Office of the City Manager ACTION CALENDAR March 10, 2009

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1 Page 1 of 64 Office of the City Manager ACTION CALENDAR March 10, 2009 To: Honorable Mayor and Members of the City Council From: Phil Kamlarz, City Manager Submitted by: Dan Marks, Director, Planning and Development Subject: ZAB Appeal: 2421 Ninth Street RECOMMENDATION Remand Use Permit No to construct a two-story, 1,688 square-foot, detached dwelling unit at the rear of a 6,500 square-foot lot with an existing singlefamily dwelling unit, to the Zoning Adjustments Board to consider a revised design to accommodate a revised driveway and off-street parking layout that meets the approval of the Traffic Engineer. FISCAL IMPACTS OF RECOMMENDATION No fiscal impact. CURRENT SITUATION AND ITS EFFECTS On November 13, 2008, the ZAB discussed and approved the project (5-Yes [Allen, Kashani, Anthony, Judd, Wilson]; 2-No [Matthews and Shumer]; 1-Abstain [Doran]). 1 On December 3, 2008, Lorena Aranda, et. al., filed an appeal with the City Clerk. 2 BACKGROUND The Limited Two-Family Residential District (R-1A) requires a Use Permit to allow a new dwelling unit (BMC 23D ). Up to two dwelling units are allowed on properties in the District, provided the lots contain at least 4,500 square feet of area. In those portions of the District west of San Pablo Avenue (where the subject site is located), the required rear yard may be reduced to construct a dwelling unit, subject to the required finding in BMC 23D C. On July 7, 2005, Gregory VanMechelen, on behalf of Fereydoon Shalileh, submitted an application to construct a two-story, 1,858 square-foot dwelling unit at the rear of the property located at 2421 Ninth Street. Prior to application submittal, the applicant 1 Eight votes comprised the final ZAB decision as former Board Member Arreguin had already resigned from the ZAB and Council Member Worthington had not, as of November 13, 2008, appointed a replacement. 2 Appellants are Lorena Aranda, Victor Reyes, Susan Henderson, David Nold, Mya and David Williams, Tanja Zimmerman, Jeb Evans, Lisa and Brian Joseph 2180 Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) manager@ci.berkeley.ca.us Website:

2 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 2 of 64 ACTION CALENDAR March 10, 2009 shared the project plans with the abutting and confronting neighbors, several of who raised objection with respect to the project s size, its compatibility with the neighborhood, as well as concerns for parking and privacy impacts. The applicant revised the scope of the project and shared the plans with the neighbors in January The neighbors still retained the concerns expressed in In June 2008, the applicant and property owner engaged in mediation with the neighbors. Although the parties did not reach a consensus on design, in response to neighbors concerns the applicant revised the project to: 1) reduce the second floor by approximately 100 square feet; 2) remove all but one of the decks on the second floor; 3) reduce the size and number of windows along the north (left) façade; 4) increase landscaping along the rear property line; and 5) change the roof design from a gabled roof with an average height of 22 feet to a shed roof with an average height of 27.5 feet. The opposing neighbors retained their opposition to these revised plans. The revised project was set for hearing at the August 14, 2008 ZAB meeting. At the meeting, the ZAB opened the public hearing, heard public testimony, discussed the project, recommended the applicant further modify the project in response to the neighbors concerns, and unanimously voted to continue the hearing until the September 11, 2008 ZAB meeting. The applicant submitted revised drawing on September 5, The revised proposal reduced the square-footage of both the first and second floor by a total of 137 square feet, increased the rear yard setback by two feet (2 ), and reduced the average height of the building by three feet, eight inches (3 8 ). At the September 11, 2008 ZAB meeting, the Board opened the public hearing, heard public testimony, discussed the project, and unanimously voted to continue the hearing to October 6, The ZAB strongly encouraged the parties to enter into a new round of mediation. East Bay Community Mediation conducted a second session of mediation on September 22, The applicant, owner, and concerned neighbors were unable to reach an agreement during this meeting. The September 5, 2008 plan revision was, therefore, still the version under review at the October 6, 2008 ZAB meeting. At the October 6, 2008 ZAB meeting, the ZAB opened the public hearing, heard public testimony, discussed the project, and voted on a motion to approve the project. The motion to approve received four votes (J. Anthony, B. Allen, S. Wilson, and R. Judd) and three votes opposed (T. Doran, M. Alvarez-Cohen, and S. Shumer). The motion to approve did not pass, as five votes are required to either approve or deny a project. The Board subsequently unanimously voted to continue the item to the November 13, 2008 ZAB meeting. Page 2

