Tuesday, September 26, 2023 AGENDA Page 1
PROCLAMATION
CALLING A SPECIAL ME ETING OF THE
BERKELEY CITY COUNCI L
In accordance with the authority in me vested, I do hereby call the Berkeley City Council in special session as follows:
Tuesday, September 26, 2023
6:00 PM
SCHOOL DISTRICT BOARD ROOM - 1231 ADDISON STREET, BERKELEY, CA 94702
TELECONFERENCE LOCATION - 1404 LE ROY AVE, BERKELEY 94708
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – MARK HUMBERT
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Tuesday, September 26, 2023 AGENDA Page 2
Preliminary Matters
Roll Call:
Action Calendar – Public Hearings
Staff shall introduce the public hearing item and present their comments. For certain hearings, this is followed by five-minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak line up at the podium, or use the "raise hand" function in Zoom, to be recognized and to determine the number of persons interested in speaking at that time.
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1. ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt a Resolution to modify and approve the project approved by the Zoning Adjustments Board (ZAB) for Use Permit (# ZP2022-0104) to construct a new three-story, 4,528 square foot single family dwelling with two parking spaces and associated retaining walls located in the setbacks, on a 6,024 square foot vacant lot, and dismiss the appeal. The original project has been revised, as described in Response 1 of this report, to reduce the maximum building height by approximately two feet (from 41- feet, 11-inches to 39-feet, 5-inches).
Financial Implications: See report.
Contact: Jordan Klein, Planning and Development, (510) 981-7400
2. ZAB Appeal: 1598 University Avenue, Use Permit #ZP2022-0099 From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the decision of the Zoning Adjustments Board to approve Use Permit ZP#2022-0099, to demolish a non-residential structure and construct a 127,492 square foot, eight-story (89 feet-2 inches) mixed-use residential building containing 207 dwelling units (21 Very Low-Income) and a 5,943 square foot commercial space, with 39 automobile parking spaces and 92 bicycle parking spaces, utilizing State Density Bonus Law, subject to revised conditions of approval.
Financial Implications: See report.
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Tuesday, September 26, 2023 AGENDA Page 3
Adjournment
I hereby request that the City Clerk of the City of Berkeley cause personal notice to be given to each member of the Berkeley City Council on the time and place of said meeting, forthwith.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the official seal of the City of Berkeley to be affixed on this September 18, 2023.
Jesse Arreguin, Mayor
Public Notice – this Proclamation serves as the official agenda for this meeting.
ATTEST:
Date: September 18, 2023
Mark Numainville, City Clerk
NOTICE CONCERNING YOUR LEGAL RIGHTS : If you object to a decision by the City Council to approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. §1094.6(b)) or approve (Gov. Code 65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90- day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.
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Tuesday, September 26, 2023 AGENDA Page 4
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Item #1: ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104
1. Shona Armstrong, on behalf of Harper & Armstrong, LLP
Item #2: ZAB Appeal: 1598 University Avenue, Use Permit #ZP2022-0099
2. Nancy Richerson
3. Elizabeth Sharada Kowal
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
September 26, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning & Development Department Subject: ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104
RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt a Resolution to modify and approve the project approved by the Zoning Adjustments Board (ZAB) for Use Permit (# ZP2022-0104) to construct a new three-story, 4,528 square foot single family dwelling with two parking spaces and associated retaining walls located in the setbacks, on a 6,024 square foot vacant lot, and dismiss the appeal.
The original project has been revised, as described in Response 1 of this report, to reduce the maximum building height by approximately two feet (from 41-feet, 11-inches to 39-feet, 5-inches).
FISCAL IMPACTS OF RECOMMENDATION
None.
CURRENT SITUATION AND ITS EFFECTS
On August 9, 2022, John Newton submitted a Use Permit application on behalf of property owners Tarek and Michel Khoury to construct a new three-story (41 feet and 11 inches), 4,528 square foot single family dwelling with two parking spaces and an associated retaining wall located in the required front setback, on a 6,024 square foot vacant lot in the Single-Family Residential Zoning District in the Hillside Overlay (R-1H).
Prior to submitting this application, the applicant posted a pre-application poster at the project site. The applicant also submitted drawings of the proposed plans to all adjacent and abutting neighbors. No comments in opposition were received at that time. Story poles were installed on the project site in December 2022. No public comments were received after the installation of the story poles.
