Subject: 3095 Telegraph Avenue, Administrative Use Permit No

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1 Office of the City Manager ACTION CALENDAR March 23, 2010 To: From: Honorable Mayor and Members of the City Council Phil Kamlarz, City Manager Submitted by: Dan Marks, Director, Planning & Development Subject: 3095 Telegraph Avenue, Administrative Use Permit No RECOMMENDATION Conduct a public hearing and either: (1) adopt a Resolution approving an Administrative Use Permit (AUP) No to establish a commercial laundromat within a mixeduse building comprising five commercial tenant spaces and ten residential condominiums; or (2) direct staff to return on April 20, 2010 with a resolution and findings to deny the AUP. FISCAL IMPACTS OF RECOMMENDATION None. CURRENT SITUATION AND ITS EFFECTS On January 28, 2010, the ZAB held a public hearing and denied the application by a vote of (Absent: J. Anthony). On February 9, 2010, staff issued the notice of the ZAB decision. On February 23, 2010, the City Manager requested that the City Council certify the ZAB decision and set the matter for public hearing. Council set the matter for hearing on March 23, This hearing date coincides with an anticipated action date set forth in a contingent agreement not to sue that was entered into between the City and applicant to avoid potential litigation relating to a building permit issued for the laundry. BACKGROUND Key dates and actions associated with the project include: November 25, 2008: PWS Laundry submitted building permit no for the tenant improvement for the laundromat. A Zoning Certificate (ZC) was issued authorizing the use of the new tenant space based on previous use of the project site as a laundromat. May 21, 2009: Staff received an inquiry from Susan Malone, owner of an upstairs condominium unit, regarding the construction activity at the site. Other questions, concerns and complaints were filed with the City by neighbors of the facility. June 12, 2009: The City Attorney concluded that the contractor should be allowed to continue the tenant improvements based on substantial investment according to approved plans Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) manager@cityofberkeley.info Website:

2 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 November 11, 2009: The City of Berkeley and PWS entered into an agreement to process a land use permit for the project, during which time the building permit would be suspended. December 3, 2009: PWS applied for an AUP to operate the Laundromat within the existing mixed-use building, which was to be reviewed by the Zoning Adjustments Board and Council according to the legal agreement between the City and applicant. January 28, 2010: The ZAB conducted a public hearing to consider the application. The ZAB identified the following considerations which weighed against approval of the project: 1. Potential Negative Health Impacts: The neighbors expressed concerns about potential health impacts associated with air emissions from dryer sheets and detergents that may be associated with the proposed use. 2. Parking: The site has a limited parking supply, and the laundromat may result in peak parking demand above the code-required parking for the proposed use. The City has the option to require more parking when actual parking demand could exceed the code minimum. Local parking supply was of concern, and interest was expressed in requiring more than the code minimum. 3. Noise and Vibration: The proposed use could increase noise and vibration for residents above the facility, and no site-specific study or data has been provided. 4. Security: The applicant was unable to say definitively that the proposed laundromat would be attended at any or all times during the hours of operation; even having the proposed laundromat attended from 6:00 p.m. to closing at 10:00 p.m. may not be adequate to mitigate potential security issues. The applicant develops laundromats, but will not be the owner or operator and cannot make assurances about how the facility will be operated. 5. Fire Safety: The site was previously occupied by a commercial laundromat and dry-cleaning service that was destroyed by fire, which brings into question whether or not laundromats are potential safety hazards for the residents of the site and neighborhood. 6. CC&Rs: The condominium CC&Rs may prevent some of the recommended construction such as venting the dryer exhaust system to the roof. After considering the application and the above information, the ZAB denied the application based on findings that the project could be detrimental and could be incompatible with the purposes of the zoning district. Document 9 of the Administrative Record provides the full reasoning and conclusions of the ZAB. In summary, the ZAB made the following findings in support of its decision to deny the application: Page 2

