Honorable Mayor and Members of the City Council

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1 Office of the City Manager ACTION CALENDAR June 11, 2013 To: From: Honorable Mayor and Members of the City Council Christine Daniel, City Manager Submitted by: Eric Angstadt, Director, Planning & Development Subject: ZAB Appeal: 2433 Martin Luther King, Jr. Way RECOMMENDATION Adopt a Resolution affirming the Zoning Adjustments Board s (ZAB) approval of Use Permit No to construct two dwellings in a new two-story, 1,552 square foot building to the rear of an existing one-story, 1,064 square foot, single-family residence, on a 5,200 square foot parcel in the R-3 District. FISCAL IMPACTS OF RECOMMENDATION None. CURRENT SITUATION AND ITS EFFECTS On February 14, 2013, the Zoning Adjustments Board (ZAB) held a public hearing and approved the application by a vote (Yes: Allen, Alvarez Cohen, Donaldson, Mathews, Tregub, Williams; Abstain: Hahn; Absent: Groves). On February 19, 2013, staff issued the notice of the ZAB decision. On March 5, 2013, Matthew O Brien filed an appeal with the City Clerk, signed by at least 25 persons who lease or own land within 300 feet of the project site. BACKGROUND Berkeley High School is one block north and the Herrick Campus is one block to the east of the subject property. To the south at the intersection of Dwight Way and Martin Luther King, Jr. Way is the core of a small Neighborhood Commercial area. The development pattern along Martin Luther King, Jr. Way and the block to the east is predominately medium to high density residential within two and three story buildings. The project site is relatively flat with an existing, one-story, single-family residence located near Martin Luther King, Jr. Way. The rear yard of the parcel is undeveloped and does not contain any significant vegetation. Abutting the site to the north along Haste Street are two, three-story multi-family buildings ( & Haste Street) Haste is at the corner of Haste and Martin Luther King, Jr. Way, has three dwellings and is setback 16-feet from the property line shared with the project Haste is east along Haste Street, has three dwellings and is setback 9 to 15-feet from the property line shared with the 2180 Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) manager@cityofberkeley.info Website:

2 ZAB Appeal: 2433 Martin Luther King, Jr. Way ACTION CALENDAR June 11, 2013 project. Abutting the site to the east at Haste, is a single-story multi-family building that is setback 12-feet from the property line shared with the project. Within the setback is a paved driveway that also includes several large evergreen trees. Abutting the site to the south at 2435 Martin Luther King, Jr. Way is a two-story, two-family building that is setback 10-feet from the property line shared with the project. The project would involve the construction of a two-story, wood-frame, two-family dwelling and the creation of two additional off-street parking spaces. The dwelling on the lower floor would be 784 square feet and contain a sitting room, kitchen and living room and two bedrooms. The dwelling on the upper floor would be 767 square feet and contain a kitchen, living room and two bedrooms. The new building would be separated from the north property line by 4-feet at the ground floor and 10-feet, 6-inches for the second floor, at least four-feet from the south property line, 15-feet from the east, or rear property line, and roughly 80-feet from the west, or front property line. The new building would be separated from the building directly to the north at Haste by 14 to 19-feet, from the building to the east at Haste by 27-feet, and from the building to the southwest at 2435 Martin Luther King, Jr. Way by 19-feet. Two off-street parking spaces would be located between the existing single-family residence and the new two-unit building and a third space would be located next to the proposed building near the northern property line. Landscaping would be installed along the entire north property line within a two to four foot landscape planter and within the entire rear yard abutting the eastern property line. In addition, the front yard that is currently paved with concrete will be converted to a landscaped area. ZAB HEARINGS The ZAB held a public hearing on November 8, 2012, received testimony from two speakers in support of the project and also from five neighbors in opposition. The November 8, 2012, ZAB report and attachments may be found in Attachment 4, pages Those in favor of the project spoke of the design changes made to address neighbor concerns regarding shading and privacy, and that the project provided needed infill housing. Those that spoke in opposition to the project cited negative shading impacts to the vegetable garden at Haste Street, inconsistency with the City s Climate Action Plan, and that the project provided insufficient parking. The ZAB discussed shading impacts to the properties to the north and concluded the shadow impacts to the dwellings were non-detrimental because even during the shortest days when the duration and length of shadows are the longest, new shadows would only impact the ground floor of the buildings to the north, and would only shade a portion of a window on each building in the morning. After stating that shadowing of yard areas was not a basis to find detriment, the ZAB nevertheless asked for new studies to assess the shadow impacts to the vegetable garden at Haste Street Page 2

