home was $769,500. The median condominium sale price was approximately 40% less than the median price of single-family homes. (Source: City of Berkeley Program Year 2007 Consolidated Annual Performance and Evaluation Report for Housing and Community Development. 2. Policy H-2 Funding Sources: Aggressively develop additional sources of funds for low-income housing, assistance to low-income residents, and implementation of the Berkeley Homelessness Continuum of Care Plan. Staff Analysis: The required affordable housing mitigation fee goes into the Housing Trust Fund, which supports construction of permanently affordable housing for low-income residents. 3. Policy H-4 Rent Control: Take actions to protect tenants from large rent increases, arbitrary evictions, hardship from relocation, and the loss of their homes. Staff Analysis: The conditions of approval require that the applicant offer all existing tenants a lease that shall remain in effect so long as these existing tenants remain in their dwelling unit and it remains their principal place of residence. In addition, the owner of the unit shall not be entitled to recover possession from the tenant for the use and occupancy of the owner or the owner s relatives, as required by Berkeley Municipal Code Section 21.28.120.B.3. The applicant has provided each tenant with a Notice of Tenant s Rights, informing them of these laws. D. Inclusionary Housing (BMC Chapter 23C.12) Consistency: The project is not subject to the Inclusionary Housing requirements of BMC Chapter 23C.12 because it does not involve new construction (BMC Section 23C.12.020). The buildings at 2217 and 2219 California Street were built in 1940. The buildings do not contain affordable units regulated by the City of Berkeley Housing Department. E. Subdivision Map Act Consistency: The Public Works Department has reviewed the form and content of the Tentative Tract Map and has verified that it contains the of content required by the Subdivision Map Act including the subdivision number, the legal address of the legal owner or subdivider, sufficient legal description to define the boundary of the proposed subdivision, the location, pavement and right of way width, grade and name of existing streets or highways, the widths, location, and identity of all existing easements. The File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

PLANNING COMMISSION 2217-2219 CALIFORNIA STREET September 9, 2009 Page 7 of 7 Public Works Department has determined that the Tentative Tract Map is suitable for review by the Planning Commission. IV. Public Notice A public hearing notice: appeared in the Berkeley Voice on Friday, August 28, 2009; was posted at the subject property on Thursday, August 27, 2009; was mailed to the applicant and owner of the subject property on Wednesday, August 26, 2009; and was mailed to owners and occupants of real property within 300 feet of the property on Wednesday, August 26, 2009. At the time of the writing of this report, there have been no responses. V. Recommendation Because of the project s consistency with Berkeley s Tentative Map Ordinance, its Condominium Conversion Ordinance and General Plan, and because it presents minimal impact on surrounding properties, Staff recommends that the Planning Commission: APPROVE Tentative Map 7695 pursuant to BMC Section 21.16.047 and subject to the attached Findings and Conditions (see Attachment 1). Attachments: 1. Findings and Conditions 2. Condominium Plans for Tentative Map 7695 3. Project Statistics 4. Notice of Public Hearing Staff Planner: Lief Bursell, lbursell@ci.berkeley.ca.us, (510) 981-7417 File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_StaffReport_TM7695.docx

CEQA FINDINGS Attachment 1 Findings and Conditions SEPTEMBER 9, 2009 1. The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code 21000, et seq.) pursuant to Section 15315 of the CEQA Guidelines ( Minor Land Divisions ). TENTATIVE MAP FINDINGS 2. Pursuant to Berkeley Municipal Code Section 21.16.047, the Planning Commission cannot make any of the seven findings for denial of the tentative map: A. The project is consistent with the applicable general plan policies because: 1. The project is consistent with Housing Element Policy H-1, which seeks to increase the supply of affordable housing because condominium conversion units provide more affordable ownership opportunities for Berkeley residents. 2. The project is consistent with Housing Element Policy H-2, which seeks to develop additional resources for permanently affordable housing because the required affordable housing mitigation fee goes into the Housing Trust Fund, which supports construction of permanently affordable housing for low-income residents. 3. The project is consistent with the Housing Element Policy H-4, which seeks to ensure tenant protections because, the conditions of approval require that the applicant offer all existing tenants a lease that shall remain in effect so long as these existing tenants remain in their dwelling unit and it remains their principal place of residence. In addition, the owner of the unit shall not be entitled to recover possession from the tenant for the use and occupancy of the owner or the owner s relatives, as required by Berkeley Municipal Code Section 21.28.120.B.3 B. The design of the proposed subdivision is consistent with the General Plan Housing Element Policies H-1. H-2, and H-4, which aim to increase the supply of affordable housing, develop additional resources for permanently affordable housing, and ensure tenant protections. C. The project will not alter the density or development approved for the site because the subdivision is limited to the conversion of a 5-unit multi-family property into 5 individually titled condominiums, and it does not propose any developments or improvements to the property. D. The project will not have negative environmental effects or substantially and avoidably injure fish or wildlife in their habitat since it is limited to the subdivision of existing multifamily residences. E. The project will not cause serious public health problems since it is limited to the subdivision of existing multi-family residences and the building inspection for Local Law File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_Attachment1_FindingsConditions.docx

