McNiven v. City of Berkeley CA1/3

Filed 11/19/24 McNiven v. City of Berkeley CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CAROLYN McNIVEN, as Trustee, etc. Plaintiff and Appellant, A169867 v. (Alameda County CITY OF BERKELEY et al., Super. Ct. No. RG18921578) Defendants and Respondents; MICHAEL DREYFUS et al., Real Parties in Interest and Respondents.

In 2017, the City of Berkeley and its Department of Planning and Development (collectively, the City) ministerially issued Karen and Michael Dreyfus a building permit to remodel their home. In 2018, Carolyn McNiven sought a writ of mandate challenging the permit. (Code Civ. Proc., §§ 1085, 1094.5.) Five years later, the trial court concluded the petition was moot. We agree and dismiss the matter as moot. BACKGROUND In 2016, the Dreyfuses purchased a property on Hawthorne Terrace (the home). The home is on the corner of Hawthorne Terrace and Vine Street and shares a yard and patio with McNiven’s home; McNiven and the home’s

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former owner promised to make no material alterations to the shared lawn and patio, a covenant that runs with the land. The home was in bad shape when the Dreyfuses purchased it, and they planned a remodel. In April 2017, they applied for a building permit to remove the den, expand the kitchen, add a family room, and remodel a second-floor bathroom. The City sought additional documents and revisions before ministerially issuing a permit in September. In November, the Dreyfuses submitted revisions, adding new windows and doors. The City questioned the revised plans because they showed Vine Street as the lot’s front. The City stated that a corner lot’s front was the narrower of the two intersecting lot lines, so it believed Hawthorne was the lot’s front and noted the Berkeley Municipal Code thus required a 20-foot setback. The City asked if the Dreyfuses planned construction in the required setback. If so, the Berkeley Municipal Code mandated window and door replacements to be “like for like.” The Dreyfuses responded the Vine Street frontage was narrower, and their plans were correct. After more revisions in 2018, the City ministerially approved a final permit in July 2018, apparently using Hawthorne as the lot’s front. McNiven tried to stop the remodel. In August 2018, she sent the City two approximately 60-page PowerPoints “appealing” the nonappealable permit. She argued the Dreyfuses planned work in the Hawthorne setback and were thus required to apply for an Administrative Use Permit (AUP), which would in turn trigger notice to neighbors and the Landmarks Preservation Commission (LPC). She also applied to have her and the Dreyfuses’ homes designated as landmarks. The City reviewed McNiven’s complaints. A city planner and city planning manager investigated but concluded the plans were code compliant.