I see a few additional people have entered the room, and this will be the residential appeals committee meeting starting at thr uh a little after I stop speaking now that it's three o'clock.

Meanwhile, if you'd like to uh if you're not the appellant or the applicant are on their team and you would like to speak on at open forum or on the agendized item, you can grab a speaker card here and fill it out and turn it into Steph.

And if you parked at the garage under two fifty Franco Gawa Plaza, I believe it's called the Dalsille Garage, we do have promoted parking.

If you scan the park mobile sheet up here next to Steph, you'll get promoted parking as long as you haven't started your parking session yet.

Thank you, Catherine.

And with that, I would like to call the residential appeals committee of the Oakland Planning Commission for April fifteenth, twenty twenty-six uh to order.

Appreciate everybody coming.

There might be I know some confusion.

Usually we have our regular planning commission meeting on these days, but we have a very special appeal today, so we we swapped in that one in lieu.

And uh with that, um, can we do the roll call?

Uh Lee.

Here.

Commissioner Ahrens is absent.

Chair Randolph?

Here.

You have a quorum.

Excellent.

Um, I don't think there's any committee matters.

Anything we need to raise.

No.

Nope.

So um we are gonna go, I think the we don't need an agenda discussion, so we're gonna go into open forum.

Are there any speaker cards for open forum?

There are no there are no speakers for open forum.

All right, open forum is closed.

Uh and with that, we're gonna go to um new business, the uh appeal in front of us.

And the way it's gonna work is we're gonna have a ten minute staff re uh presentation.

We have ten minutes for the appellants and then ten minutes for the applicants, followed by if there's any public comment.

Is that correct?

Yes, and before we go into the details, do you want me to outline what the item is?

Yes, please.

So the item is nineteen oh one SLMR drive.

The proposal is an appeal of a determination that a change to the approved plans for case file PLN 23090 is considered minor per condition of approval number six.

The revisions include refinements to site grading, such as retaining wall with a maximum height of three feet on the side of the house and a planter and an elevated path on a retaining wall at the rear of the home with a maximum height of two feet.

And the case planner for the city of Oakland is Kubalai Anonley, who will be making a presentation uh before the appellant and the applicant at your pleasure.

Sounds good.

If you want to have staff coming up to start the presentation, thank you.

And just for the record state default name and then my name is Kubulai Inanla.

I'm planner one with the city of Oakland.

Um you guys hear me?

All right, perfect.

Okay, so um, as was previously mentioned, this is an appeal of DET 2600 3 at 1901 Asylomar Drive.

So I'll talk a little bit about the permit history of this site.

Um this uh there was a uh application for a renovation uh which included a creation of the ADU and expansion of the home uh with an upper story addition, which was approved in December 2023 under PLN 23090.

Construction for this project began in August 2024.

Um later on it was discovered that um there was uh an incorrect um lot area submitted on the original planning drawings.

Um so the applicant submitted revisions to bring the project into compliance with FAR requirements in January 2026.

Uh on February 13th, 2026, uh planning staff issued a determination that the revisions constituted a minor change, and then um seven days later, an appeal for that determination was filed.

Um the project itself um is situated on a downsloped lot in the RH4 and S9 zones.

Um and then our determination letter determined that uh the revisions submitted um to an approved and under construction project were a minor change according to the original approvals conditions where minor and major changes are defined.

Um these revisions themselves are grading modifications and the addition of retaining walls uh ranging in, I should say two to three feet high in the side yards.

Okay, um it might be a little bit hard to see on the slides, but uh what we have here are the originally approved site plan and then the proposed revision site plan.

So if you look on the right, um you can see the planter um retaining wall, which is um one of the revisions.

Um and then on the what is the left side of the building, um there's a low walkway uh that has been added as well, which um goes to about a maximum of two feet high.

Uh and then these are the elevations of the revisions.

So you can see on the um bottom left, there is a retaining wall uh at the base of the uh structure, and then the planter can can be seen on the bottom right elevation as well.

Um so I know that the appellant will be uh giving a presentation uh later, but just a very overall summary of what the um uh appellant is alleging is that the um that zoning aired when determining that the revision is a minor change and that the project is not compliant with multiple Oakland zoning standards and procedures, and that the appellant is requesting that RAC overturn this determination, uh halt construction and require a full review of the proposed changes.

Um so I've sort of um broken down this uh appeal into some of its major issues.

Um minor change determination.

Uh city staff found that the proposed revisions are minor because they're limited to small grading adjustments, low retaining walls are from two to three heat, two to three feet maximum.

Um these uh low retaining walls are typical feature of hillside landscaping and development.

Uh and the retaining walls are of a limited nature that they wouldn't require a building permit if they were just if the whenever um retaining walls of this scope are um applied for, um they're permitted by right uh up to eight feet tall.

Um and so the reason that um these revisions were submitted was um, even though this was a project that had been approved and it was under construction, is that the client the applicant wished to bring the uh uh project in compliance with FAR standards.

Um the appellants were uh arguing that the proposed FAR is 0.64, but um uh staff uh review found that um the total floor area under the proposed revisions would be 3,206 square feet, which would result in a 0.43 FAR.

Um this is uh mainly due because mainly due to the fact that the lower level would be considered uh basement and does not count as floor area when calculating FAR.

Um so that leads us to what is a basement as defined in our code.