3 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 3 of 64 ACTION CALENDAR March 10, 2009 The applicant submitted a revised plan set on October 29, The October 29 th revision resulted in an approximately 1,688-square-foot, 2-story main building, with an increase in the average height from 23 feet, 10 inches (23 10 ) to approximately 24 feet, 3 inches (24 3 ). The October 29 th Plan shifted the massing of the new main building away from the rear property line. This plan set was submitted along with the staff report for the November 13, 2008 ZAB meeting. At the meeting, the ZAB opened the public hearing, heard public testimony, discussed the project, and approved the project (5-Y, 2-N, 1-Abstain). In approving the project, the ZAB made the findings that: The proposed project is compatible in size and scale with the overall surrounding neighborhood. In addition, while the dwelling units that abut the project on Ninth and Tenth Street are generally smaller-scaled, single-family residential structures, many other buildings in the vicinity (Ninth, Tenth and Channing) are mixed in scale, massing, and are two-family or multi-family dwelling units. The proposed building mass has been articulated to respond to the pattern of development that includes a mix of housing types. The second story has been setback from the surrounding properties resulting in greater building separation between dwelling units and scaled back in order to refine the massing. The roof and ridgelines have articulated the building mass into separate planes instead of one large boxy volume. The exterior finishes are consistent with the building materials found in the neighborhood. The project would create an additional dwelling unit at a residential density permitted by the district thereby maintaining the pattern of the residential neighborhood low medium density development. The neighborhood has an established pattern of a mix of housing types and includes single-family homes with accessory and/or second dwelling units at the rear of the lot, duplexes and multi-family housing on lots of varying sizes. The project includes mature trees and additional landscaping that would screen the new unit and provide an additional buffer from the neighboring properties. The proposed project would cast shadows on three neighboring dwelling units: the existing dwelling unit west (2421 Ninth Street), the dwelling unit immediately north (2419 Ninth Street), and a rear dwelling unit southeast (2424 Tenth Street) of the project. However, impacts on the dwelling unit to the west (on the subject property) would be limited to the summer morning hours and would not impact principal living areas. During the summer, late afternoon and evening hours, the proposed project would shadow the rear yard dwelling unit to the southeast. The dwelling unit to the north would be shaded during the winter morning hours. The proposed project would not substantially affect these dwelling units with shadows during the rest of the day and these neighboring properties would continue to receive sufficient sunlight at all other times. Therefore, shadows from the proposed project would not be concentrated on a single property for a majority of daylight hours and therefore are not unreasonable. Page 3

4 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 4 of 64 ACTION CALENDAR March 10, 2009 The new dwelling would conform to the district s allowable height of 3 stories (2 stories proposed), the lot coverage limit of 40 percent (37 percent proposed), usable open space requirement of 800 square feet (1,978 sq. ft. includes the usable open space for the existing dwelling unit at the front and side; usable open space for the proposed dwelling unit is at the rear of and adjacent to the proposed dwelling unit) and would provide two off-street parking spaces. The requested rear yard reduction of approximately 8 will not be detrimental to the adjacent properties light, air and privacy because usable open space is provided consistent with the District standards, reasonable building separation between dwelling units on neighboring parcels would exist and the rear yard reduction is comparable to existing rear yard dwelling units in the neighborhood where the setback is less than 10. Furthermore, the properties to the north, south and east of the parcel have dwelling units at the front of their respective lots and do not contain habitable space at the rear (with the exception of the rear yard dwelling unit to the southeast), therefore the proposed project will not unreasonably obstruct light and air from the adjacent properties. Pursuant to Berkeley Municipal Code Section 23D , the Zoning Adjustments Board finds that the proposed two-story dwelling unit is compatible with the purposes of R-1A District as follows: A. The project would create an additional residential unit for a total of two units on one lot thereby maintaining the existing pattern of low medium density residential areas (Purpose A). B. The proposed unit would not unreasonably obstruct light and air to the adjacent properties because the proposed height and side yard setbacks are consistent with the District standards. C. The proposed rear yard setback for the construction of a dwelling unit are permitted by District standards as described in the finding below. Pursuant to Berkeley Municipal Code Section 23D C, the Zoning Adjustments Board finds that the proposed rear yard reduction would not cause detrimental impact on emergency access; or on light, air or privacy for neighboring properties for the following reasons: Light the new shadows cast from the proposed project are not expected to cast significant shadows on neighboring dwelling units and will not impact any one property for a majority of daylight hours. Air the residential buildings on the property to the north, south and east of the parcel are at the front of the lot (except for the southeast rear dwelling unit), adequate building separation is maintained and habitable living space would not be impacted. Privacy the subject unit will be separated from the adjacent residences by an existing fence, mature landscaping at the rear of the property, and additional landscaping is proposed that would provide adequate screening for privacy and act as a buffer between the properties. Page 4

