1. For purposes of compliance with the California Environmental Quality Act (CEQA):
a. FIND on the basis of the whole record before the Board that there is no substantial evidence that the project will have a significant effect on the environment, and that the Mitigated Negative Declaration reflects the County’s independent judgment and analysis; and
b. ADOPT the Mitigated Negative Declaration as adequate; and
c. ADOPT the Mitigation Monitoring Program.
2. ADOPT the proposed General Plan Amendment, County File: #GP05-0006, changing the General Plan designation from Commercial (CO) to Mixed Use (M-) as the fourth consolidated amendment to the Contra Costa General Plan (2005-2020) in Calendar Year 2009 as allowed under State planning law.
C. SUSTAIN, the County Planning Commission's approval of:
1. The proposed modification to the 1983 Colusa Circle Final Development Plan, County File #DP06-3026, as conditioned.
2. The proposed vesting tentative map, County File #MS06-0011, as conditioned.
D. DENY the appeal filed by the Colusa Circle Improvement Association.
E. DENY the appeal filed by the Applicant, Andrew Woolman.
F. ADOPT Board Resolution #2009/484 containing findings as the basis for approving the project.
G. DIRECT staff to post a Notice of Determination with the County Clerk.
This hearing concerns related development applications pertaining to a parcel located at #401 Colusa Avenue in the Kensington area that is approximately 4800 square feet in area, and that is a portion of the area covered by the Colusa Circle Final Development Plan, County File #DP82-3056. The applicant is Andrew Woolman and the property owner is The Circle Partnership. More specifically, the hearing is to consider:
(1) The recommendation of the County Planning Commission to change the General Plan designation for this site from Commercial to Mixed-Use, County File #GP05-00006; and
(2) Two appeals that have been filed of the County Planning Commission decisions to approve related requests to:
(a) amend the Colusa Circle Final Development Plan for this site from commercial and restaurant uses, including a 34-stall parking garage to allow a mixed use building consisting of three residential units and two separate street front retail/office spaces, County File #DP06-3026, and
(b) approve a vesting tentative map to subdivide the 4800 square foot site into three residential (condominium) parcels and one retail/office that includes the garage area (condominium) parcel, County File #MS06-0011.
• One appeal was filed by the applicant, Andrew Woolman.
• The other appeal was filed by a neighborhood group, the Colusa Circle Improvement Association.
Environs. The parcel lies in a developed urban area of the unincorporated community of Kensington. Kensington is a predominantly residential community that is tucked in the hills between the City of Berkeley and El Cerrito. This triangle-shaped site is located near the southwest corner of Kensington and fronts on Colusa Circle, Oakview Avenue and Colusa Avenue.
Most of the immediate area around the subject site consists of an older neighborhood commercial center with several underutilized properties. Across Oakview Avenue lies an apartment building and single-family residences. Across Colusa Avenue are a veterinarian office and the local market. Beyond Colusa Circle’s neighborhood business center there are single-family residences on lots that are zoned R-6.
Site Description. The residential project site is one parcel with an area of 4,792 square feet. The site is vacant, currently paved and has a relatively small slope.
Site Relationship to 1983 Development. The site is a part of the Colusa Circle Final Development Plan approved in 1983, when the subject site and two other nearby properties on Colusa Circle were rezoned from Retail-Business, R-B to Planned Unit District, P-1. That approval was exercised when Phase I was developed in 1985; thus, the project approval remains valid if all conditions are met and provided that the development is consistent with the earlier project approval. The 4,792 square foot site is a portion of the original property (8,872 square feet) that is known as Phase II of the exercised development plan. Phase II was approved to construct a 38-foot tall, three-story building that housed a 120- seat restaurant and a 34-stall parking garage.
Zoning. The subject property is zoned Planned Unit District (P-1) which was applied to the site and two other properties that front on Colusa Circle, in 1983 with the adoption of a Final Development Plan permit: County Files #RZ-2539 and #DP3056-82, attached.
1983 Final Development Plan, County File #DP3056-82
The 1983 Final Development Plan was approved by the Board of Supervisors on June 28, 1983. At the time that the proposal was made, the site consisted of multiple parcels that front on Colusa Circle. This particular parcel is one of the two properties associated with Phase II.