Um so a lower level is considered a basement when more than 50% of the building perimeter extends no more than six feet above finished grade, and no portion of that lower level exceeds 12 feet above finished grade.

Um so based off of the revisions, staff finds that this low lowest level qualifies as a basement and that the proposed grading for the site is typical of hillside residential landscaping in the area.

Um listed among um the uh appeal package.

There were also lots of um concerns about other zoning standards and procedures, um, but as an issue for this particular appeal, um, they relate to the original project approval, which is currently under construction and not the current determination, which is under appeal, which is limited to the um retaining walls and um uh grading modifications of the site.

Um so our staff recommendation is that um that the RAC uh affirm staff's intermination that the revised project constitutes a minor change, which can be approved administratively.

Um that would and I can open that up to any questions.

I think we're gonna go through all the presentations and then come back, I think, for questions.

All right.

All right, thank you.

Uh and now the appellants.

If you're here, hopefully.

Thank you.

You have 10 minutes.

What's that?

It doesn't start now.

No, no, it starts when you start speaking.

Yeah.

Okay.

Our presentation uh will be up as well.

Then just with the record stage full name.

Good afternoon, Mr.

Chair, committee members.

My name is Robert Martinez.

I represent the Sarony Montclair Coalition, which is comprised of neighbors to this project, including those appealing this decision.

I want to start by saying we're not here to debate a minor planter.

We're here because the planning department is asking you to validate a project that was founded on incorrect data.

As I researched this, it was clear that the city was misled and was given false information by these applicants every step of the way.

There is no dispute that this permit was only obtained through material misrepresentations.

It should be deemed void abnicio.

What this committee should understand is why the city's recent DET 26003 reopens the scope of this entire project.

We respectfully request that you look to the core of this 5,000 square foot house that does not conform with the surrounding community and of the pattern of manipulation by these developers in making your decision.

So my first point is the classification of this being a minor change, because the DET and the staff report consistently refer to these revisions as being a minor change to the approved plans.

But the approved plans were only ever approved to begin with because they're based on documents that are littered with material misrepresentations.

And I don't use that word lightly.

Before this project, the property had a .49 floor area ratio.

This is some more details right there about the about the house before this project started.

With this project, a series of plans, drawings, revisions, and other documents were submitted to the city for approval, mischaracterizing the scope and the size of this 5,000 square foot project and its third story addition in an effort to circumvent the maximum 550% FAR limit.

So I'd like to direct you to attachment A to the staff report, which is the approved plans.

Page one of attachment A is the project data for what was approved.

The lot size was reported as 7722 so that the existing FAR could be reported as 0.47.

So in order to get this through the door, it was misrepresented as having sufficient room to expand the FAR and still stay within the 50% cap.

Because in reality, even a 181 square foot addition, which this was represented to be, would bring this property to a.515 FAR above the limit.

That initial application included a certification by the architect under penalty of perjury, no less, that the building would not be expanded.

Now it's and this wasn't a typo by the architect.

This was a tactical misclassification.

Now it should go without saying that an entire third story addition, as well as enclosing a patio deck to add square footage, constitutes an increase in the building envelope and footprint.

The building envelope is defined by the planning code as the exterior surface consisting of the foundation, walls, windows, roof, doors, floors, and an increase in the building envelope shall be defined as an increase in the exterior size, footprint, or height of a building, or the enclosure or conversion into living area of any open balcony or deck.

This project also attempts to subtract approximately 800 square feet of ADU conversion from the total FAR.

However, by definition, a category one ADU allows no expansion of the building.

A category one ADU, a conversion of existing area, is prohibited from expanding the building envelope of the primary structure with the exception of limited ingress egress not exceeding 150 square feet.

There's the planning code citation to it.

Because this ADU conversion is happening concurrently with an expansion that adds an entire third story and expands the building envelope, it simply cannot meet the requirements for a category one ADU.

State law mandates the approval of valid ADUs, not those obtained through misrepresentations.

They are intentionally attempting to hide the excess floor area by giving the same space a different name.

Unlike a lower level story, which this is, the code permits the floor area of a true basement to be deducted from the total floor area calculation.

However, the lower level story simply cannot meet the definition of a basement.

And the planning code defines what basement space may be subtracted from the FAR.

And it says finished and unfinished understories and basements.

If the height from finished grade at the exterior perimeter of the building to the finished floor elevation above is six feet or less for at least 50% of the perimeter, and does not exceed 12 feet above grade at any point.

So in further manipulation of the code, the applicants have added soil, fill materials, and a planner box to the south wall, added a concrete pathway and a retaining wall to artificially raise the grade alongside the building's east side.

And in doing so, the applicants are hazardously attempting to raise the grade and bury the first floor in order to categorize it into a basement.

Planning code 1713.50 states that the building height is measured from finished or existing grade, whichever is lower.

Here it is the existing natural grade that is the lowest point, not artificial fill added after the fact.

You cannot throw dirt in a box and call the first floor a basement.

But regardless, and even more conclusive is that the building fails the 12 feet at any point rule.

The developer's own drawings, and that's page 27 of the staff report, detail one, drawing A7, shows that the height from finished grade is over 12 feet at the right side of that image.

And it's highlighted in that image for you.

That in and of itself fails the 12 feet above grade at any point rule to qualify as a basement.

The lower level is a story.

It's not a basement, and as such cannot be deducted from the total floor area calculation.