5 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 5 of 64 ACTION CALENDAR March 10, 2009 Emergency Access because the rear of the proposed second dwelling unit would be more than 150 ft. from the street, the Fire Department will review and ensure compliance with safety standards. RATIONALE FOR RECOMMENDATION The points of appeal and staff s responses supporting the recommendation to remand the project to the ZAB follow: Issue 1A: Issue 1A: Response: The location and dimensions of the applicant s driveway and parking space impose a significant danger to the occupants in the neighboring property that was ignored in the NOD. The Traffic Engineer requirement applicable to the applicant s plans indicates that a driveway longer than 61 serving two cars must have a minimum width of 10 feet. The driveway at 2421 Ninth St., which is longer than 61-feet, varies between 7 and 8 feet at its widest. The applicant s existing driveway, with a width of approximately 8 feet, is approximately 68 feet in length. It is an existing condition that currently provides vehicle access to one off-street parking space located in the rear yard area of the subject lot. The ZAB-approved project allows the existing driveway to serve as access for the second off-street parking space that is required for the second dwelling unit. The Zoning Ordinance specifies that the Traffic Engineer evaluate projects on a case-by-case basis, to ensure that vehicle-related circulation and parking is adequate and safe. 3 To this end the Traffic Engineer applies the City of Berkeley s Parking, Loading, and Access Standards to determine acceptability of proposed changes in parking spaces. These standards require that a driveway between 61 and 100 feet long, serving one to three cars backing out onto the street, should be a minimum of ten feet in width. Due to the appellants concerns cited in the appeal and the lack of documentation in the project file indicating that the ZAB-approved site plan modification was approved by the Traffic Engineer, staff reviewed the approved plan set with the Traffic Engineer. The Traffic Engineer determined that while the existing driveway could potentially serve as access for two off-street parking spaces, the driveway does not provide the minimum width specified in the Parking, Loading, and Access Standards to serve the two off-street parking spaces. Therefore, the driveway and circulation plan must be redesigned to the satisfaction of the 3 The Traffic Engineer shall determine whether the size, arrangement and design of off-street parking spaces, access driveways, circulation patterns and ingress and egress connections to the public right-ofway are adequate to create usable, functional, accessible and safe parking areas and are adequately integrated with the City s overall street pattern and traffic flows (BMC 23D B). Page 5

