NOMA — The last thing Daniella Kuhn wants to do is demolish three people’s homes, but, through a quirk of the zoning code, it may be the only way for her to legally expand her own living space, unless City Hall takes action.
Kuhn is the onsite landlord of four rent-controlled apartments on the 700 block of Euclid Street. She’s lived in the complex for nine years, and took ownership over her unit and the three others in November.
Three months ago, Kuhn went to City Hall with the intention of adding a second floor to her 800 square foot unit to make room for the family she hopes to build.
She hit a wall.
The area falls in the R1 zone, which forbids new multifamily residences like hers and restricts her ability to build on the property without demolishing all four units that exist and building a single-family home instead.
“I didn’t think there was anything wrong with it, because all of the apartments put together had 3,400 square feet,” Kuhn said. “Adding an extra 1,000 is well below the maximum that a single-family home can be.”
Kuhn, along with land use attorney Chris Harding, put the case to the Planning Commission at its meeting Wednesday, seeking to reinterpret the zoning code to allow the change on the premise that City Hall had an obligation to protect rent controlled housing.
“To read the code as staff is doing is contrary to the core policies of the rent control law, which is to protect rent controlled units whether they are in R1, R2, R3 or R4 zones,” Harding said. “We offer an interpretation that gets you there in either of two ways.”
If commissioners allowed the expansion on the basis that the units were rent controlled, it couldn’t be applied to any unit built after 1979. The change would impact only a narrow band of cases, and would protect the population of rent controlled units.
Harding also sought to convince commissioners that the language of the ordinance itself was ambiguous, and sought a written interpretation by staff.
The move was intentional — if commissioners could be convinced that there was ambiguity in the code, they could order the written interpretation and consider it at a separate hearing.
The decision of that hearing, whether to agree or disagree with the staff’s reading of the code, could be appealed to the City Council.
“Staff does not have final say on what the code means,” Harding said.
The catch was to inspire doubt in the minds of commissioners about the clarity of the code, something which staff did not seem willing to concede.
“If the language is clear and unambiguous, that ends the inquiry,” Deputy City Attorney Barry Rosenbaum told commissioners.
If they felt that there were good policy reasons to authorize the addition, that goal could be accomplished through a text amendment, Rosenbaum said.
Text amendments, however, require a $10,000 to $15,000 filing fee, and be reagendized, costing Kuhn money and time she didn’t feel she had.
“At this point, if I’m lucky and everything goes gangbusters from here on out, I won’t be finished with this place for a year at best,” Kuhn said Monday. “I can’t wait two or three years to figure it out.”
While commissioners seemed unified on their desire to address Kuhn’s problem, consensus on the method was harder to come by.
“The interpretation of the code is correct,” said Commissioner Ted Winterer. “It’s the code itself that’s flawed and needs revision. I think that’s the more appropriate way to do it, and we should do everything we can to ensure that happens in a timely manner.”
Pursuing a change through the interpretation process could open up “multiple cans of worms,” he said.
For others, the definition of “ambiguity” was more loose.
“I’m confused. I’m sorry, that’s just the way it is,” said Commissioner Richard McKinnon. “If I’m confused, there’s a question in my mind.”
Vice Chair Gerda Newbold and Commissioner Jason Parry sided with McKinnon, saying that they would benefit from seeing the arguments for and against the change in writing.
“There are two sides to this argument, and I’d like it laid out,” Newbold said.
In a 4-2 vote, with Winterer and Commissioner Jennifer Kennedy against, the commission requested staff to return with an interpretation.
By the end of the meeting, commissioners also requested the question come back on a future agenda as a text amendment.
There’s no problem in attacking the question through multiple routes, Rosenbaum said Monday.
Kuhn hopes that the matter gets resolved sooner rather than later. She has plans to retrofit the property to make it more energy efficient, take out the lawn in favor of trees and food plants and install solar panels.
It’s more resources than a lot of people would put into rent controlled units, she said.
“It’s going to take me longer than it would take to build a house,” Kuhn said. “If I sold this place today, who do you think is going to buy it?”
ashley@www.smdp.com