3 ZAB Appeal: 2433 Martin Luther King, Jr. Way ACTION CALENDAR June 11, 2013 during the growing season to address the concerns of this neighbor. The ZAB continued the matter off-calendar so that the applicant could prepare new shadow studies and to allow a second attempt at mediation. The Captioner's report of the ZAB s November 8, 2012, meeting can be found in Attachment 4 at pages The ZAB held a new public hearing on February 14, 2013, received testimony from one speaker in support of the project (the applicant) and also from three neighbors in opposition. The February 14, 2013, ZAB report and attachments may be found in Attachment 4, pages The applicant spoke of the high density development that surrounded the project site, how this project is less dense than the properties to the north and less than allowed by the Zoning Ordinance. The neighbors expressed concerns regarding the project s impact to the garden at Haste Street and of the project s inconsistency with the City s Climate Action Plan. The ZAB discussed shading impacts to the properties to the north and concluded that the project would not reduce the sunlight available to the garden at Haste. At the conclusion of the hearing, the ZAB approved the application by a vote. The Captioner's report of the ZAB s February 14, 2013, can be found in Attachment 4 at pages RATIONALE FOR RECOMMENDATION The issues raised in the appeal letter, and staff s responses, are listed below. For the sake of brevity, the appeal issues are not re-stated in their entirety; refer to the attached appeal letter for full text. Issue 1: Response 1: The City of Berkeley s Planning Department failed in its due diligence to adequately assess the impacts of the proposed development. This appeal point refers to omissions, misrepresentations, and inaccuracies, all of which favor development in the staff report presented to the ZAB in November [P. 1 of attached appeal letter.] This claim was presented to the ZAB in February 2013, and asserted that the ZAB was not informed of neighbor opposition, that shadow impacts were not fully considered, that the project would create negative privacy impacts, that staff was untruthful in the staff report to the ZAB by stating that the design was modified several times to reduce off-site impacts, and that the ZAB report erroneously omitted analysis of the project in relation to BMC Chapter and the Climate Action Plan. Regarding neighbor opposition, all letters submitted to the City regarding this project were provided to the ZAB, and at the hearings, the ZAB Page 3

4 ZAB Appeal: 2433 Martin Luther King, Jr. Way ACTION CALENDAR June 11, 2013 received testimony from eight neighbors. The ZAB considered the points offered by the neighbors in writing and at the hearings, and concluded that the project did not create detriment. The appeal does not provide any new points that the ZAB should have considered nor does it provide new evidence to suggest that the project would create detriment. Regarding shadow impacts, ZAB reviewed the shadow studies that depicted shading on March 21, June 21, September 21 and December 21 at two hours after sunrise, noon, and two hours before sunset, and concluded that the project would not create detrimental shadow impacts to neighboring properties, because as stated above, even during the shortest days, new shadows would only shade a portion of a window on each building in the morning. The appeal does not provide any evidence to suggest that the project would create detrimental shadow impacts to the adjacent residences or that the shadow studies were incorrect. Regarding privacy, the appeal is incorrect that the ZAB was not informed of potential privacy impacts. The November 2012, ZAB report stated: the new dwellings are primarily orientated to the east and west for access to sunlight and air; the proposed building façades that face north and south have fewer windows, and those that are closest to the property lines are small, clerestory windows that allow access to sunlight and air, but do not offer direct views to the properties to the north or south. Views that would exist are distant, and due to the proposed building-to-building separation, the proposed dwellings would pose a lesser privacy impact than what exists for other buildings in the area. The appeal does not provide any evidence to suggest that the project would create detrimental privacy impacts. The staff reports to the ZAB stated that modifications were made to the design to lower the roofline and to reduce the floor area of the second floor and that these changes would lessen potential off-site impacts, in particular to the property to the north. According to the applicant, these changes were made to respond to comments made by Matt O Brien (see attachment 4, page 27) and according to the applicant, while the changes were noted as an improvement, the neighbor remained opposed to the project. The staff report was thus factually correct, and staff s opinion remains as stated above; the appellant disagrees. The ZAB concluded that the project would not create detrimental impacts to neighboring properties; this appeal does not provide any evidence to suggest that the project would create detriment or that the ZAB acted improperly to approve the project. Page 4