6 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 6 of 64 ACTION CALENDAR March 10, 2009 OTHER APPEAL POINTS Traffic Engineer. This effort may require that the driveway be relocated to the opposite side of the lot. Therefore, staff, recommends that the Council remand the project back to the ZAB for consideration of a of revised driveway, parking, and possibly building design to comply with the City s Traffic Engineering standards. The other points of appeal and staff s responses are as follows: Issue 1B: Response: Issue 1C : Response: Although the Applicant s plans show a landscape strip between the driveway and parking space and the neighboring property to the north, 2419 Ninth Street, a recent survey revealed that the north edge of the driveway is on the property line, encroaches onto the property by 3-4 in sections, and is separated where it ends as a parking space by approximately 11 of landscaping from the property line. Project approval applies only to development on the subject property. The approved project plans accurately depict the dimensions of the subject lot, as well as setbacks of the existing home to the property line. Project approval was based on this plan set, and not based on the edge of an existing driveway. Similarly, all new construction (including landscaping strip and parking pad) will be measured from the property line and not from an edge of an existing driveway that may meander over property lines. Zoning staff indicated that it is standard practice to waive the driveway width and landscape separation requirements in order to promote development and housing density in Berkeley. Section 23D E of the Zoning Ordinance requires any paved areas for off-street parking spaces, driveways, and any other vehicle related paving, to be separated from any adjacent rear or interior side lot line with a landscaped strip at least two feet wide. Staff applies this requirement to new vehicle-related paving and not to existing driveway and parking conditions that would not be altered as part of a project. Accordingly, the ZAB-approved plan set includes the required landscaped strip adjacent to the newly approved parking pad, but not along the existing driveway. If a new driveway is required on the opposite side of the lot, as discussed under Issue 1A above, it must include the required two foot landscape strip required pursuant to 23D E. Page 6

7 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 7 of 64 ACTION CALENDAR March 10, 2009 Although staff failed to review the last project revision with the Traffic Engineer, staff has neither waived any requirements for this project, nor has a standard practice of waiving requirements related to driveway and parking spaces. Staff has ensured the implementation of the two-foot landscaping strip where required by Code, and will defer to the professional expertise of the Traffic Engineering staff to review and approve the revised off-street parking layout to ensure a safe and functional parking and circulation plan. Issue 2A: Response: The NOD failed to include the one mitigating condition directed by the ZAB in an attempt to reduce the danger posed by the inadequate driveway or offer an alternative if it is found untenable. The appellants are correct in that the Notice of Determination failed to include the condition or approval added by the ZAB at the November 13, 2008 meeting. The condition requires the applicant to install a fence between the driveway and the neighboring property to the north (2419 Ninth Street). On January 29, 2009, staff sent out a Corrected Notice of Decision to include this condition. 4 The new condition (Number 15 in the attached corrected Conditions and Approvals) states: The applicant shall install a fence, not to exceed six feet in height, along the property line between the driveway and the adjacent neighboring property to the north (2419 Ninth Street). The height and style of fencing is subject to review and approval of the Traffic Engineer and shall be shown on the plan set submitted to the Building Department. Issue 2B: Response: Issue 3: The location of a fence at this location not only reduces visibility for a car backing out of the driveway onto Ninth Street, which is a Berkeley bike boulevard with marked bike lanes, it is hardly a barrier to a moving car. The existing driveway is not adequate to serve two or more cars in order to provide the required off-street parking spaces. The condition of approval requires the design of the fence to be reviewed and approved by the Traffic Engineer, thereby ensuring that safe vehicle ingress and egress be maintained. Reduction in the 20 foot rear yard setback was an arbitrary decision made without consideration of cumulative impacts and is detrimental to the immediate neighbors. 4 The appeal period for the Corrected Notice of Decision expired on February 12, The City Clerk s Office did not receive any new appeals in response to the Corrected NOD. Page 7

8 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 8 of 64 ACTION CALENDAR March 10, 2009 Response: Although the standard rear yard setback in the R-1A Limited Two-Family Residential District is 20 feet, this District is unique in that no separate discretionary permit is required to reduce the rear yard setback to construct a dwelling unit on lots located west of San Pablo Avenue, subject to finding that the unit would not cause a detrimental impact on emergency access; or on light, air or privacy for neighboring properties (BMC 23D D.4). Staff analysis and the resultant findings made by the ZAB, clearly address the impacts of the proposed development on emergency access, light, air, and privacy on the neighboring properties. The finding s inclusion of wording stating the reduced rear yard setback is consistent with the development pattern of the neighborhood, is supplemental to, and not a replacement of, the required analysis. Staff, therefore, concludes that ZAB s finding is not arbitrary, but supportable. Issue 4: Response: Reduction to the 20 foot rear yard setback was arbitrarily granted, made without consideration of cumulative impacts, and is detrimental to the surrounding neighborhood. Consequently, granting the Use Permit is contrary to the goals of the General Plan. As discussed above, staff believes the ZAB finding to reduce the rear yard setback is supportable. In addition, as discussed in the August 14, 2008 staff report, the project is consistent with several policies of both the General Plan and the West Berkeley Area Plan, including: encouragement of infill development; compatibility with the existing neighborhood; encouragement of housing production to meet the regional housing needs; encouragement of higher density housing in areas adjacent to existing public transportation services; promotion of green building standards; and maintenance of residential district providing decent, safe, and sanitary living environments for a wide range of types of household. The appellants have alleged that the approved development exacerbates a neighborhood that already exceeds the low-to-medium zoning of our District. Staff, however, analyzes a project based on the subject property s development standards, and not on possible non-conformities that may exist on other properties within the neighborhood. The subject property is 6,500-square feet with a current density of 6.7 dwelling units per acre and an approved density of 13.4 dwelling units per acre. The approved density is compatible with the 10 to 20 dwelling units per net acre range of the Low to Medium Density General Plan designation. Regardless of residential density, as stated in the October 6, 2008 staff report, the General Plan itself states that, Land use classifications are not intended to be used as standards to determine the maximum allowable Page 8