3 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, There is insufficient evidence to find that there would not be a noise or vibration impact to the residential neighbors. 2. There is insufficient evidence to find that there would not be an air quality or health impact to the residential neighbors. 3. There may be insufficient parking to meet the demand of the use. 4. There are questions about whether the use is allowed or can be designed to conform to the provisions of the CC&Rs for the mixed-use project. February 23, 2010: The City Manager requested that the City Council: 1) certify the ZAB action regarding AUP No , for the laundromat project at 3095 Telegraph Avenue, for review by the Council, and 2) set this matter for hearing on March 23, No appeal of the ZAB decision has been filed. RATIONALE FOR RECOMMENDATION Staff recommends that the City Council hold the public hearing and either reverse the decision of the ZAB and grant the AUP with conditions or direct staff to return on April 20 th with a resolution and findings denying the AUP. The issues raised in the ZAB s discussion on January 28, 2010, and staff s responses, are as follows. For the sake of brevity, the issues are not re-stated in their entirety; refer to the attached ZAB hearing transcript for full text of the hearing, and the administrative record for additional document submittals and staff analysis. Issue 1: Response 1: Health Risk: Dryer sheets and laundry detergents could pose potential negative health risks for the neighbors of the project. The opponents to the project have submitted information from a variety of sources indicating that there may be a health risk due to the contents of and emissions from common laundry products and processes. Document 7 of the Administrative Record includes those documents that were submitted to the ZAB during its deliberations. Dan Belik, Rule Development Manager with Bay Area Air Quality Management District (BAAQMD) responded to staff s telephone inquiry about BAAQMD s regulations for the emission of fragranced products associated with commercial laundry facilities. BAAQMD does not regulate laundromats; however, Mr. Belik responded in an to staff that there should not be a greater concern about carbon monoxide (CO) levels associated with a laundromat than with any other business that may have a furnace, boiler or hot water heater. Mr. Belik also noted that the California Air Resources Board (CARB) has specific jurisdiction over consumer products, such as dryer sheets and laundry detergents, and that CARB regulates the solvent content of these consumer products under a mandate to protect human health and the environment. Therefore, it appears that the emissions from the project would not exceed what is commonly considered acceptable from a regulatory perspective; furthermore, the project would provide a dryer venting system that runs to the roof of the building so that emissions will be Page 3

4 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 more readily dispersed into the atmosphere and away from the residents of the site and neighborhood. The scale of the project, with 26 dryers and a hot water system for 26 washers, appears to be reasonable for a commercial corridor such as Telegraph Avenue. Issue 2: Response 2: Parking: There is a possible shortage of on- and off-street parking to accommodate a laundromat at the site, adversely affecting the site and surrounding residential area. The mixed-use building in which the laundromat would be located was completed in It includes five ground floor commercial tenant spaces that together comprise a total of 6,060 gross square feet of floor area, plus 10 residential condominiums on the second and third floors. The project was required to have 23 parking spaces, with 10 for the residential portion and 13 for the commercial portion. The residential spaces are in enclosed garages. The commercial spaces are in an open parking lot at the rear of the building, accessed from Dowling Street. The parking supply meets the zoning ordinance minimum requirement for the uses at the site, and the applicant has provided a copy of a lease agreement that reserves four parking spaces for the laundromat. However, the actual parking demand at the laundromat will likely exceed this supply, particularly during peak periods such as on weekends. The facility would provide 26 washers and 26 dryers. The City s zoning ordinance requires parking at the rate of 2 spaces per 1,000 gross square feet of the tenant space, which in this case results in a requirement of 4 spaces. Staff notes that a sampling of codes from other jurisdictions indicates that some cities require parking based on the number of machines (such as 1 parking space per 2 or 3 washing/drying machines) or at a higher rate per gross square foot of floor area (such as 4 or 5 spaces per 1,000 square feet). Berkeley typically has lower parking requirements than many communities based on the high use of transit and other alternative transportation modes. However, a laundromat presents unique constraints, including the need to transport potentially bulky and heavy loads of laundry. Although transit, bicycling, and walking are potentially viable options for some users of the facility, peak activity times and a reliance on automobiles could result in demand for about 10 parking spaces based on standards applied by other communities and typical behavior of laundromat users, i.e. doing two or three loads of laundry at one time. The project will also provide drop-off wash-and-fold laundry service, which could increase parking demand somewhat for customers and for on-site personnel. A parking survey was conducted in 2006 in the project vicinity as part of the permitting process for a previously-proposed tenant at the site (quick-serve restaurant). That survey included lunch and dinner times on two weekdays, and showed that there were about 10 vacant on-street Page 4