2217-19 CALIFORNIA STREET PLANNING COMMISSION Page 2 of 3 September 9, 2009 Compliance has confirmed that the building meets health, housing, and safety requirements. F. The project will not conflict with any public access easements. G. The project will not alter passive or natural heating or cooling opportunities because it is limited to the subdivision of existing multiple family residences, and it does not propose any developments or improvements to the property. CONDOMINIUM ORDINANCE FINDINGS 3. Pursuant to Berkeley Municipal Code Section 21.28, the Planning Commission finds that the applicant has completed all remedial actions and provided all disclosures set forth in the determination as to whether the buildings comply with applicable local laws. 4. Pursuant to Berkeley Municipal Code Section 21.28.090.B, the Planning Commission cannot make the findings for denial of the condominium conversion because a review of the tenant history of the subject property has verified that: 1. Within the immediately preceding 10 years no owner of the buildings has filed with the City of Berkeley a statement of intent to go out of the rental business or initiated procedures to recover possession of any unit at the property pursuant to Berkeley Municipal Code Section 13.76.130.A.8 or 9. 2. Within the immediately preceding 5 years no owner of the buildings has initiated proceedings to recover possession of any unit at the property pursuant to Berkeley Municipal Code Section 13.76.130.A.8 or 9, is such proceedings were initiated prior to October 27, 2005. 3. Within the immediately preceding 5 years no vacancy has been created by termination of tenancy under the following circumstances: a. within one year after the service by the owner of a termination of tenancy notice pursuant to either Civil Code Section 1946 or Civil Code Section 1946.1; or b. within one year after a change in the terms of the tenancy noticed pursuant to Civil Code Section 827, including the owner's termination or nonrenewal of a contract or recorded agreement with a governmental agency that provides for a rent limitation to a qualified tenant; or c. by the tenant being constructively evicted because the unit had been cited in an inspection report as containing serious health, safety, fire, or building code violations that were not caused by the tenant beyond normal wear and tear and one or more of the violations had not been abated by the date of the termination; or d. by the tenant household vacating the property and subsequently bringing an action for constructive or wrongful eviction that is pending at the time the application to convert is filed, or that resulted in a judgment for the plaintiff; or e. as the result of a rent increase greater than 10% of the prior rent in effect but for which the tenant would not have vacated the unit, unless that rent increase was approved by the Rent Stabilization Board.

2217-19 CALIFORNIA STREET PLANNING COMMISSION Page 3 of 3 September 9, 2009 STANDARD CONDITIONS 1. The Final Map shall be submitted for certification and shall be recorded in compliance with the Berkeley Municipal Code, Title 21, and with the Subdivision Map Act of the State of California. 2. The owner shall offer and continue to offer the Exclusive Right to Purchase for each rental unit in the building to the tenant thereof upon the terms set forth in the application and as set forth in Section 21.28.060.G.2. If the unit is sold to a person other than the tenant for a lesser price, the affordable housing mitigation fee under Section 21.28.070 shall be based on the price specified in the offer of the Exclusive Right to Purchase, unless that lesser price is supported by a credible appraisal. (Section 21.28.090.C.2) 3. The owner shall satisfy the affordable housing fee requirements by paying the fee, or having recorded documents in a form required by the City, indicating the indebtedness to the City and a willingness to pay at time of transfer as defined therein. For purposes of this Chapter, reconveyance of a unit from tenancy in common ownership to the individual member of the tenancy in common who occupies that unit shall not be a transfer that triggers an obligation to pay any affordable housing mitigation fee required by this Chapter. Subsequent conveyance by the individual member of the tenancy in common shall trigger the obligation to pay an affordable housing mitigation fee required by this Chapter. (Section 21.28.090.C.3) 4. No tenant may be evicted for the purpose of occupancy by the owner, or by occupancy by any relative of the owner so long as the unit remains the tenant's principal place of residence. In the event the tenant does not exercise his or her right to purchase within the time period set forth in this section, the owner may transfer the unit without any price restriction to the tenant or any other person. However, in the event such transfer is to someone other than the tenant, the transfer shall be expressly made subject to the rights of the tenant to continue to occupy the unit as provided for in this Chapter. (Section 21.28.090.C.4) 5. The owner may not opt out of any contract or recorded agreement with a governmental agency that provides for a rent subsidy to any qualified tenant for 2 years from the date the application is approved, except for cause as defined in 24 CFR 982.310 (except (d)(iii) and (d)(iv) thereof), unless the program under which the subsidy is provided terminates. (Section 21.28.090.C.5) 6. Where the owner proposes or intends to make improvements other than pursuant to the foregoing paragraph, the owner shall submit to the Planning Commission an analysis of potential harmful impacts on tenants of the repair and alteration process due to noise, blocked access, temporary displacement, increased rents, or other harms, and a plan for mitigation of harmful impacts. (Section 21.28.090.C.7) 7. The owner shall provide all prospective buyers with a report on the seismic safety of the property. (Section 21.28.090.C.8) 8. A copy of the Conditions, Covenants, and Restrictions shall be filed with the Planning and Development Department prior to approval of the Final Map.