5 ZAB Appeal: 2433 Martin Luther King, Jr. Way ACTION CALENDAR June 11, 2013 Regarding analysis of the project in relation to BMC Chapter 12.45, this chapter of the BMC does not apply to this project. BMC Chapter is the City s Solar Access and Views Ordinance which addresses resolution of disputes between neighbors in regards to loss of sunlight or views due to tree growth. This Ordinance does not address the loss of sunlight or views due to development. The appeal refers to Chapter to suggest that the ZAB did not consider shadow impacts in relation to solar heating and light to the buildings to the north and did not consider the shadow impacts in relation to food production in private gardens. As stated above, the ZAB did consider both, and found no impact would occur. Regarding the Climate Action Plan, specific regulatory provisions implementing this Plan have not been incorporated into the Zoning Ordinance. Nonetheless the Plan expresses overall City policy. The provisions cited by the appellant refer to green space, local food production and open space. This project would create more planting than exists today by including landscaping that would be installed along the entire north and south property line within a two to four foot landscape planter and within the entire rear yard abutting the eastern property line. In addition, the front yard that is currently paved with concrete will be converted to a landscaped area. Regarding food production, the shadow studies demonstrated that the project would not reduce the sunlight available to the garden area located within the rear yard at Haste Street. Fundamentally, however, the project is consistent with and implements the Plan, because a major goal of the Plan is to encourage infill housing close to transit and services. Issue 2: Response 2: The proposed development is in conflict with several provisions of the Berkeley Municipal Code, including sections not within the Planning code, and the Berkeley Climate Action Plan and [t]hese conflicts between the proposed development and the BMC and the Climate Action Plan were ignored by Planning. [P. 1 of attached appeal letter.] While the appeal does not cite which sections of the BMC Staff allegedly ignored, the appellant has stated previously that project review should have considered the provisions of BMC Chapters and and the Climate Action Plan. The inapplicability of Chapter and the project s consistency with the Climate Action Plan have already been addressed above. BMC Chapter addresses the City s municipal solar utility program and does not apply to this project. Page 5

6 ZAB Appeal: 2433 Martin Luther King, Jr. Way ACTION CALENDAR June 11, 2013 Thus, staff recommends that the Council find this appeal point as without merit and dismiss the appeal as to this issue. Issue 3: Response 3: Planning withheld information from community members opposed to the project despite our making it clear we wanted to be kept informed, yet misrepresented the case as if to suggest that the neighbors were included in discussions with the applicants and Planning, which is not true. [p. 1 of attached appeal letter] Without providing information to support this claim, it is impossible to respond to this appeal point. Nevertheless, staff met with the appellant to review the plan and the City s policies for in-fill development well before the hearing. Later, the neighbors were informed of the project via two public hearing notices for this project and the Staff reports for each hearing were made available online 1 week prior to each hearing. On two occasions staff referred this project to Mediation, without successful resolution. ALTERNATIVE ACTIONS CONSIDERED Pursuant to BMC Section 23B B, the Council may (1) affirm the ZAB decision and dismiss the appeal, (2) set the matter for a public hearing, or (3) remand the matter to the ZAB. Action Deadline: Pursuant to BMC Section 23B C, if none of the three actions described above has been taken by the Council within 30 days from the date the appeal first appears on the Council agenda, then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied. CONTACT PERSONS Debra Sanderson, Land Use Planning Manager, Planning & Development Department, (510) Greg Powell, Senior Planner, Planning & Development Department, (510) Attachments: 1: Resolution Exhibit A: Findings and Conditions Exhibit B: Project Plans, dated January 8, : Appeal Letter, dated March 5, : Index Administrative Record 4: Administrative Record Page 6