The property sits in the S9 fire safety zone.

The intent of the S9 fire safety protection combining zone is to promote the public health safety and welfare by ensuring that activities and facilities that are located near very high fire hazard severity zones develop in such a manner as not to be a serious threat to public health or safety.

Applicants' deliberate addition of soil to artificially elevate the hillside grade is a clear attempt to circumvent established city planning and safety regulations while creating significant and unacceptable risks.

Every square feet of improper density added through these incorrect calculations increases the evacuation burden of these narrow hillside streets.

Improper grading can destabilize the existing slope, increasing the likelihood of soil erosion, landslides, structural failures, affecting surrounding properties, not just this one, and particularly during heavy rainfall or earthquakes.

It can disrupt natural drainage, leading to runoff, flooding, potential sediment contamination of surrounding properties.

These actions not only endanger neighboring residents and infrastructures, but also demonstrate a willful disregard for environmental protections and public safety standards.

By approving this determination, the city is knowingly ratifying a permit based on false data in a very high fire hazard severity zone.

The city knows the data was incorrect, and it has a mandatory duty to stop the work, not find a way to make it look compliant.

When you drive up Colton Boulevard, you can instantly see this 5,000 square foot mega house sticks out like a sore thumb.

Its setting on the corner of a Silomar and Colton, its bulk, height, scale does not enhance the neighborhood character.

It serves a singular private interest that diminishes the neighborhood character.

The improper dumping to artificially raise the grade on a hillside slope is hazardous and creates risk to surrounding properties.

It is not sensitive to the topography and landscape of this hillside neighborhood.

Enforcement of our code does not deny the construction of legitimate projects or additions.

These rules are in place for a reason.

Not to create a shell game for nonconformity, but to ensure safety, especially in the fire zones, and to protect the integrity of the planning code.

We respectfully request that this committee do three things.

Vacate this minor determination and revoke this the permit that was issued, issue a stop work order immediately and issue a notice of violation, and require a major design review so that these safety and code violations can be vetted in a transparent public forum.

Do not reward this developer's race to building completion that was founded on misrepresentations.

Protect the integrity of the Oakland Planning Code.

Thank you.

Thank you so much.

And then now the applicant has 10 minutes.

Before the applicant presents, could we have you confirm that you represent the appellant?

You indicated that you represent an organization, but that's not who's listed on the appeal.

So for the record, confirming Brian Wong and uh Chris Liberty.

Great.

Thank you so much.

Thank you.

Design review approval and building permit approval.

The project includes an upper story addition, an internal conversion ADU incorporated into a socially conscious manner with gym and office for social interaction between the home and ADU.

With me here today is Bobby, whom I'll turn things over to in a moment to highlight the owner's motivation and vision for the project, as well as the project architect, Cindy Sterry, who will discuss the design and timeline.

Before getting into the specifics, I'd like to set the table regarding the legal standard applicable for evaluating this appeal because appellants' appeal and presentation misses the mark and should be denied.

An appeal must specifically identify an error or abuse of discretion by the planning director or zoning manager, or show the decision is not supported by the evidence.

Appellants have established neither an error nor abuse of discretion by the zoning manager in issuing the determination letter.

Validity of the original project, which seems to be contested, is not reviewable at this juncture.

In issue in this appeal and reviewable is whether substantial evidence supports the zoning manager's determination that revisions are substantially consistent with the originally approved plans, which they are.

Here, there is substantial evidence in the record supporting the zoning manager's determination letter and appellants have not established an error or an abuse of discretion.

Inadvertently, it was believed the property had a slightly larger lottery than in actuality.

This discrepancy was never caught during plan check, which occurred when plan staff were largely remote with a return to office occurring last April.

Upon discovery of the discrepancy, the project team identified minor changes to keep the project code compliant.

As is normal, the potential changes were discussed with staff.

Upon review, staff and the zoning manager found the proposed changes to be minor because first, no changes are proposed, increasing the overall building height, envelope, or massing.

Second, no additional units, stories, or changes to the building footprint or characteristics are proposed.

And third, the retaining walls proposed are two to three feet in height and wouldn't otherwise require even a building permit since they are less than eight feet tall.

Though, since as part of this project, they would be inspected and reviewed by building permit inspectors.

So there would not be any improper or unacceptable construction.

The proposed changes were appropriately found to be substantially consistent with the originally approved plans.

I'll now turn it over to Bobby to discuss the motivation for this project.

Good evening, commissioners and uh planning staff.

I'm Bobby Saklicha, my son and I are co-owners of this home.

When we bought it in 2022, the foundation was tilting to the south.

It was a neglected property.

Our goal was simple but vital to restore it with environmental friendly and to create a space for multi-generational living.

Through our charitable foundation, we witnessed the pain of senior isolation and the Bay Area Housing Crisis every day.

This project is our personal answer to that crisis.

A legalized ADU that allows our family to live together with dignity.

This is social conscious architecture in action, environmentally friendly, fire safe, and dignified living.

Our realtor, architect engineers, fire wise consultants, aren't outsiders.

They live right there in the same neighborhood.

They have designed a code compliant home that respects the integrity of the very hillside they live in.

Finally, we must talk about certainty.

The public comment period for this project closed in November 2023.

We are now in 2026.

If Oakland allows a project to be hijacked more than two years after the legal deadlines have passed, fixing the housing crisis in the city becomes a myth.