Following the project approval, several of the parcels, including the subject parcel, were sold to the Circle Partnership.
A component of the 1983 plan (Phase I) at 400-404 Colusa Avenue was constructed in 1985 and occupied, thus, exercising the project approval. The Phase I site is located at the southerly side of the intersection of Colusa Avenue and Oakview Avenue. That site now contains an animal hospital and hair salon.
Phase III and IV obtained approval of a modification to the final development plan in January 2008. In summary, the modification allowed for 2944 square feet of buildings to be demolished, and approximately 10,000 square feet of new buildings are approved to be built, resulting in an increase of approximately 7000 square feet of new building area, along with a 13-car parking lot. The parking along Santa Fe and Oakview Avenue street frontages are approved to be changed from parallel to diagonal to increase the number of spaces by 13. The applicant has recently begun the compliance review portion of the project.
Phase II consisted of two parcels 401 (subject site) and 411 Colusa Avenue that total 8,872 square feet. The commercial building was approved for 8,054 square feet and included a 120-seat restaurant and a 34-stall parking garage. The current proposal is different, in that it only consists of one of the two parcels from the Phase II approval.
Project Description. The following is summary of the proposed project; however, a detailed description is attached, refer to the August 12, 2008 County Planning Commission staff report.
The project includes the development of a new 8,111 square foot mixed-use three-story building that includes three individual condominiums ranging in size from 900 to 1800 square feet. Each condo would have access to two off-street parking spaces. Additionally, there are two separate street-front retail/office spaces of 784 square feet and 848 square feet. Residential units and retail/office units will utilize the proposed eight off-street parking spaces. The eight off-street parking spaces are stacked or bi-level and contained within the building's garage. Access to the garage driveway/courtyard will be off of Oakview Avenue.
The subdivision would subdivide the proposed building into four condominium parcels: three would be residential parcels, and one retail/office parcel.
Position of the Kensington Municipal Advisory Council (KMAC). Prior to the County Planning Commission decision, by a unanimous vote (4-0), the KMAC recommended that the project be denied on the basis that the project does not meet the provisions of the Kensington Combining District Ordinance and does not adequately address parking or traffic.
HEARING OF THE COUNTY PLANNING COMMISSION
The County Planning Commission conducted a hearing on this matter on two dates. The staff report prepared for that hearing determined that the project uses are appropriate, but the building design would negatively impact both light and view due to its mass in relationship to the small size of the property. The proposed eight off-street stacked parking spaces are of unique mechanical design for the Kensington area, but would provide spaces for all the potential residents of the proposed building. Based on these evaluations, staff recommended approval of a lower profile that eliminates the third story dwelling unit (914 square feet), thereby reducing the impacts of view, light and mass on the surrounding properties.
Based on this analysis, staff recommended that the County Planning Commission:
- Recommend approval of the General Plan Amendment changing the Commercial designation to Mixed Use; and
- Approve the proposed modification to the Final Development Plan, but subject to a requirement to eliminate the third story dwelling unit; and
- Approve the proposed subdivision, subject to a reduction in the number of parcels from four parcels to three parcels (two residential condominium and one retail/office unit).
The changes recommended by staff were aimed at reducing the mass, height, visual impacts and parking impacts when compared to the original proposal. The background of the staff analysis and recommendation to the Commission are contained in two staff reports to the Commission dated August 12 and October 28, 2008.
At the August 12, 2008 public hearing, the Commission heard testimony from the applicant and nearly two-dozen community members, including representatives from the Colusa Circle Improvement Association (CCIA) who shared concerns about the proposed project's design. The residents cited concerns with the building's height, size, lack of off-street parking and view blockage. At the end of the hearing, the County Planning Commission continued the hearing on the project to allow the applicant time to meet with the neighbors and to see if a mutually acceptable project would be feasible.
Prior to the continued hearing, the applicant submitted revised plans that were not significantly different from the original proposed design. On October 28, 2008, the Commission resumed the hearing on this project. At that time, staff indicated that its analysis and recommendation on the project had not changed. The Commission accepted additional testimony from the applicant and the public on the revised plans.
After completing the public testimony and closing the hearing, the Commission adopted a motion to approve the project as recommended by staff with minor modifications. The Commission vote was 5-1 with Chair Murray dissenting.