7 RESOLUTION NO. ##,###-N.S. AFFIRMING THE ZONING ADJUSTMENTS BOARD S APPROVAL OF USE PERMIT No TO CONSTRUCT TWO DWELLINGS WITHIN A TWO-STORY, 1,552 SQUARE FOOT BUILDING TO THE REAR OF AN EXISTING ONE-STORY, 1,064 SQUARE FOOT, SINGLE-FAMILY RESIDENCE, ON A 5,200 SQUARE FOOT PARCEL IN THE R-3 DISTRICT WHEREAS, on March 15, 2011, Minxi Liu, on the behalf of the property owner, filed an application for Use Permit No , to construct two dwellings within a twostory, 1,552 square foot building to the rear of an existing one-story, 1,064 square foot, single-family residence, on a 5,200 square foot parcel in the R-3 District; and WHEREAS, on June 25, 2011 and August 18, 2011, the application was revised to reduce the floor area of the proposed second floor; and WHEREAS, on September 17, 2011, this application was deemed complete; and WHEREAS, on October 25, 2012, staff mailed 327 notices to adjoining property owners and occupants within 300 feet of the site, and to interested neighborhood organizations and posted a Notice of Public Hearing to inform the public of a meeting with the Zoning Adjustments Board (ZAB); and WHEREAS, on November 8, 2012, the ZAB held a public hearing, received testimony from seven speakers, requested new shadow studies to depict shading during the growing season, referred the application to mediation, and continued the hearing off calendar; and WHEREAS, on January 10, 2012, shadow studies depicting shadow impacts on March 21 and June 21 were submitted; and WHEREAS, on January 21, 2013, staff mailed 327 notices to adjoining property owners and occupants within 300 feet of the site, and to interested neighborhood organizations and posted a Notice of Public Hearing to inform the public of a meeting with the Zoning Adjustments Board (ZAB); and WHEREAS, on February 14, 2013, the ZAB held a public hearing, received testimony from four speakers, and approved the application by a vote (Yes: Allen, Alvarez Cohen, Donaldson, Mathews, Tegrub, Williams; Abstain: Hahn; Absent: Groves); and WHEREAS, on February 19, 2013, staff issued the notice of the ZAB decision; and WHEREAS, on March 5, 2013, Matthew O Brien filed an appeal with the City Clerk, signed by at least 25 persons who lease or own land within 300 feet of the project site; and

8 WHEREAS, on June 11, 2013, 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, do not warrant further hearing. NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council hereby affirms the decision of the Zoning Adjustments Board to approve Use Permit No , adopts the findings and conditions in Exhibit A and the project plans in Exhibit B, and dismisses the appeal. Exhibits A: Findings and Conditions B: Project Plans dated January 8, 2013 Page 2

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36 Attachment 4 ZAB Appeal: 2433 MLK Way. Administrative Record Attachment 4 to this report, Administrative Record Martin Luther King Jr. Way. is on file and available for review at the City Clerk Department, or can be accessed from the City Council Website. City Clerk Department 2180 Milvia Street Berkeley, CA (510) or from: The City of Berkeley, City Council s Web site

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