9 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 9 of 64 ACTION CALENDAR March 10, 2009 density on a specific parcel. Allowable densities and uses in each zoning district are established in the more detailed and specific Zoning Ordinance (General Plan, Page LU-23). Not only is the approved project consistent with General Plan density standard, but it also conforms to the zoning district s development standard that allows up to two dwelling units on a lot with the minimum size of 4,500 square feet (BMC 23D B). Issue 5: Response: Issue 6: The NOD underestimates the impact on neighbor views. Although most development projects will affect a neighbor s view of the sky, trees, etc., staff limits its analysis to impacts of significant views within a view corridor as defined by the Zoning Ordinance. The BMC defines a View Corridor as, A significant view of the Berkeley Hills, San Francisco Bay, Mt. Tamalpais, or a significant landmark such as the Campanile, Golden Gate Bridge and Alcatraz Island or any other significant vista that substantially enhances the value and enjoyment of real property (BMC 23F.04). The appellants cite that they will lose a view of the Bay they have in winter, when the trees lose their leaves. Not one appellant, however, has provided evidence of the Bay view they have. Regardless, the view would be seasonal, as well as filtered through the branches of trees, and therefore would not be considered significant. There are no significant View Corridors within the project vicinity. ZAB s finding that the impact on views is non-detrimental supports this conclusion. The NOD understates the detriment imposed by new shadows on neighbors yards and homes. Response: A sunlight and shadow analysis was included in both the August 14, 2008 and the October 6, 2008 staff reports. As stated in the reports, the majority of new shadows cast from the project will affect the neighboring rear yards and accessory buildings; shadow impacts to adjacent dwellings will be minimal. The ZAB made the finding that this loss is less than significant because the neighboring residences will maintain direct sunlight access for most of the year and that new shadows cast will not be concentrated on any adjacent habitable areas for a majority of daylight hours. Staff believes this finding is supportable. Issue 7: Response: Finding 2.A in the NOD incorrectly found that the proposed project is compatible in size and scale with the overall surrounding neighborhood. As the appellants acknowledge, the overall development pattern in the neighborhood does vary, and contains a mix of one- and two-story singleand multi-family buildings. Several of the properties contain rear yard accessory buildings, and properties both north and south of the project site 2429 Ninth Street, th Street, and 2412 Tenth Street have rear Page 9