RECEIPT OF TWO APPEALS ON COUNTY PLANNING COMMISSION DECISION
The County received two separate appeals: one from a neighborhood group, the Colusa Circle Improvement Association (CCIA), and the other from the project applicant.
REVIEW OF THE APPEAL FROM THE COLUSA CIRCLE IMPROVEMENT ASSOCIATION
The Colusa Circle Improvement Association (CCIA) submitted an appeal letter dated November 3, 2008 of the Commission’s decision on the project. The appeal points, with a staff response, are summarized below. It should be noted that the appeal points are similar to concerns that were raised in the testimony and evidence presented to the County Planning Commission.
A. Summary ofAppeal Point "General Plan": The Commission failed to address that the project does not conform to the General Plan. Specifically, the project exceeds the appropriate scale of development for such a small parcel and would contribute to the parking shortfall in the neighborhood.
The project as approved by the Commission exceeds 35-feet in height and exceeds 40% lot coverage and this is inconsistent with the Contra Costa County General Plan.
Staff Response: The staff report prepared for the review of the County Planning Commission discussed the General Plan in detail. To address the building’s scale the Commission eliminated the third story dwelling unit, thereby reducing the building’s overall height and scale and also improving the off-street parking ratio.
The Commercial General Plan designation provides for a 35 foot height limit and a 40% lot coverage standard. However, the standards by which this project is being measured is not the Commercial designation; rather, it is the Mixed Use designation. The Mixed Use designation does not have these height and lot coverage standards.
B. Summary of Appeal Point "Height - Building Too Tall": The Commission failed to consider reducing the project in height to two stories to reduce the impact of parking and traffic demands, as it does not conform to the building requirements of the General Plan. The Commission approved project would be taller than most of the existing one and two story homes in the area and inconsistent with the general character of the neighborhood.
The Commission did not fully consider the “Standards of Consideration” §84-74.1206 as stated in the Kensington Ordinance.
Staff Response: The County Planning Commission reviewed the materials and received testimony in regard to reducing the height of the building. By eliminating the third story dwelling unit, the Commission did reduce a portion of the building’s height from 37-feet 4-inches to 29-feet 6-inches, a reduction of over seven feet. It is correct to state that the building’s height would be taller than the adjacent single-family residences but there are other buildings on Colusa Circle that are as tall as the proposed building at 401 Colusa. The reduction in height to a portion of the building makes this building comparable to the surrounding Colusa Circle neighborhood.
The project is exempt from the Kensington Combining District Ordinance, §84-74.604 (a), thus the “Standards of Consideration” are not applicable.
C. Summary of Appeal Point "View Obstruction": The owners of residences at 1611 and 1619 Oakview have downward facing views of San Francisco and the Bay that are protected under the Kensington Ordinance. The project would also block protected views of San Francisco and the Bay from nearby residences.
Staff Response: The Commission eliminated the third story dwelling unit with the intent of reducing the view, light and massing impacts to the surrounding residential neighbors. This was partially accomplished but owners of residences at 1611 and 1619 Oakview continue to experience view loss from the Commission's decision. In order to preserve existing views at 1611 and 1619 Oakview the third story closest to Colusa Circle must be eliminated.
It should be noted that based on this appeal point staff has included an alternative action for the Board's consideration. Refer to the "Alternative Action" section of the report.
D. Summary ofAppeal Point "Parking": The Commission failed to address whether the proposed stacked parking will provide enough space to accommodate larger model cars and satisfy the off-street parking requirements. Also, the subject site is currently an empty lot that provides at least ten spaces that will no longer be available when development is completed there. This will further contribute to the overall increase in parking demands.
Staff Response: The proposed project, as approved by the Commission, provides 76% of the required parking spaces. Eight off-street parking spaces and two on-street. This was determined to be significantly more than the other projects around the Colusa Circle which provide less than 37% of the required parking and is consistent with the 1983 Colusa Circle Final Development Plan parking approval. Additionally, the Commission required a deed disclosure that delineates parking spaces between residential tenants and retail spaces that assigns a parking bay to a specific tenant or retail space, refer to condition of approval #10.