On January 19, 2023 the application was deemed complete. On April 13, 2023, the City mailed public hearing notices to property owners and occupants, and to interested
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
neighborhood organizations, and the City posted notices in three locations within the neighborhood. Staff received two public comments in opposition to the project.
On April 27, 2023, the ZAB conducted a public hearing for the use permit application (#ZP2022-0104). After hearing public comments and holding discussion, the ZAB approved the use permit by a vote of 6-0-1-2 (Ayes: Tregub, Duffy, Gaffney, Thompson, Yung, and Sanderson; Noes (none), Abstain: Lunaparra, Absent: O’Keefe, Hauser). The ZAB added conditions requiring the applicant to submit a transportation construction plan prior to issuance of a building permit, and conduct a geotechnical inspection during construction, as well as a recommendation to use bird-safe glass on all windows.
On May 9, 2023, staff issued a Notice of Decision of the ZAB decision, and on May 23, 2023, the matter was appealed to the City Council by Shona Armstrong, on behalf of Yoshika Wada, who resides at 696 Hilldale Avenue. The City Clerk set the public hearing date for September 26, 2023, and informed the appellants.
On or before September 12, 2023, staff posted the public hearing notice at the site and three nearby locations, and notices were mailed to property owners and occupants within 300 feet of the project site, and to all interested neighborhood organizations. The Council must conduct a public hearing to resolve the appeal.
BACKGROUND
The project site is located at 705 Euclid Avenue in the Berkeley Hills on steep terrain, within the Hillside Overlay Zone, in a residential area that includes a mix of one-, two-, and three-story single-family dwellings, with areas of open space in excess of that required, and mature vegetation. Residential lots in the neighborhood are generally rectangular in shape with some irregularities due to existing slopes and curved roadways. The neighborhood hills generally slope downwards from the northeast to the southwest and provide primary views westward towards the San Francisco Bay. Given the hilly terrain, the dwellings on the block tend to include attached one- or two-car garages, and/or uncovered parking spaces, within front setbacks. Access to dwellings is typically provided via exterior stairways.
The project site is an undeveloped upslope lot located on the east side of Euclid Avenue. It is bordered on the north by a public stairway (Halkin Walk, beyond which is a single-family home, 696 Hilldale Avenue), on the south by a three-story house at 713 Euclid Avenue, and to the east by a three-story house upslope at 702 Hilldale Avenue.
To the west, across Euclid Avenue, houses are on downslope lots, typically with only their top stories and/or garages at street level. The subject lot, similar to neighboring properties, provides a significant view of San Francisco Bay. Much of the lot is bordered by trees of various species, including one coast live oak on the northern border.
The applicant proposes to construct a three-story single-family dwelling, with two off- street parking spaces located within the required front setback due to the steep terrain.
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
If approved, the project will include two front decks to compensate for minimal flat ground available for usable open space, and have a maximum height of 39-feet, 5.5- inches. The project approved by ZAB had a maximum height of 41-feet, 11-inches, and has been revised to reduce the maximum height by moving the stair and elevator penthouse toward the rear of the roof (see Response 1 below for more information).
The proposed height is consistent with neighboring houses in the area.
The proposed first floor will be accessible by a lower entry porch and stairs, necessitated by the steep slope. This floor will contain two bedrooms and two bathrooms. The second floor will consist of two bedrooms, two bathrooms, and a laundry area. The top floor will be a mostly open floor plan with the kitchen, dining area, and family room, plus a half-bath, as well as access to a rear ground-level patio and an uncovered front deck. All floors and a rooftop deck will be accessible via an elevator and staircases. A stair and elevator “penthouse”1 structure on the roof provides access to the roof deck. A portion of the roof deck is covered.
Off-street parking, accessible from Euclid Avenue, will consist of an uncovered parking pad protected by retaining walls, with planter boxes above the retaining walls. The backyard will consist of a patio area, garden, and retaining wall, located in the setback, with access above via exterior steps.
Some of the trees on the lot will be removed in preparation for construction. Others located along the northern border of the property will remain. The Coast Live Oak located on the northern border will remain and will not be encroached upon by any of the new structures.