To entertain this appeal now, ignores the city's own procedural rules and the spirit of the housing accountability act.

These are two dwellings that have been held up.

These complaints are red herrings, manufactured and malicious distractions designed to cause confusion and doubt when none exists.

They're asking for an illegal do-over at our families' expense.

In fact, one applicant did not even live in that neighborhood when this was approved.

The financial drain of this delay is significant with rising inflation and carrying cost.

But the human cost is far higher.

While the applic applicants enjoy the use of the home, our life is in limbo and our family isolated.

Every day this project is stalled.

The property remains unfinished and vulnerable.

We are ready to turn this blight into fire safe asset for our community.

Please honor the 2023 deadline and minor changes and let us finish our home and move in.

Thank you.

Hello.

My name is Cindy Stay, and I am the architect for 1901 as Silmar Drive, and I'm also a neighbor.

The project started in the beginning of 2023.

At that time, the planning department was still on partial lockdown.

There was the cyber attack and communication was very challenging.

After several false starts, many design adjustments, we were finally able to notify neighbors of the design planned and got planning approval in the fall of 2023.

We then started construction documents, and towards the end of 2024, we got our permit and started construction two years after the property was purchased.

In January 2025, the upper level started to be framed.

This is when I received a call from the appellants asking if we could meet about the design.

One of these neighbors had just moved into the house previously owned by one of the neighbors that had approved the project in 2023.

The other neighbors at the meeting lived in their homes in 2023, but but had not stated any concerns during that time.

It was clear that the meeting was largely asserting opinions on view impact on an approved project well into construction, two years too late.

Nevertheless, the conclusion of the meeting were some thoughts about changing the roof deck railing.

My neighbor agreed, my client agreed to have me look at glass railing glass railing solution, even though it would come at a greater expense and loss of privacy.

This solution was greeted with no little to no comment from these neighbors.

At this time, we also lowered the pitch of the roof even more as another way to satisfy the appellants' concerns.

Shortly after both good neighbor attempts, my client and planning received a revoked permit request from the applicants.

This request was dismissed by planning after reviewing that all accusations were incorrect or false.

A few months later, another request came with most of the same accusations.

Again, planning and I reviewed the accusations and came to the same conclusion on all points.

We did, however, find an error that had been missed by all of us, including the applicant.

Appellant, sorry.

This error affected the FAR.

At this time, all field measurements for the house and the building height had been verified by building inspectors, so we were confident in the accuracy of our calculations.

There are two ways we could approach this problem, each resulting with no change to the architecture.

The approach we're meeting about today was re-establishing the lower levels of basement, going with the original natural grade with minor landscape features, were he able to achieve the requirements needed by code to re-establish the lower level as a basement.

This required very minor edits to landscape features and were already being replaced that were already being replaced or added for the trenching needed for site drainage and the walkway needed to access the ADU.

The other way we could go is taking more of the basement and using it to make a larger ADU.

This conversion would have would be ministerial and not subject to neighborhood notice that is as it is an internal conversion.

It would only require in-house approval from planning and building.

This vetted option is based on the state of California government code 66323.

With both approaches, the square footage would be excluded from the FAR calculation and our project would comply.

We could do either.

As mentioned, appellates assert numerous issues with the underlying originally approved project that are not reviewable in assessing the merits of this determination appeal.

As noted in the staff report, and as by the project architect, the entire lower level could be an internal conversion ADU because there's no size limit for a state internal conversion ADU, which are allowed in the S9 overlay.

And under state law, the entire lower level ADU could not count towards the floor area ratio limit.

While possible, that is not sub that is suboptimal from a socially conscious design perspective, including a gym and office on the lower level, create space for interaction and engagement between the two units.

If the entire lower level were an ADU, there wouldn't be a neutral space for the building in the building for the shared use.

Before closing, we want to revisit the applicant's voluntary limiting of construction hours.

Upon hearing desire for the project to be completed from other neighbors and their support letters, it no longer makes sense to limit construction, and we will return to the city's standard construction hours in post by the condition of approval number 27.

As presented, the zoning manager's determination that the proposed revisions are minor is supported by substantial evidence in the record.

And appellants have presented no evidence that there was an error or an abuse of discretion by the zoning manager in making such determination.

The lower level has historically been a basement and will remain one with the proposed revisions.

The proposed revisions do not increase the building's envelope, floor area, footprints, or characteristics.

The proposed retaining walls would not otherwise require a building permit, and the project is entirely code compliant under the housing accountability act.

Finally, we know appellant Brian.

Can I finish my statement?

Yeah, go ahead and finish your statement.

Uh appellant Brian Wong is a design professional, and we would assume he knew what we're buying when the story polls were up when he purchased it, and that the other appellant noted that they never had a problem with this project until it was deconstructed and realized that they got a better view of the bay.

Views are not protected.

This pro appeal should be denied.

That concludes our presentation, and we are available for any questions.

Thank you.

Thank you.

Is there any public comment?

We have one speaker.

Go ahead.

Wait, if you want to come to the front, and you will have two minutes to speak.

So many folks, I'm the only speaker.

It's kind of crazy.

Um thank you for being here today, Commissioners Whit Turner, on behalf of the Housing Action Coalition.

We are a member supported nonprofit dedicated to building more homes at all income levels to alleviate the housing crisis.