It should be noted that the Planned Unit Zoning District allows the County latitude in determining parking requirements, §84-66.1404 (3). Kensington and the Colusa Circle provide a unique integration of high density single-family residential and neighborhood business uses. This is an appropriate location to allow flexibility in the parking standards since these types of uses are within walking distance of each other.
This is private property that is currently undeveloped and being used for off-street parking without consent from the owner. There is no obligation by the property owner to maintain this vacant lot as parking for the neighborhood.
REVIEW OF THE APPLICANT’S APPEAL
The applicant submitted an appeal letter dated November 6, 2008 and submitted a subsequent letter on November 7, 2008 further articulating his concerns with the Commission’s decision. The appeal points are summarized below, together with staff responses to those points. The concerns in the applicant's appeal were previously made to the Commission before it rendered its decision.
A. Summary of Appeal Point "Adversely Affects Property Values": The Commission's decision adversely affects our property rights and property value as established and traded under the parcels 1983 Colusa Circle Final Development Plan (P-1 Zoning).
Staff Response: While it is true that the applicant is requesting to modify the approved 1983 Colusa Circle Final Development Plan; he is also requesting two other entitlement actions, a subdivision and a General Plan Amendment that are discretionary permits. General Plan Amendments and subdivisions are subject to findings prior to granting of approval.
The applicant is suggesting that under the 1983 Colusa Circle Final Development Plan, a very different type of land use could be established as long as impacts remain the same. The 1983 Colusa Circle Final Development Plan strictly allows for the construction of a commercial building that housed a 120-seat restaurant and included a 34-stall parking garage on two parcels. Since the proposed project is significantly different (i.e. different land use, one parcel) than the 1983 approval, it is practical that new findings and conditions of approval would apply.
B. Summary of Appeal Point "General Plan": The decision does not comply with the General Plan.
Staff Response: The applicant has not provided any evidence to show how the Commission's decision does not comply with the General Plan. The Commission’s decision to approve a two and three story building mitigated the building's impacts to view, light and parking. This is consistent with the Kensington specific General Plan policies #3-191 to #3-195, refer to August 12, 2008 Staff Report.
C. Summary of Appeal Point "Inconsistent Staff Recommendation": Staff's recommendation is inconsistent with its own finding that the project is more compatible than the approved 1983 Final Development Plan (P-1). To impose conditions based on the contrary is to unlawfully rescind the approved P-1 findings and zoning without due process.
Staff Response: The project, as conditioned, is compatible with the approved 1983 Colusa Circle Final Development Plan. The applicant has not provided a section of law that illustrates a conflict with the Commission's decision. The applicant fails to address the project is also requesting approval of a subdivision application and General Plan Amendment, both entitlement actions and subject to the discretion of the County.
D. Summary of Appeal Point "Other Three/Four Story Buildings": It is not reasonable to ignore other three and four story buildings on Colusa Avenue, nor is it reasonable to completely discount the approved P-1 massing for the parcel.
Staff Response: The project is a request to modify the 1983 Colusa Circle Final Development Plan, subdivide the property and apply a new General Plan designation to the site. The Commission's decision approved a two and three story building not ignoring the fact that other three and four story buildings exist on Colusa Avenue. The County Planning Commission took significant testimony and deliberated on this specific point. The Commission decision to modify the project does not rescind the 1983 Colusa Circle Final Development Plan but applies the findings required to approve the new project with consideration that there is also a request for additional entitlement actions, General Plan Amendment and subdivision. The Commission conditioned the project in response to issues raised in public testimony regarding impacts from the project, not discounting the history of the Final Development Plan, but rather applying the appropriate conditions of approval.
E. Summary of Appeal Point "Decision Unreasonable Due to Vested Rights": The specified limitation of a greatly reduced third floor and the removal of one dwelling unit are unreasonable in relation to the project having vested development rights and a superior off-street parking.
Staff Response: Again, the approved Colusa Circle Final Development Plan is not the only bar that the project is measured against there is also consistency findings with the applicable General Plan policies and subdivision law.
RECENT LETTER SUBMITTED BY THE APPLICANT
The applicant submitted a letter on July 3, 2009 that requests the Board of Supervisors find that the Colusa Circle Improvement Association (CCIA) appeal is invalid. The letter rebuts the appeal points of the Colusa Circle Improvement Association but provides no legal basis for the letter to be invalid.