RATIONALE FOR RECOMMENDATION
The issues raised in the appellant’s letter and staff responses are provided below. For the sake of brevity, the appeal issues are not restated in their entirety. Please refer to the appeal letter and its attachments (Attachment 3) for the full text.
Issue 1:
The appellant asserts that the proposed home is five stories high, in violation of the development standards for the district, which allow a maximum of three stories.
Response 1:
For purposes of applying the zoning code, the number of stories in a structure is a technical measurement based on Berkeley Municipal Code (BMC) Section 23.106.060, Rules of Measurement. A story is defined as “the portion of a building included between 1 Penthouse, Mechanical. A room or enclosed structure, attached to the roof level for the uppermost story, for purposes of sheltering mechanical equipment, water tanks and/or vertical openings for stairwell and elevator shafts. Such a structure is considered a story if it contains usable floor area or habitable space (BMC 23.502.020).
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
the upper surface of any floor and the upper surface of the floor next above.” For purposes of this measurement, it specifies how to treat below grade spaces and penthouses, which is particularly relevant for buildings on steeply-sloped lots with stepped stories that follow the grade.
Below Grade Spaces: If the finished floor level directly above the ceiling of a basement, garage structure, cellar, or unused underfloor space is more than six feet above existing grade at any point, such basement, cellar, or unused underfloor space is considered a story.
Penthouses: A penthouse used for purposes other than shelter of mechanical equipment or shelter of vertical shaft openings in the roof is considered a story.
Stepped stories are not uncommon in the Hillside Overlay, and are typically measured in sections, considering the floors that are directly above and below one another.
While the original proposal was not five stories as the appellant states, upon further review, staff determined that part of the building was four stories because a portion of the penthouse was located directly above a portion of the first floor that exceeded six feet above grade. This can be seen in the vertical measurement from either side of the house at the front of the elevator penthouse. At that point the house, as depicted in the ZAB-approved plan set, was more than three stories in height (Figure 1).
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
Figure 1: ZAB-Approved Proposal (Marked to show story-calculation error)
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
In the weeks prior to the September 26, 2023 public hearing, staff alerted the applicants to this issue. In response, the applicants submitted new plans which involve moving the elevator shaft back four feet from its original location (see Attachment 1, Revised plans dated August 15, 2023). This change ensures that no portion of the first floor is more than six-feet above grade beneath the penthouse (Figure 2). This has resulted in a structure that is now compliant with the three-story maximum allowed by the BMC (Figure 2), and a reduced maximum height by approximately two feet.
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
Figure 2: Updated Proposal to correct story calculation (Elevator shaft moved back)
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
Issue 2:
The appellant asserts that the project does not serve the R-1 District purpose of “protecting adjacent properties from unreasonable obstruction of light and air,” and does not give reasonable protection to views, and that ZAB erred by finding that the project would not be detrimental to neighboring properties or the City’s general welfare.
Response 2:
In order to approve an Administrative Use Permit to exceed the 35-foot maximum building height in the Hillside Overlay Zone (HOZ), the reviewer (typically the Zoning Officer, or ZAB or City Council upon an appeal) must find that the project meets the general non-detriment findings (BMC 23.406.040(E)(1)) and that the project is consistent with the purposes of the Hillside Overlay District (BMC 23.210.020(A)).
One of the purposes of the Hillside Overlay Zone is to “give reasonable protection to views yet allow appropriate development of all property.” This provision does not state that no views can be affected; rather, the language of the purpose statement indicates that, in order to allow for new development, views might be affected to some extent. A single-family home is the primary allowed land use within the R-1H, and it is reasonable to expect that a vacant lot would be developed in this manner.
Another of the HOZ purpose statements is to “allow modifications in standard setback and height requirements when justified because of steep topography, irregular lot pattern, unusual street conditions, or other special aspects of the hillside areas.” The subject lot slopes steeply upward from the street, with an approximately 54 percent grade change from the front lot line to the back of the proposed single-family residence, and modification of applicable development standards are considered in the overlay purposes to address such situations.
One of the purposes of the R-1 District is to “protect adjacent properties from unreasonable obstruction of light and air” (BMC 23.202.050(A)(3)). The Non-Detriment Findings (BMC 23.406.040(E)(1)) that are required to approve a Use Permit can be used to address these purposes. The required Non-Detriment Findings are:
To approve a Use Permit, the ZAB shall find that the proposed project or use:
a. Will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or visiting in the area or neighborhood of the proposed use; and
b. Will not be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City.