Here to strongly oppose this appeal and urge the committee to uphold the zoning manager's determination.

Um we're in the middle of a housing crisis.

We don't have enough homes, rents are too high, people are getting priced out of the communities they built their lives in.

Um an ADUs like this are one of the most important tools we have right now to add homes in existing neighborhoods, and they're working.

Uh especially when we look at multi-generational living and socially conscious home environments.

Um to allow an appeal at this stage, well into construction, undermines the concept of administrative finality and creates an unmanageable level of risk for anyone attempting to build in Oakland and help us alleviate our housing crisis.

Uh the city's already confirmed this project meets all objective standards, and turning a resolved administrative discrepancy into a platform for obstruction sets a dangerous precedent for ADUs and building in general, um, building housing in general in Oakland that it so desperately needs.

If an entitled nearly finished home can be stalled by a late arrival neighbor's complaints, then no project in the city is safe from arbitrary review and delay.

So we urge you to protect the integrity of this entitlement process, support staff's recommendations, and please uphold the term the determination, pardon me, and deny this appeal.

Thank you.

Thank you.

Up there's one more public on.

Do you have a can you fill out a speaker cart, please?

Okay.

Both of you need to fill out a speaker card.

And just to remind the audience, this is for our individuals who are not part of the applicant or the appellant team.

Are you uh to make public okay?

All right.

And then for the record, state your full name.

Uh Joshua Sanchez.

Good afternoon, committee members.

Thank you for your time today.

My name is Joshua Sanchez, and I live at 6506 Colton Boulevard, directly behind uphill to 1901 as Illumar Drive.

I'm here to help represent our neighborhood and can hopefully help give a voice to some of my neighbors that feel intimidated by the process and we're not able to make it here today.

I'm here to respectfully request our your reconsideration for this project based on several significant concerns that I believe deserve your attention, which have been stated.

First, regarding public safety.

This project would add considerable density to our area.

And given our fire hazard designation, I believe we need a comprehensive fire evacuation study before moving forward.

In these high-risk zones, thorough planning for every additional unit is crucial for our community safety.

Second, I'd like to address neighborhood compatibility.

According to the city's design review manual, new construction should be compatible with existing neighborhood character.

This proposed three-story megastructure would be substantially larger than surrounding homes and represents a significant departure from our area's established scale.

I am also I am also concerned about the classification of what appears to be a full story as a basement space.

From the street view, this presents as a three-story structure that would significantly impact not only my view, but also many others and the privacy of multiple neighboring properties.

Given the scope and potential impact of these changes, I respectfully believe this project warrants a major design review rather than being processed as a minor modification.

Can I finish that?

That's okay.

All right, thank you.

Thank you.

All right.

Commissioner, do you have any questions or thoughts?

Questions, maybe questions first.

Yeah.

I have a handful of questions.

Um some of them are not necessarily um uh necessarily germane to um persuading me uh one way or the other on the appeal, but I just wanted to get an overall picture.

Um as far as what the appellant um asserts were the deviations to the originally approved plans.

Was that just the transparent balcony issue?

Is that applicant or staff?

Um I think this would be to the appellant the appellant right.

Just to be clear, I believe it was the applicant's architect who spoke to that balcony.

So I just want to make sure you're but I think in in the list of uh the appellant and some of the materials that they provided us had alleged that there were deviations from the originally approved plans, and one of them was and in is that just the transparent balcony you're referring to, or is it I know that there was uh you have to go to the microphone like in order for to be captured.

So uh I believe there was uh discrepancy between the height of that that wall on the balcony wall, privacy wall, right?

And whether it was glass versus something that was a little bit more um not as transparent.

Um was the question was was it whether it was strictly limited to that wall?

Yeah, did you have any other did you did you are you asserting that there were any other deviations to the originally approved plan other than the the balcony issue?

Well, that would be the entire FAR, it would be the size of the lot, of course.

Um it would be um gosh, I well uh to touch on something that was um was the entire notice process of the initial appeal.

Um I believe the appellants even paid the four or five thousand dollar fee to appeal the initial decision before that was vacated and they lost that opportunity to to present those arguments.

So this whole um discussion about the limited scope that we're here to talk about today and this being a a planner wall, um, they didn't have that opportunity to braise those issues.

So the the argument that they didn't raise those issues until now is a specious argument.

It's not it's just not true because they did.

Okay.

Um yeah, yeah.

Um that that's it.

That's my only question for you.

So um the and the but that has nothing to do with the uh the FAR issue, right?

That was purely the lot size that was that um caused the error in the FAR calculation?

Is it just was it just the lot size or were there other reasons?

Just the one there was a lot size discrepancy that wasn't caught.

Uh when it was caught, there were changes made to the project uh to address it, but just to loop back to the changes.

Uh the original project had a transparent wall on the west facing side.

It still has a transparent wall there.

Uh guardrail, technically, I want to um on the east and north facing side elevations, those are privacy walls.

Uh that deviation, the deviations there pertain to lowering of that north facade privacy wall, seven feet.

It was supposed to be, it was approved originally as seven feet under this revision, and as it was constructed, it was constructed five feet tall, trying to lower it to make better for the neighbors.

And there was also a wind screen on the west elevation.

Uh that was removed and it's now a five-foot return there to align with the uh north facade there.

So those were the only deviations with respect to the guardrails there, uh, and then the lowering of the roof.

