Zoning board denies homeowners’ request to keep converted garage as open-air accessory structure at 3978 Kenmore Road

The Berkeley Zoning Board of Appeals on Monday, Oct. 13, 2025, denied a requested dimensional variance that would have allowed an open-air accessory structure converted from an existing garage to remain 2.4 feet from the side lot line instead of the five feet required by the zoning code.

The board voted to deny the variance after hearing from the property owners and neighbors. The denial motion cited the zoning standard that the need for the variance was the result of actions by the property owner or previous owners. The roll-call vote recorded the motion as passing with members voting yes: Creel, Benedict, Cyr, Wilner, Branch and Chair McAlpine.

Planning staff presented the case, saying the applicants asked for a dimensional variance of 2.6 feet under the Berkeley City Code (Chapter 138, Article 9, Section 9.15.A.2) for an open-air accessory structure sited at approximately 2.4 feet from the side lot line. Staff noted the property had been subject to a previously issued permit to build a new garage on a combined lot; that permit included a condition requiring demolition of the original garage so the property would comply with the city’s accessory-structure square-foot limits.

Don Vissle, who identified himself as the property owner at 3978 Kenmore, told the board he and his wife had used the older garage space after building a new garage and that they later wanted to convert the old structure to a covered, open-air seating area rather than demolish it. “We’re just shy of 60 year residence in the city... We’d like to make a little outdoor seating area, to make it more useful and keep from getting hit by acorns and stuff,” Vissle said.

Neighbors who spoke during the public hearing expressed support for keeping the structure. A neighbor identified as Sydney at 3992 Kenmore said the structure had been on the lot since at least the 1950s and that she preferred the covered area because it reduced noise and shielding from oak acorns. Another neighbor, Dave Kalish of 3964 Kenmore, also spoke in support, saying the property owners had maintained the site and the covered area was useful for family gatherings.

Commissioners who voted to deny cited two variance standards in particular: that the need for the variance should not be the result of the applicant’s actions, and that the variance requested should be the minimum necessary to do substantial justice. Member Benedict noted the applicants had been required to remove the old garage as a condition of the permit for the new garage; because they did not do so, the board found the need for the variance was created by the owner’s actions.

Planning staff added that the new garage had not yet received final approval and that outstanding building issues remained, including an internal staircase that the building official needed to inspect. Staff said expired permits and outstanding code issues were on file.

The board’s denial means the owners must either remove the converted structure to bring the property into compliance or pursue alternative options that meet the five-foot side-yard requirement (such as constructing a different accessory structure within the setback rules or obtaining the necessary permits and approvals before keeping the structure). The building official and planning staff said they would communicate compliance dates and next steps with the property owners following the denial.

Votes at a glance: Motion to deny dimensional variance for open-air accessory structure at 3978 Kenmore Road — Mover: not specified in transcript; Support/second recorded: Member Creel; Roll-call vote recorded as yes: Creel, Benedict, Cyr, Wilner, Branch, Chair McAlpine; Outcome: denied.