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
In the present case, staff visited the site and examined the story poles, and also examined the shadow studies submitted by the applicant. The shadow studies did not demonstrate significant shadow effects on neighboring properties. In addition, photographic evidence provided by the applicant at the April 27, 2023 ZAB hearing revealed that, while there would be some obstruction of the view from the appellant’s 696 Hilldale Avenue property when looking to the south, there would still be a wide and unobstructed panoramic view of San Francisco Bay.
Issue 3:
The appellant asserts that approval does not serve the R-1 District purpose of “recognizing and protecting the existing pattern of development in the low- density areas of the city.”
Response 3:
The development of a single-family home in the R-1H district on a lot that is over 6,000 square feet (where 5,000 square feet is required) is consistent with the pattern of low- density development that already exists in the area. Streetscape drawings provided by the applicant (Exhibit B), and staff observations of the story poles, reveal that the roofline of the proposed structure would be at roughly the same elevation as the neighboring homes’ rooflines. Large three-story homes are the norm in the surrounding neighborhood. Staff’s conclusion is that the proposed home is consistent with the existing pattern of development in the neighborhood.
Issue 4:
The appellant asserts that the project favors a private benefit over a potential negative impact on the neighbors and neighborhood.
Response 4:
The proposed project complies with the development standards of the district, except where Administrative Use Permits (AUPs) have been applied for to increase the allowed maximum building height, construct parking spaces in the front setback, and construct retaining walls in the setbacks, consistent with BMC sections 23.210.020, 23.322.080, and 23.304.070(B), respectively. The non-detriment findings as noted in Response 2 above, and the steep terrain, support the issuance of these AUPs. The assertion that the project favors an individual over a group of individuals in the neighborhood is subjective and not under ZAB’s purview.
Issue 5:
ZAB’s approval process was flawed in that they ignored neighbor concerns and denied one neighbor (Theodore Raphael) the right to speak.
Response 5:
There may have been an error during the April 27, 2023 ZAB hearing which prevented Mr. Raphael from speaking via Zoom teleconference during the public comment period
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
for this item. However, a variety of concerns from other neighbors, including the appellant, were heard and considered by ZAB. In addition, the standard public notifications were mailed to all neighbors and posted on site prior to the hearing. Two public comments were received during this period: one from representatives of Yoshiko Wada of 696 Hilldale Avenue, and one from Mr. and Mrs. Raphael (see Attachment 4 for both). Subsequent to the ZAB hearing, Mr. and Mrs. Raphael submitted another letter, this one in support of the appeal, with comments in keeping with those heard by ZAB during the hearing (see Attachment 5).
ENVIRONMENTAL SUSTAINABILITY
The project approved by the ZAB is compliant with all applicable State and local environmental requirements and would be built and operated according to current codes for energy conservation, waste reduction, low toxicity, and other factors.
ALTERNATIVE ACTIONS CONSIDERED
Pursuant to BMC Section 23.410.040(G), the Council may (1) continue the public hearing, (2) reverse, affirm, or modify the ZAB’s decision, or (3) remand the matter to the ZAB.
ACTION DEADLINE
Pursuant to BMC Section 23.410.040(I), if the disposition of the appeal has not been determined within 30 days from the date the public hearing was closed by the Council (not including Council recess), then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied.
CONTACT PERSON
Jordan Klein, Director, Planning & Development Department, (510) 981-7534 Alene Pearson, Acting Land Use Planning Manager, Planning & Development Department (510) 981-7411
Russell Roe, Associate Planner, Planning & Development Department, (510) 981-7548 Attachments:
1: Resolution
Exhibit A: Revised Findings and Conditions
Exhibit B: Project Plans, revised August 15, 2023
2: April 27, 2023 ZAB hearing staff report with ZAB-approved Findings and Conditions and plans
3: Appeal letter, dated received May 23, 2023
4: Public Comments received prior to April 27, 2023 ZAB hearing 5: Public Comments received after the April 27, 2023 ZAB hearing
6. Index to Administrative Record
7. Administrative Record
8: Public Hearing Notice
ZAB Appeal: 705 Euclid Avenue, Use Permit #ZP2022-0104 PUBLIC HEARING September 26, 2023
RESOLUTION NO. ##,###-N.S.