Okay.

And I'm assuming the player doesn't have any disagreement with with that characterization.

Okay.

Um, and how was the lot size?

How big was the lot size uh error in terms of the number of feet?

About a few, uh it was 7700 and it was 3880, so just a few hundred.

Uh-huh.

Okay.

And had I just note had this been discovered at the incept, you know, the design would have been tailored to achieve the same programmatic outcome.

Okay.

Um, I think I have some questions for staff as well.

Um so what is so, in terms of what's considered the finished grade after um adding the retaining wall and the planter, is that finished grade still lower than the street level in front in the front of the house?

So what is so in terms of what's considered the finished grade after adding the retaining wall and the planter, is that finished grade still lower than the street level in front in the front of the house?

Yes.

So the we don't have the site plan in front of us, but the it's a downsloping lot.

So the um retaining walls are going to be added on the uh the one of the side yards and then the back of the uh property.

So that would be far lower than um the front of the house, yeah, street level.

Okay.

And would it be reasonable to assume that they if they submitted the revised application now with the revision that it would be approved?

Uh yeah.

So as a part of the determination, they well, yes, that they have submitted the revised plans already.

And um if we are um see uh determining that they are minor changes, um that would be approved uh ministerially.

Right.

But just to just to be clear, like if they had sort of if this were in brand new application and they submitted it today as it is with the correct FAR and the basement designation, it would just it would just be approved ministerially.

Yes.

Okay.

Um I think those are my questions for you.

And then so the the and for the city attorney, the the if it's a one-one vote, does this is the appeal denied?

You need two votes.

Uh so both of us are uphold the appeal.

Whichever decision is reached, it requires two votes.

Yeah.

Um so the so if the appeal was upheld, it would go to a major design review?

Is that accurate?

Does staff want to speak to uh what happens if the appeal is upheld?

So if the appeal is upheld, um then the uh applicant would have the opportunity to submit under a major revision to the project, um, which then they would be subject to our ODS, um, which uh That's objective design standards.

Yes.

Um which if they are conforming with those, then staff could approve that ministerially as well.

Okay.

So it would still be approved ministerially even if the appeal was um following review of the the project.

Okay.

Yeah.

Then another appeal could be filed because it's a new application.

Um I don't believe that they can that an appeal can be filed for a ministerial um uh approval.

Okay, those are my questions.

I don't know if you want to questions.

I do I do have a bunch of questions um and some of them might have been answered in the documents, but I think it's maybe helpful to have it on the record and in in public as well.

But this is this is for staff.

Um what criteria or internal guidance do you use to distinguish a minor change that can be approved administratively from a modification that would come back for discretionary review?

Um sure.

I can read directly from the conditions of approval um that uh defines that.

Um so this is called out in our determination letter.

Um so a minor change um to the approved project um plans, conditions, facilities, or use may be approved administratively by the director of city planning.

So that is often the zoning manager making that call at their discretion.

Um major changes to the approved projects, plans, conditions, facilities, or use shall be reviewed by the director of city plan and determ planning to determine whether such changes require submittal and approval of a revision to the approval by the original approving body or a new independent approval a permit or approval.

Um so to sum up, it's um mainly at the discretion of the um director and zoning manager.

And you you determine obviously then that that this revision complies with the code and must be approved ministerially under state law as well.

Yes.

Okay.

The appellants assert that a total building area of around 4900 to 5,000 square foot.

Um where do their calculations differ from staffs and why does staff consider why do you consider their methods inconsistent with the code?

Um well, their figure, I I can let them speak for themselves, but um are their figure I am guessing would include the basement um or portions of the basement and ADU in their calculation, uh which we are not including as a uh floor area ratio calculation.

And that's based on code and state law?

Yes.

Okay.

Um if the ADU area were counted in FAR, would that be consistent with state law or would the city be at risk of non-compliance?

Uh a the ADU um in terms of uh to be compliant with state law, it cannot be counted uh as FAR.

Yes.

Okay.

Just wanted to make that clear.

Um the appellants argue that because this is a category one ADU, you cannot rely on any expansion of the building envelope to justify ADU or FAR exclusions.

Can you explain how category one status is being applied here and whether the current envelope is consistent with that category as defined in I think section 17.103.080?

Uh yeah.

So um the that um regulation applies to the uh ADU.

So if the building envelope uh was being expanded for the ADU where the ADU was going to be placed into the expansion, um that would uh that's what that regulation is applying to.

Uh whereas in this uh case, the basement is being converted um into the ATU ADU, the already existing um part of the structure uh and the expansion is occurring on the uh upper level.

Okay.

Um if the building envelope height and footprint are unchanged from the 2023 approval, uh what additional oh, this is for the app appellants, so maybe yeah, shift to the appellants.

Thank you.

Okay, thank you.

So for the appellants, I have a couple questions for the appellants.

Um if the building envelope height and footprint are unchanged from the 2023 approval, what additional no physical environmental impact do you believe is caused by the grading and low retaining walls themselves?

So can you can you say the first part?

Sure.

If the building envelope height and footprint are unchanged from the 2023 approval, what additional physical environmental impact do you believe is caused by the grading and low retaining walls themselves?

Well, I don't think it's unchanged.

I think there's a material difference between what was approved in 2023.

Uh again, we're only adding 181 square footage uh square feet.