10 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 10 of 64 ACTION CALENDAR March 10, 2009 yard dwelling units. Duplexes and multi-family units are located along Ninth and Tenth Street and on the block fronting Channing Way. Across the street from the subject site, dwelling units are sited at the front and rear of the lot. Staff, therefore, believes that the ZAB finding of project compatibility with the overall surrounding neighborhood is supportable. Issue 8: Response: The NOD incorrectly found that the dwelling is compatible with the purpose of the R-1A District. The R-1A District has four purposes outlined in the Zoning Ordinance. Each is listed below followed by a discussion of how the project meets the purpose. A. Recognize and protect the existing pattern of low medium density residential areas characterized by reasonable open and spacious type of development in accordance with Master Plan Policy; As discussed in Issue 4 and Issue 7 above, the project is consistent with the low medium residential density; the zoning district s site development standards, including height, lot coverage, and open space requirements; and the pattern of existing development in the neighborhood. B. Protect adjacent properties from unreasonable obstruction of light and air; As discussed in Issue 3 and Issue 6 above, adjacent properties are protected from unreasonable obstruction of light and air. C. Allow flexibility in the use of property for residential purposes by permitting two Dwelling Units on one lot under limited conditions; The project is for a second dwelling unit on a property. D. In those portions of the District west of San Pablo Avenue, appropriately regulate the rear and side yards for the construction of a Dwelling Unit. As discussed in Issue 3 above, the subject site is located west of San Pablo Avenue. The reduction in rear yard setback is an available incentive to encourage and facilitate the construction of additional dwelling units. This project qualifies for this incentive and the ZAB made the required finding. Staff believes that ZAB s finding that the project meets the purposes of the District is supportable. Page 10

11 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 11 of 64 ACTION CALENDAR March 10, 2009 Issue 9: Response: Issue 10: Response: Finding 4 understated the impact of the rear yard setback on the safety of the neighbors to the north and east. As discussed in Issue 3 above, the safety aspect of a reduced rear yard setback has been taken into account. The approved rear yard setback of twelve feet is greater than the side yard setback of most residential structures within the District. In addition, prior to issuance of a building permit, the project will be reviewed for conformance with all Fire and Building Code requirements to ensure that the structure will not pose an undue fire safety hazard. Staff, therefore, believes that ZAB s finding is supportable. Finding 2.E fails to recognize the gross inadequacy of open space for two family dwellings with eight bedrooms combined. Staff corrects the appellants contention: the existing home has three bedrooms, and the approved home has three, with a flexible office/den that could serve as a fourth bedroom. The total number of bedrooms on the subject property is, therefore, six-to-seven, not eight. Regardless, the Zoning Ordinance does not regulate the number of bedrooms per dwelling unit, nor impose site development standards (including open space requirements) based on the number of bedrooms in a dwelling unit. The R-1A Limited Two-Family Residential District requires a minimum of 400 square feet of open space for each Dwelling Unit (BMC 23D F). The approved project will provide approximately 1,978 square feet of open space, which is more than twice the minimum amount required requirement. Staff believes that ZAB s finding is, therefore, supportable. ALTERNATIVE ACTIONS CONSIDERED Pursuant to BMC Section 23B , the Council may take one of the following actions on an appeal of a Zoning Adjustments Board decision: 1. Affirm Zoning Adjustments Board Decision: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer do not warrant further hearing, the Council shall affirm the decision of the Zoning Adjustments Board and dismiss the appeal, in which case the application is approved. 2. Set for Public Hearing: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer warrant further hearing, the Council shall set the matter for a public hearing. 3. Remand to the Zoning Adjustments Board: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer warrant reconsideration of the application by the Zoning Adjustments Board, or if the applicant has submitted revisions to the application, the Council shall remand the Page 11

12 ZAB Appeal: 2421 Ninth Street ATTACHMENT 5 Page 12 of 64 ACTION CALENDAR March 10, 2009 matter to the Zoning Adjustments Board to reconsider the application, in which case it shall specify whether or not the Zoning Adjustments Board shall hold a new public hearing, and shall identify those issues which the Zoning Adjustments Board is directed to reconsider. (Council must specify issues that the Zoning Adjustments Board is directed to investigate and reconsider. A new decision may be appealed in the normal manner unless otherwise directed by Council. If 60 days pass, and the Zoning Adjustments Board has made no subsequent decision, then the original decision and the original appeal of that decision shall be placed back on the Council agenda in the same manner as a new decision and appeal.) Action Deadlines: 1. Date appeal first appeared on Council agenda: March 10, If none of the three actions shown above is taken by April 9, 2009 (30 days from the date the appeal first appears on the agenda), the decision of the Zoning Adjustments Board is deemed affirmed. 3. A public hearing must commence within 60 days of the date the vote to hold a hearing is taken. CONTACT PERSON Debra Sanderson, Land Use Planning Manager, Planning Department, (510) Attachments: 1: Resolution Exhibit A: Findings and Corrected Conditions Exhibit B: Project Plans dated October 29, : Appeal Letter from the 2421 Ninth Street neighbors dated December 3, : ZAB Staff Report, dated August 14, : ZAB Supplemental Staff Report, dated September 11, : ZAB Staff Report, dated October 6, : ZAB Supplemental Staff Report, dated November 13, : Index to Administrative Record 8: Administrative Record Page 12