MODIFYING THE ZONING ADJUSTMENTS BOARD DECISION TO APPROVE USE PERMIT #ZP2022-0104 TO CONSTRUCT A NEW THREE-STORY (39 FEET AND 5.5 INCHES), 4,528 SQUARE FOOT SINGLE FAMILY DWELLING WITH TWO PARKING
SPACES AND ASSOCIATED RETAINING WALLS LOCATED IN THE REQUIRED SETBACKS, ON A 6,024 SQUARE FOOT VACANT LOT, AND DISMISS THE APPEAL WHEREAS, on August 9, 2022, John Newton submitted an application for Use Permit #ZP2022-0104 to construct a new three-story 4,528 square foot single-family dwelling with two parking spaces and an associated retaining wall located in the required front setback on a 6,026 square foot vacant lot; and
WHEREAS, on January 19, 2023 staff deemed this application complete; and WHEREAS, on April 13, 2023, staff mailed public hearing notices to property owners and occupants within 300 feet of the project site, and to interested neighborhood organizations, and posted notices within the neighborhood at three locations; and WHEREAS, on April 27, 2023 the Zoning Adjustments Board (ZAB) conducted a public hearing for the Use Permit. After hearing public comments and holding discussion, the ZAB approved the Use Permit by a vote of 6-0-1-2, with added conditions for requiring a transportation construction plan to be submitted prior to issuance of a building permit, geotechnical construction inspections during construction, and encouraging the use of bird-safe glass; and
WHEREAS, on May 9, 2023, staff issued the notice of the ZAB decision; and WHEREAS, on May 23, 2023, the City Clerk receive an appeal filing from Shona Armstrong on behalf of Yoshiko Wada, and the City Clerk set the public hearing date for September 26, 2023; and
WHEREAS, on August 15, 2023, the applicant submitted revised plans to move the elevator shaft back four feet, thereby reducing the maximum building height approximately two feet, to ensure that the project complies with development standards; and
WHEREAS, on or before September 12, 2023, staff posted public hearing notices near the site and mailed notices to property owners and occupants within 300 feet of the project site and to all registered neighborhood groups that cover this area; and WHEREAS, on September 26, 2023, the Council held a public hearing to consider the ZAB’s decision, and in the opinion of this Council, the facts stated in, or ascertainable
from, the public record, including the staff report and comments made at the public hearing, warrant approving the project.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Council hereby adopts the findings and conditions in Exhibit A to modify the decision of the ZAB to approve Use Permit #ZP2022-0104, and adopts the project plans in Exhibit B; and dismisses the appeal.
Exhibits
Exhibit A: Findings and Conditions, September 26, 2023
Exhibit B: Project Plans, received August 15, 2023
A t t a c h m e n t 1, Exhibit A
F i n d i n g s a n d C o n d i t i o n s
SEPTEMBER 26, 2023
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
705 Euclid Avenue
Use Permit #ZP2022-0104 to construct a new three-story (39 feet and 5.5 inches), 4,528 square foot single family dwelling with two parking spaces and associated retaining wall located in the required front setback, on a 6,024 square foot vacant lot.
ZONING PERMITS REQUIRED
Use Permit for a new single-family dwelling, under Berkeley Municipal Code (BMC) Section
23.202.020(A)
Administrative Use Permit to construct a building with a maximum height over 35 feet in the Hillside Overlay Zone, under BMC Section 23210.020
Administrative Use Permit to construct two parking spaces in a required front setback, under BMC Section 23.322.080
Administrative Use Permit to construct an accessory structure (backyard retaining walls) encroaching into a required setback, under BMC Section 23.304.070(B) I. CEQA FINDINGS
1. The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations, §15000, et seq.) pursuant to Section 15303 of the CEQA Guidelines (“New Construction or Conversion of Small Structures”).
2. Furthermore, none of the exceptions in CEQA Guidelines Section 15300.2 apply, as follows:
(a) the site is not located in an environmentally sensitive area, (b) there are no cumulative impacts, (c) there are no significant effects, (d) the project is not located near a scenic highway, (e) the project site is not located on a hazardous waste site pursuant to Government Code Section 65962.5, and (f) the project would not affect any historical resource.