Um I don't believe the building envelope was included in that approval because there's an express statement that this project is not expanding the building envelope.

Um so I disagree with that initial part.

Um with respect to the to the dumping, um my understanding is where this is being dumped, and it looks it looks to me in the pictures that the applicant uh had up to it it is right up against that fence that borders the neighboring property.

Uh I'm not sure if a grading permit was required for this.

Um if they're just I don't I don't know what what kind of oversight at all uh is happening with with dumping on both sides.

So if it's not done properly, uh improper and improperly engineered soil addition and artificial grade manipulation, if there's heavy rainfall, if there's earthquakes, could um impact not only that that land that was dumped in that specific area, but it could slide down to the neighborhood because this is a 38% slope.

It's not it's not insignificant.

And the property that's pictured in their slides, uh that this subject property is towering over, uh, that's where that land is being dumped.

So we we don't know.

And I think that's what what this whole purpose is is we can't just give complete un, you know, you know, no oversight at all to allowing them to say we did it properly.

I think just it needs to be done properly.

And in terms of the uh the views, right?

Uh they're saying that conclusively that views and and what they're doing with the artificial grade manipulation is being done properly, but there's no oversight to it.

Um so what I think here, especially in a S9 um zone is this could set dangerous precedent for the city.

Uh if this is approved and and approved as a minor uh determination and as minor uh stamp of approval, uh in what way is is that gonna this manipulation of the code to add more basements and and other three-story properties in high fire safety zones, you know, who who else is gonna do that in the future?

So it's not that they're they want this whole building torn down.

That's not what's being asked here.

It's just that if they're gonna be doing something, it's gotta be within the requirements of the FAR, it's gotta be within the requirements of uh at least uh a grading permit so that to ensure that that's done properly as well.

So I know you raised the S9 fire safety in intent, and you just mentioned it at the end as well.

So beyond citing the general intent of the S9 fire safety zone, can you identify any specific objective S9 standard that you believe these grading and retaining wall revisions failed to meet?

I mean, I I don't have the I don't have the code in front of me.

I I can pull it up and I can thump through it, but uh other than what I've discussed, and I mean the whole purpose of the this um additional zone is to ensure that there's uh uh safe evacuation in case of fires, ensure um you know it promotes the um safety and and well-being of in the event there are landslides, if in the event there's fires, uh heavy rainfall that needs to be done.

If you're part of the uh yeah, T and then just city full name.

Yeah.

Hi, my name is Brian Wong.

Uh I live uh at 6507 Saroni.

Um just to answer that question, uh, whether or not um the safety S9 code is affected by density, it's a very simple uh answer.

And this answer is parking.

So you need a certain amount of uh parking spots per uh density of square footage of per house.

The bigger the house, the more people live in it, the more parking.

That naturally creates traffic congestions in streets and whatnot.

So ultimately, the reason why it gets dangerous uh in the hills is because as you go higher up and in and areas around, the roads are actually pretty small.

And in order to get to these houses, you need big fire trucks.

And big fire trucks need, you know, space, not a lot of parking, a lot of cars in the way.

And that's why density uh matters.

And uh that's how approving a house that's too large for the lot can create uh a fire hazard zone.

Um but yeah, that's basically my response to that.

Good.

Thank you.

Those are all the questions for the appellants.

And I have one question with the applicant.

Um if you want to want to comment.

Um before you pursued the grading and retaining wall approach to qualify the lower level as the basement, um, did you seriously or did you consider other ways of achieving FAR compliance, um, maybe reducing the main or upper level square footage, shrinking the footprint, reconfiguring lower level space between ADU and non-ADU.

And if so, why were those alternatives rejected?

Other alternatives were looked at, but they did not achieve the programmatic design and outcome that the applicants were looking for a socially conscious uh multi-generational living home.

Um they're shifting bulk elsewhere creates impact elsewhere.

There's it's a zero-sum game.

And so this was the most minimally intrusive way as determined by staff when they established that there were no in view impacts.

Um you may have noticed in the brief submitted, staff met with both the appellants.

Uh I may have been actually 6506 Colton and 6507 Soroni.

Uh the two houses that you just heard from, the public commuter and Mr.

Wong, and staff conclusively said there are no view impacts from this project.

So, yes, while there were alternatives considered, this one was a minimally intrusive, impactful approach confirmed by staff.

Perfect.

Thank you.

And then um, I know I've said it before, I'm not an attorney, so this question might be a little weird, but um maybe for the city attorney or staff.

Um I did some research on um best at rights and retroactive retroactivity risks.

So the the underlying project was approved in 2023, no appeal was filed.

A building permit has been was issued in 2024, and as we heard, substantial construction has been completed and is underway.

Uh as far as I understand under California vested rights doctrine, once the landowner has relied on a valid permit and perform substantial work and incurred substantial expense, they've generally acquire a right to complete the project as approved.

So given the unappealed 2023 approval, the issued permit and a substantial construction, uh what vested rights does the owner now have and what overturning this determination risk of vested rights or retroactivity claim against the city?

Good afternoon.

This is Brian Mulrie from the city attorney's office.

That's an excellent question.

Um we did take the position with the appellant early on that the project was vested and that there actually wasn't a statute that they were exceeded their statute of limitations to challenge the actual project.

So in theory, I mean, you can ask the property owner, but I they didn't really need to bring this revision necessarily because they had a project that not only was vested but under government code 65009.