ALTERNATIVE ACTION
Alternative Action That Would Permit Greater Protection of Views from Residences at 1611 and 1619 Oakview Avenue (Foley and Paul Residences) of the City Skyline and Bay
Condition of approval #1 of the Planning Commission approval requires a portion (eastern) of the proposed third story to be eliminated to:
- Preserve a portion of the views of the bay as seen from existing residences at 1611 Oakview Avenue (Foley) and 1619 Oakview Avenue (Paul);
- Reduce the building mass for the portion of the project that adjoins abutting existing single family residences on the east side of the project;
- Still permitting construction of the proposed third-story western residential unit with a view of the bay, while eliminating a proposed third dwelling unit on the east side of that story. The third dwelling unit is a 914 square foot studio.
The effect of the Commission's modification on the applicant's proposal is portrayed in the Staff Study dated October 2008. One effect of this approved design is that it would obstruct views of the San Francisco City skyline and Bay as seen from the two existing residences. If there is to be a third story residence, the nearby residents may prefer a building design that would retain their view of the San Francisco City skyline and bay.
One manner in which this design objective might be achieved would be to:
- Allow the third-story eastern dwelling to be developed, and
- Instead eliminate the third story portion of the western dwelling (closest to Colusa Circle).
The effect of this alternative is portrayed in the Staff Study dated November 2009.
If the Board of Supervisors concludes that this alternative approach would better serve the land use compatibility objectives of the Planned Unit District, attached below are suggested modifications to the project conditions of approval that would allow this alternative to be substituted for the design modification required by the Planning Commission. The Board could include this modification in a motion to approve the project.
Modification to Condition #1 to Allow for Alternative Board Action
Condition #1 shall be amended to include the following:
At least 45 days prior to issuance of a building permit, the applicant shall provide six (6) copies of a revised site plan (site plan, floor plans, building elevations, landscaping/irrigation, street frontage) for the review and approval of the Zoning Administrator. The revised plan shall provide details on planning design but otherwise omit construction detail (e.g., plumbing, etc.). One of the purposes of this condition shall be to protect the views of San Francisco City skyline and San Francisco Bay as may be seen from the existing residences at 1611 and 1619 Oakview Avenue. The revised plan shall provide for:
The elimination of the third story portion, of the second dwelling unit (western) that consists of 668 square feet of floor area. The area in which the western unit has been eliminated shall not be used to obstruct the views from 1611 and 1619 Oakview Avenue and shall be a maximum height of 29-feet 10-inches to the top of the parapet as measured from finished or natural grade, whichever is lower.
A deed restriction shall be recorded concurrently with the parcel map that prohibits any use of the western section of the roof that diminishes the views from 1611 and 1619 Oakview Avenue.
A third story located on the eastern side of the building shall be permitted with a floor area not to exceed 914 square feet, the size of the studio. The maximum height allowed for the third story is 37-feet 4-inches, as measured from finished or natural grade, whichever is lower.
The overall building envelope may include a maximum of three residential condominium units and one retail/parking garage unit, comprising of a total of four (4) parcels for vesting tentative map purposes.
CONCLUSION
After review of the appeal points above, staff finds the Commission's decision to be consistent with the General Plan policies, subdivision law and the 1983 Final Development Plan balancing the proposed development with the view, light and parking impacts to the surrounding neighborhood. Neither the appeal by the applicant nor the appeal by the Colusa Circle Improvement Association have merit. The issues presented have been previously addressed and staff sees no reason to change the Commission's decision.
Aruna Bhat, Department of Conservation and Development, presented the staff report.
Chair Bonilla called for public comment. The following people spoke:
Rodney Paul, Colusa Circle Improvement Association (Appellant);
Andrew Woolman, The Circle Partnership (Applicant and Appellant);
Tom Foley, resident of Kensington;
Sara Paul, resident of Kensington;
Ray Barraza, Kensington Municipal Advisory Council.
Mr. Woolman, representing the property owners, said that neither the recommended actions nor the alternative action provided were in the best interests of his clients, and WITHDREW the application.
By unanimous vote with all Supervisors present, the Board ACCEPTED THE WITHDRAWAL.