II. FINDINGS FOR APPROVAL
1. As required by Section 23.406.040(E)(1) of the BMC, the project, under the circumstances of this particular case existing at the time at which the application is granted, would not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS September 26, 2023 Page 2 of 16
property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City because:
A. Shadow studies submitted by the applicant show that new shadow effects would be minor due to the orientation of the new and existing structures, as well as the existence of tall trees along some of the property lines; and
B. Privacy intrusions would be minimal because the proposed front balconies are set mostly forward of the fronts of the neighboring houses at 696 Hilldale and 713 Euclid Avenue, the applicant has proposed obscured glass for the windows that have the greatest potential for causing privacy concerns, and new and existing trees will act as visual obstructions between the properties; and
C. Reduced availability of air will not be an issue because the proposed structure would be roughly 20-25 feet from its northern neighbor and more than 13 feet from its southern neighbor, and the project would exceed the usable open space requirement; and D. Story poles erected on the site show that significant views from neighboring properties will not be unreasonably affected.
III. OTHER FINDINGS FOR APPROVAL
2. As required by BMC 23.202.020(B), the Zoning Adjustments Board finds that:
A. The proposed project would meet all applicable development standards for the R-1 District except the height limits;
B. The proposed increased height limits are justifiable and approvable with an AUP because the proposed height is compatible with those of neighboring structures and story poles erected on the site did not reveal an unreasonable obstruction of significant views from neighboring properties; and
C. The proposed parking area, retaining walls, and exterior stairs are approvable in the front setback with an AUP because of the steep upward slope of the lot, and it would be consistent with many neighboring properties that have similar parking areas and stairs in their front setbacks; and
D. The proposed project would meet the purposes of the Single-Family Residential District and the Hillside Overlay Zone.
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IV. STANDARD CONDITIONS OF APPROVAL FOR ALL PROJECTS
The following conditions, as well as all other applicable provisions of the Zoning Ordinance, apply to this Permit:
1. Conditions Shall be Printed on Plans
The conditions of this Permit shall be printed on the second sheet of each plan set submitted for a building permit pursuant to this Use Permit, under the title ‘Use Permit Conditions.’ Additional sheets may also be used if the second sheet is not of sufficient size to list all of the conditions.
The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2” by 11” sheets are not acceptable.
2. Compliance Required (BMC Section 23.102.050)
All land uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations. Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property.
3. Approval Limited to Proposed Project and Replacement of Existing Uses (BMC Sections
23.404.060.B.1 and 2)
A. This Permit authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.
B. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.
4. Conformance to Approved Plans (BMC Section 23.404.060.B.4) All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.
5. Exercise and Expiration of Permits (BMC Section 23.404.060.C) A. A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.
B. A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.
C. The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction. The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant. A determination
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that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certification).
D. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.
6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D) Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit, except as set forth in Standard Condition #5 above.
7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless the Permit is modified by the Board. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.
8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless of the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.
9. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specified herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.
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V. ADDITIONAL CONDITIONS IMPOSED BY THE ZONING ADJUSTMENTS BOARD Pursuant to BMC 23.406.040.E, the Zoning Adjustments Board attaches the following additional conditions to this Permit:
Prior to Submittal of Any Building Permit:
10. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction-related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and actions to the project planner on a weekly basis. Please designate the name of this individual below:
Project Liaison ____________________________________________________ Name Phone #
11. Address Assignment. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Use Permit. The new address(es) shall be assigned and entered into the City’s database prior to the applicant’s submittal of a building permit application.
12. Tree Preservation Conditions. The Arborist Report dated May 26, 2022 shall be included with any application for a building permit, and shall be with the approved set of plans on the job site at all times while work is taking place.
13. Tree Protection Fencing. To protect the Specified Tree Protection Zone will be shown on all applicable site, landscape, grading, and utility plans. Such fencing shall comply with the guidelines specified in the Arborist Report dated May 26, 2022.
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Prior to Issuance of Any Building & Safety Permit (Demolition or Construction)
14. Construction and Demolition Diversion. Applicant shall submit a Construction Waste Management Plan that meets the requirements of BMC Chapter 19.37 including 100% diversion of asphalt, concrete, excavated soil and land-clearing debris and a minimum of 65% diversion of other nonhazardous construction and demolition waste.