Um any decisions made pursuant to the uh planning code are uh there's 90 days to set aside or challenge that after um the administrative appeal has run.

So um they had exceeded their state statute of limitations as well under government code 6509.

They tried to argue that they can try to revoke the permit through OMC section uh chapter 17.152, which is a revocation proceedings, but recently we actually went to court on that issue and um the court found that 6509 and 17.132 um are the proper challenge procedures when you challenge a zoning administrator or planning director's decision.

So um so uh the property owner in theory really didn't have to do anything and could have kept proceeding with their project, knowing that um the statute of limitations had been exceeded.

I think there's some good policy reasons behind that too.

They want the state legislature wants to create certainty in development.

Um and if there's a long uh challenge period on development, then that will chill investment.

Um, you know, think of a multifamily project or whatnot.

I'll also just add too that we would view this as a housing accountability act project, given the fact that it is two units, um, an interior ADU and the single family home.

So those are those are some of the positions we've taken from a legal standpoint.

And then one more question for you based on what you just said.

Um I know that the commission has talked a lot about ADUs.

We made some changes to the ADU codes um to comply with state laws.

The state has, as you said, is really focused on this and other housing uh pro housing focused builds.

Um in addition to the vested rights risk we just talked about, and what is the risk of the city of Oakland being in violation of state law?

There's a substantial risk if we were to deny this project based on floor area ratio that we if we counted the ADU toward that floor area ratio.

HCD, and they've done a handbook on this as well.

HCD has made it clear in their interpretation of state law, and state laws very clear as well that a 66323 government code section 66323 uh ADU, which this is, um, you can't we have to ministerially allow it and regardless of floor area ratio.

So um we can't count or you can't count floor area ratio or say that an ADU has tripped floor area ratio and then deny it on that basis.

That would be problematic.

And I think there was some discussion here this evening about um, well, they're it they're exceeding the footprint or going beyond the building envelope.

This was um again, as staff said that they're not exceeding the building envelope in this area.

The ADU is not what's causing the building envelope to exceed.

So we interpret it as being within the building envelope.

Okay, thank you so much.

Those those are all my questions.

Um thank you.

Do you want to yeah?

I just had one more for the appellant.

Um so uh if you were to win this appeal and then there was a major design review and the the staff just approved it ministerially.

Do you see another like what what would you pursue as a remedy after that if if you have any plan?

The city attorney.

I might interrupt just to say I'm not sure that that question is pertinent to your decision making process today.

Okay.

Well, if yeah, I don't I don't want to open any door to any any issue there.

So maybe I'll just withdraw that question.

But any thoughts or comments.

Um I just I appreciate that the applicant, you know, um had other remedies available around this issue and and still wanted to go through this process.

I mean um there was the vested interest, the statute of limitations uh route, um, they do internal conversion under state law.

Um and you know, there were I appreciate there are a lot of compromises that they've made and they've offered, they've gone through proper outreach to neighbors at the time of application.

Um I'm persuaded that you know there's there's not a change to to the building envelope or height.

Um, yeah, I mean, I I feel like um and and on the narrow issue, I feel like um this this the staff determination was was correct.

All right.

Um thank you for that.

I I appreciate everybody coming today, and I I think I agree with Commissioner Lee.

The question before us today is is very narrow.

We were being asked whether the zoning manager correctly treated the 2026 grading and low retaining wall changes used to make the lower level qualify as a basement and thus exclude it from FAR as a minor change to a vested 2023 approval consistent with the objective basement FAR rules in the planning code.

Um I think for for an appeal to be successful, the appellants must show an error or abuse of discretion.

So based on the presentation and evidence provided uh here today, I cannot find any measurement or code interpretation errors by staff.

So I I agree with I think Commissioner Lee that I I can't see a reason to um uphold the appeal and overturn um the staff um determination.

So maybe with that, does it make sense to do a vote?

Is there a mo is it do we do a motion?

Can we do a motion?

Okay.

Do you want to do a motion?

Um make a motion to um uphold the staff determination and um um reject the appeal.

Uh might I ask that you reword the motion to align with the staff report.

Would you like to look at the staff report on page I don't know what pages is?

I have it written for you.

Would you like me to read it to you and see if you agree with that?

Sure.

A motion to affirm staff staff's environmental determination and two affirm staff's determination that the revised project constitutes a minor change which can be approved administratively.

Great that the motion does not.

Motion by Commissioner Lee.

I guess I can second it.

And a second by Chair Randolph.

We'll call vote, please.

Commissioner Ahrens is absent.

Commissioner Lee?

Yes.

Chair Randolph.

Yes.

Motion passes, and this decision is not appealable.

Thank you.

So the appeal has been denied.

Correct.

The motion passes.

So the uh appeal is denied.

The staff determination is upheld.

Great.

Thank you for that.

Um and I don't see any other agenda item as far as I know.

So uh we will adjourn uh at 4 05 p.m.

Thank you.

Yeah, small world.

Thank you.

That's so funny.

Although you didn't find it.

No.

Oh, you did?

Yeah.

That's funny because more.

Yeah.

Let me also say that's one.

Oh, yeah.

I think I'm actually.

Can you go ahead?

Yeah.

I wanted to do that.

Oh no, no, it's okay.

But you would have one.

Do you want to copy anything else?