13 Page 13 of 64 RESOLUTION NO. ##,###-N.S. REMANDING USE PERMIT TO CONSTRUCT A TWO-STORY 1,688 SQUARE FOOT DETACHED DWELLING UNIT AT THE REAR OF A 6,500 SQUARE FOOT LOT WITH AN EXISTING SINGLE-FAMILY DWELLING UNIT BACK TO THE ZONING ADJUSTMENTS BOARD TO CONSIDER A REVISED DESIGN TO ACCOMMODATE A REVISED DRIVEWAY AND OFF-STREET PARKING LAYOUT THAT MEETS THE APPROVAL OF THE TRAFFIC ENGINEER WHEREAS, on July 7, 2005, an application was filed by Gregory VanMechelen on behalf of Fereydoon Shalileh, requesting approval to construct a two-story dwelling unit in the rear yard area of a lot with an existing single-family dwelling unit located at 2421 Ninth Street; and WHEREAS, on January 30, 2008, the applicant submitted a revised plan set to address neighbors concerns; and WHEREAS, on April 4, 2008, staff deemed this application complete; and WHEREAS, on June 25, 2008 the applicant and property owner entered into a mediation session with concerned neighbors resulting in no resolution; and WHEREAS, on July 31, 2008, staff posted three notices in the project vicinity and mailed public hearing notices to neighborhood groups with an interest in this area, and all property owners and occupants within 300 feet of the project site; and WHEREAS, on August 14, 2008, the Zoning Adjustments Board held a public hearing, and continued the item to the September 11, 2008 ZAB meeting; and WHEREAS, on September 4, 2008, the applicant submitted revised plan in response to neighbors concerns; and WHEREAS, on September 11, 2008, the Zoning Adjustments Board held a public hearing, and continued the item to the October 6, 2008 ZAB meeting; and WHEREAS, on September 22, 2008, the applicant and property owner entered into a second session of mediation with concerned neighbors resulting in no resolution; and WHEREAS, on October 6, 2008, the Zoning Adjustments Board held a public hearing, voted to approve the project, but failed to reach a majority, and continued the item to the November 13, 2008 ZAB meeting; and WHEREAS, on October 29, 2008, the applicant submitted a revised plan set to address neighbors concerns; and WHEREAS, on November 13, 2008, The Zoning Adjustments Board held a public hearing, and approved the application as Use Permit No ; and WHEREAS, on November 20, 2008, staff issued the notice of the ZAB decision; and

14 Page 14 of 64 WHEREAS, on December 4, 2008, Lorena Aranda, et. al. filed an appeal of the ZAB s decision with the City Clerk; and WHEREAS, on January 29, 2009, staff sent out the corrected notice of the ZAB decision; and WHEREAS, on February 11, 2009, the Traffic Engineer verified that the ZAB-approved driveway and parking design did not comply with City standards; and WHEREAS, on March 10, 2009, the Council considered the record of the proceedings before the Zoning Adjustments Board; the staff report and correspondence presented to the Council, and, in the opinion of this Council, the facts stated in, or ascertainable from this information, warrant remanding Use Permit No back to the ZAB to reconsider the project in light of the changes required to accommodate a satisfactory driveway and parking plan. NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley hereby remands Use Permit No for the project located at 2421 Ninth Street back to the ZAB for reconsideration following the applicant s submittal of a driveway and parking plan that meets with the Traffic Engineer s approval. Page 2

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64 Page 64 of 64 ZAB Appeal: 2421 Ninth Street Attachment 8 Attachment 8 to this report, ZAB Appeal: 2421 Ninth Street is on file and available for review at the City Clerk Department, or can be accessed from the City Council Website. Copies of the attachment are available upon request. City Clerk Department 2180 Milvia Street Berkeley, CA (510) or from: The City of Berkeley, City Council s Web site