15. Prior to the issuance of any building or demolition permit, the applicant shall prepare and submit a transportation construction plan to the City Traffic Engineer for approval. Please contact the Office of Transportation at (510) 981-7010, or 1947 Center Street, and ask to speak to a traffic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The TCP shall be consistent with any other requirements of the construction phase.
16. Toxics. The applicant shall contact the Toxics Management Division (TMD) at 1947 Center Street or (510) 981-7470 to determine which of the following documents are required and timing for their submittal:
A. Environmental Site Assessments:
1) Phase I & Phase II Environmental Site Assessments (latest ASTM 1527-13). A recent Phase I ESA (less than 2 years old*) shall be submitted to TMD for developments for:
All new commercial, industrial and mixed use developments and all large improvement projects.
All new residential buildings with 5 or more dwelling units located in the Environmental Management Area (or EMA).
EMA is available online
at: http://www.cityofberkeley.info/uploadedFiles/IT/Level_3_-_General/ema.pdf 2) Phase II ESA is required to evaluate Recognized Environmental Conditions (REC) identified in the Phase I or other RECs identified by TMD staff. The TMD may require a third-party toxicologist to review human or ecological health risks that may be identified.
The applicant may apply to the appropriate state, regional or county cleanup agency to evaluate the risks.
3) If the Phase I is over 2 years old, it will require a new site reconnaissance and interviews.
If the facility was subject to regulation under Title 15 of the Berkeley Municipal Code since the last Phase I was conducted, a new records review must be performed.
B. Soil and Groundwater Management Plan:
1) A Soil and Groundwater Management Plan (SGMP) shall be submitted to TMD for all non- residential projects, and residential or mixed-use projects with five or more dwelling units, that: (1) are in the Environmental Management Area (EMA) and (2) propose any excavations deeper than 5 feet below grade. The SGMP shall be site specific and identify procedures for soil and groundwater management including identification of pollutants
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and disposal methods. The SGMP will identify permits required and comply with all applicable local, state and regional requirements.
2) The SGMP shall require notification to TMD of any hazardous materials found in soils and groundwater during development. The SGMP will provide guidance on managing odors during excavation. The SGMP will provide the name and phone number of the individual responsible for implementing the SGMP and post the name and phone number for the person responding to community questions and complaints. 3) TMD may impose additional conditions as deemed necessary. All requirements of the approved SGMP shall be deemed conditions of approval of this Use Permit.
C. Building Materials Survey:
1) Prior to approving any permit for partial or complete demolition and renovation activities involving the removal of 20 square or lineal feet of interior or exterior walls, a building materials survey shall be conducted by a qualified professional. The survey shall include, but not be limited to, identification of any lead-based paint, asbestos, polychlorinated biphenyl (PBC) containing equipment, hydraulic fluids in elevators or lifts, refrigeration systems, treated wood and mercury containing devices (including fluorescent light bulbs and mercury switches). The Survey shall include plans on hazardous waste or hazardous materials removal, reuse or disposal procedures to be implemented that fully comply state hazardous waste generator requirements (22 California Code of Regulations 66260 et seq). The Survey becomes a condition of any building or demolition permit for the project.
Documentation evidencing disposal of hazardous waste in compliance with the survey shall be submitted to TMD within 30 days of the completion of the demolition. If asbestos is identified, Bay Area Air Quality Management District Regulation 11-2-401.3 a notification must be made and the J number must be made available to the City of Berkeley Permit Service Center.
D. Hazardous Materials Business Plan:
1) A Hazardous Materials Business Plan (HMBP) in compliance with BMC Section
15.12.040 shall be submitted electronically at http://cers.calepa.ca.gov/ within 30 days if on-site hazardous materials exceed BMC 15.20.040. HMBP requirement can be found at http://ci.berkeley.ca.us/hmr/
Prior to Issuance of Any Building (Construction) Permit
17. HVAC Noise Reduction. Prior to the issuance of building permits, the project applicant shall submit plans that show the location, type, and design of proposed heating, ventilation, and cooling (HVAC) equipment. In addition, the applicant shall provide product specification sheets or a report from a qualified acoustical consultant showing that operation of the proposed HVAC equipment will meet the City’s exterior noise requirements in BMC Section 13.40.050. The City’s Planning and Development Department shall review the submitted plans, including the selected HVAC equipment, to verify compliance with exterior noise standards.