5 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 parking spaces within about 200 feet of the site along Telegraph Avenue, Dowling Street, and Prince Street. Staff considers such a walking distance reasonable, but notes that data is not available for weekends when the laundromat would experience peak demand and when the Residential Preferential Parking program is not in effect on the local side streets (Area A, 2-hour parking for non-residents, Monday - Friday, 8 am 7 pm). Therefore, it is possible that parking could be in short supply, and/or that the project could result in parking spill-over impacts to the neighborhood. However, the project site also provides 4 spaces dedicated to the laundromat; combined with metered and other on-street parking, the supply could reasonably meet demand. It should be noted that the project applicant is not requesting a reduction or waiver of parking requirements because the project would supply four on-site parking spaces as required by the zoning ordinance. If the Council believes additional parking would be reasonably necessary, then a condition of approval could require that additional parking be provided (BMC Section 23E B). However, there is no opportunity to increase the on-site parking supply because the site is fully developed and the spaces are already allocated among the commercial spaces; the applicant would have to secure off-site parking in reasonable proximity to the site in order to satisfy such a condition of approval. Issue 3: Response 3: Noise and Vibration: The laundry facility could cause excessive noise and vibration for the residential units located above the commercial tenant space. The mixed-use building was constructed in 2006 with ground floor commercial space and upper story residential space, according to thencurrent codes for occupancy separation. This includes a code-compliant structure with one-hour fire separation, fire suppression systems, and other isolation of the commercial and residential uses. The ceiling / floor assembly between the ground floor and upper floors is rated for sound control according to the construction details provided by the project architect. It is possible, however, for noise and vibration to be transmitted through the structure or around and through certain penetrations such as pipes and conduits, or through windows and doors. The applicant has submitted documents that indicate the washers and dryers will each generate between 60 and 66 decibels (db) each. When in simultaneous operation the combined noise from these machines could generate about 75 db. Combined with the noise of the dryers, the noise in the laundromat could reach 80 db. However, the construction details would reduce the transmission of this noise from the laundromat to adjacent residences to a great extent according to the building design, which includes a 50 STC rating. This is likely to reduce noise to the upstairs residential unit to a barely audible or inaudible level, if the construction details are maintained such as minimizing and sealing Page 5

6 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 openings and isolating items that may be attached to the building walls and ceiling. Furthermore, the opponents have expressed concern about vibration from the laundry machines. Staff is unable to definitively determine the potential vibration that could be generated by the laundry equipment, but the applicant states that they are familiar with the concern based on their experience elsewhere and that vibration can be minimized by using proper design strategies, equipment, and installation methods. Finally, the opponents have expressed concern about noise from patrons being in the parking lot or in the vicinity of the laundromat while waiting for their laundry to wash and dry. Staff believes that such noise is commonly associated with commercial districts and should be an anticipated and acceptable impact of the laundromat, as it is with other types of tenants such as the café that is within this same building. Council may wish to impose a condition of approval to require the applicant to post signs and enforce rules to minimize noise disturbance in the vicinity of the facility, as is commonly required for other places of assembly. Issue 4: Response 4: Issue 5: Response 5: Security: Insufficient assurances have been provided to address potential loitering, robbery and theft at or near the facility. The applicant was unable to say definitively that the proposed laundromat would be attended at any or all times during the hours of operation. Staff had recommended that the proposed laundromat be attended at a minimum from 6:00 p.m. to closing at 10:00 p.m. The applicant had previously indicated that the site could be attended at various times of day to provide wash-and-fold services and to provide security. However, the applicant will not be the long-term owner or operator, and a potential operator of the facility has indicated that he would be unwilling to accept a condition of approval requiring a full-time attendant. Similarly, the mixed-use project was originally approved with a security gate for the on-site parking lot, but that feature was eliminated from the plan to encourage use of the parking lot by customers, so there is limited control of the parking lot area. The applicant has suggested that additional lighting could be installed in the parking lot to improve security. Fire Safety. Opponents of the project assert that the self-serve laundry and wash-and-fold service could present fire hazards to the mixed-use building and neighbors due to lint accumulation and other operational risks. The project site was occupied by Milt s Laundry and a mini-mart for over 25 years. The laundry provided self-serve laundry, wash and fold, and Page 6