Attachment 2

2217-2219 CALIFORNIA STREET PLANNING COMMISSION Page 1 of 1 September 9, 2009 2217-2219 California Street Project Statistics Total number of separate buildings which will contain all the units Total lot area Total common area Number of floors per building 2 Floor area of each building Number of units per building Total floor area of each unit 2217 California St. 2219 California St. 2217 California St. 2219 California St. 2217 California St. 2217A 2217B 2217C 2217D 2 8,640 sq. ft. 5,700 sq. ft. 3,331 sq. ft. 1,160 sq. ft. 4 residential units 1 residential units 829 sq. ft. 834 sq. ft. 834 sq. ft. 834 sq. ft. 2219 California St. 1160 sq. ft. Attachment 3 Total floor area of project 4,491 sq. ft. All areas are either floor area (described above) or common area Areas as calculated do not exclude area for internal wall partitions. File: G:\LANDUSE\Boards and Commissions\PC\E-Packets - PC Staff Reports\2009\9-9-09\Item 10 Tentative Map 7695\2009-09- 09_PC_Item10_Attachment3_ProjectStatistics.docx

Attachment 4 NOTICE OF PUBLIC HEARING BERKELEY PLANNING COMMISSION NORTH BERKELEY SENIOR CENTER, 1901 HEARST AVE. (AT MARTIN LUTHER KING), BERKELEY PROPOSED 5 UNIT RESIDENTIAL CONDOMINIUM PROJECT TRACT MAP 7695: 2217-2219 CALIFORNIA STREET, BERKELEY Wednesday, September 9, 2009 7:00 p.m. The Berkeley Planning Commission will hold a Public Hearing on the above matter, pursuant to Section 21.16.044 of the BERKELEY SUBDIVISION ORDINANCE (5793-N.S.), on Wednesday, September 9, 2009, at the North Berkeley Senior Center, 1901 Hearst Ave. (at Martin Luther King), Berkeley. The meeting begins at 7 p.m. PROPOSED PROJECT INFORMATION: The applicant proposes to convert five (5) existing dwelling units in two (2) two-story buildings into a five-unit residential condominium project. PROJECT APPLICANT: John E. Gutierrez, 2550 Ninth Street, Suite 202, Berkeley, CA 94710. ENVIRONMENTAL REVIEW STATUS: Categorically exempt under Section 15301(k) of the California Environmental Quality Act Guidelines, subdivision of existing multiple family residences and commercial buildings. ATTACHMENTS: Tract Map 7695. TO COMMENT ON THIS APPLICATION: Response to this notice can be made verbally at the Public Hearing and/or in writing before the Hearing. The public is advised that the Commission may limit the number of speakers and the length of time allowed to each speaker. Persons wishing to offer testimony are encouraged to submit their comments in writing. Written comments should be mailed or delivered directly to the Land Use Planning Division, 2120 Milvia Street, Berkeley, CA 94704. Comments received no later than Wednesday, September 2, 2009, will be included in the Commission agenda packet. Comments received thereafter will be submitted to the Commission as supplemental communications at the meeting. FOR FURTHER INFORMATION: Lief Bursell, Land Use Planning Division, 2120 Milvia Street, 1st Floor, Berkeley, CA 94704; PH: (510) 981-7410, FAX: (510) 981-7420, TDD: (510) 981-6903, EMAIL: lbursell@cityofberkeley.info. LEGAL LIMITATIONS: If you object to a project or to any City action or procedure relating to the project application, any lawsuit which you may later file may be limited to those issues raised by you or someone else in the Public Hearing on the project, or in written communication delivered at or prior to the Public Hearing. The time limit within which to commence any lawsuit or legal challenge related to these applications is governed by Section 66499.37 of the Government Code, unless a shorter limitations period is specified by any other provision. Under Section 66499.37, any lawsuit or legal challenge to any quasi-adjudicative decision made by the City must be filed no later than the 90th day following the date on which such decision becomes final. Any lawsuit or legal challenge, which is not filed within that 90-day period, will be barred. COMMUNICATION ACCESS: To request a meeting agenda in large print, Braille, or on CD or to request a sign language interpreter for the meeting, call (510) 981-7480 (voice) or (510) 981-7474 (TDD). Providing at least FIVE working days notice will ensure availability. Agendas are also available on the Worldwide Web at: www.cityofberkeley.info.