7 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 dry-cleaning services. The cause of the fire is generally understood to have been the dry-cleaning service. However, opponents of the project have noted that poor maintenance can also result in lint accumulation and that fire safety is a concern. Although there is never certainty that all risks would be avoided, the mixed-use building is constructed with a one-hour fire resistance rating, includes fire suppression equipment (sprinklers), and the tenant improvements and laundry equipment would meet the latest codes. Maintenance including lint removal and similar activity would be the responsibility of the owner/operator, and could be subject to regular reporting and inspection if the Council believes such a condition of approval is warranted. Issue 6: Response 6: CC&Rs: The condominium CC&Rs may prevent some of the construction such as venting the dryer exhaust system to the roof. The laundromat project originally included combined dryer vents that would have exited the ground-floor side of the building along the southern wall adjacent to a secured walkway. An upstairs neighbor opposed this design on the basis of potential air quality impacts to his residence. The applicant has submitted a modified design, which requires Design Review approval. That application is on hold pending a complete submittal and response to staff comments regarding design improvements. However, it appears feasible to provide vents that run to and above the roofline of the building which would improve dispersion and minimize exposure of residents at or near the site to potential air pollutants and odors. The final design solution would likely be subject to review, and possibly approval, of the project Home Owners Association (HOA), independent of the City s review and approval process. If the design is not approved by the HOA, then the applicant would have to apply for an acceptable modified design or not proceed with the project. ALTERNATIVE ACTIONS No appeal of the ZAB decision has been filed. On February 23, 2010, the Council certified the ZAB decision for review and set a hearing date of March 23, That action does not represent opposition to or support of the project. The Council should therefore conduct a public hearing, review the evidence in the record, and make an independent assessment of the facts of the case. The Council may then approve, modify, or deny the project, in whole or in part and subject to conditions of approval that it deems necessary and reasonable. Staff recommends that the Council conduct a public hearing and either: (1) adopt a Resolution approving an Administrative Use Permit (AUP) No to establish a commercial laundromat within a mixed-use building comprising five commercial tenant spaces and ten residential condominiums; or (2) direct staff to return on April 20, 2010 with a resolution and findings to deny the AUP. Page 7

8 ZAB Appeal: 3095 Telegraph Avenue Administrative Use Permit No ACTION Calendar March 23, 2010 Action Deadline: The Council has 30 days from the date of certification to conduct an initial hearing, which may be continued from time to time. CONTACT PERSONS Debra Sanderson, Land Use Planning Manager, Planning & Development Department, (510) Pamela Johnson, Assistant Planner, Planning & Development Department, (510) Attachments: 1: Draft Council Resolution Exhibit A: Findings and Conditions Exhibit B: Project Plans dated December 3, : ZAB Notice of Decision, dated February 9, : ZAB Staff Report, dated January 28, : Index to Administrative Record 5: Administrative Record Page 8

9 RESOLUTION NO. ##,###-N.S. REVERSING THE ZONING ADJUSTMENTS BOARD S DENIAL OF ADMINISTRATIVE USE PERMIT TO ESTABLISH A COMMERCIAL LAUNDROMAT IN AN EXISTING MIXED-USE BUILDING THE TELEGRAPH COMMERCIAL (C-T) ZONING DISTRICT AND APPROVING THE PROJECT SUBJECT TO CONDITIONS WHEREAS, on November 25, 2008, PWS Laundry ( PWS ) submitted building permit no for tenant improvements for a laundromat within an existing mixed-use building; and WHEREAS, on November 11, 2009, the City of Berkeley and PWS entered into an agreement to process a land use permit for the project, during which time the building permit would be suspended; and WHEREAS, on December 3, 2009, PWS applied for an Administrative Use Permit ( AUP ) to operate the laundromat within the existing mixed-use building, which was to be reviewed by the Zoning Adjustments Board ( ZAB ) and Council according to the legal agreement between the City and PWS; and WHEREAS, on January 14, 2010, staff mailed and posted a Notice of Public Hearing for the project in accordance with BMC Section 23B ; and WHEREAS, on January 28, 2010, the ZAB conducted a public hearing in accordance with BMC Section 23B , and denied the project; and WHEREAS, on February 9, 2010, staff issued the notice of the ZAB decision; and WHEREAS, on February 23, 2010, the Council certified the ZAB decision for review and set a hearing date of March 23, 2010; and WHEREAS, on March 23, 2010, the Council considered the record of the proceedings before the ZAB, and 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 overturning the decision of the ZAB. NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council hereby adopts the findings contained in Exhibit A, reverses the decision of the ZAB to deny Administrative Use Permit No , adopts the conditions in Exhibit A and the project plans in Exhibit B, and approves the project. Exhibits A: Findings and Conditions B: Project Plans dated December 3, 2009

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42 Attachment Telegraph Avenue Administrative Record Attachment 5 to this report, ZAB Appeal: 3095 Telegraph Ave. 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

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