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18. Solar Photovoltaic (Solar PV) and Battery Energy Storage Systems (ESS). A solar PV system shall be installed, subject to specific limited exceptions, as specified by the Berkeley Energy Code (BMC Chapter 19.36). Energy storage system (ESS) readiness (new single-family, duplex, and townhouse homes) or ESS installation (new multifamily and most nonresidential buildings) shall be completed as specified by BMC Chapter 19.36. Location of the solar PV system and the ESS, if applicable, shall be noted on the construction plans.
19. Electric Vehicle (EV) Charging. Each dwelling unit shall install a listed raceway, wiring, and load capacity to allow for future Level 2 (40 amp) plug-in electric vehicle (EV) charging system installation, or any more stringent EV charging requirements as specified by the Berkeley Green Code (BMC Chapter 19.37). Readiness for EV charging and EV charging station installations shall be noted on the construction plans.
20. Water Efficient Landscaping. Landscaping, totaling 500 square feet of more of new landscaping or 2,500 square feet or more of renovated irrigated area, shall comply with the State’s Model Water Efficient Landscape Ordinance (MWELO). MWELO-compliant landscape documentation including a planting, grading, and irrigation plan shall be included in site plans. Water budget calculations are also required for landscapes of 2,500 square feet or more and shall be included in site plans. The reference evapotranspiration rate (ETo) for Berkeley is 41.8.
21. Prohibition of Natural Gas Infrastructure in New Buildings. The project shall comply with the City of Berkeley Prohibition of Natural Gas Infrastructure in New Buildings (BMC Chapter 12.80). The building permit plan set submission shall both include a cover sheet declaration: ‘Natural Gas- Free Design as required by BMC Chapter 12.80.
22. Recycling and Organics Collection. Applicant shall provide recycling and organics collection areas for occupants, clearly marked on site plans, which comply with the Alameda County Mandatory Recycling Ordinance (ACWMA Ordinance 2012-01).
23. Public Works ADA. Plans submitted for building permit shall include replacement of sidewalk, curb, gutter, and other streetscape improvements, as necessary to comply with current City of Berkeley standards for accessibility.
24. Geotechnical Plan Review. The applicant’s geotechnical consultant should review an approve all geotechnical aspects of the final project building a grading plans (i.e., site preparation and grading, shoring design, site surface an subsurface drainage improvements including site runoff discharge, and design parameters for foundations and retaining walls) to ensure that their recommendations have been properly incorporated.
The Project Geotechnical Consultant should clarity anticipated depths to bedrock materials across the site for structural design (i.e., at what depth can bedrock skin friction be used).
The results of the plan review should be summarized by the Geotechnical Consultant in a letter and submitted to the City Engineer for review and approval prior to issuance of building permits.
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During Construction:
25. Construction Hours. Construction activity shall be limited to between the hours of 8:00 AM and 6:00 PM on Monday through Friday, and between 9:00 AM and Noon on Saturday. No construction-related activity shall occur on Sunday or any Federal Holiday.
26. Tree Protection Fencing to protect the Specified Tree Protection Zone must be installed prior to any site or demolition work, in accordance with the approved plans, and remain during all stages of site work and construction.
27. Tree Monitoring. Trees identified for protection in the Arborist Report dated May 26, 2022 shall be monitored monthly during construction by the project arborist.
28. Geotechnical Report. The contractors shall implement the recommendations of the Geotechnical Soil Report, dated March 15, 2022, including site preparation and earthwork, surface and subsurface drainage, foundation reinforcements, retaining wall design, lateral lode resistance, and seismic reinforcements.
29. Geotechnical Construction Inspections. The Geotechnical Consultant should inspect, test (as needed), and approve all geotechnical aspects of the project construction. The inspections should include, but not necessarily be limited to: site preparation and grading, site surface and subsurface drainage improvements, and excavations for foundations and other improvements prior to the placement of steel and concrete. The Consultant should inspect and approve of temporary shoring measures, as applicable during grading for proposed parking areas and residential imp0rovements.
The results of these inspections and the as-built conditions of the project should be described by the geotechnical consultant in a letter and submitted to the City Engineer for review prior to final (granting of occupancy) project approval.
30. The height and location of the proposed structure, property lines and spot elevations shall be verified by a licensed surveyor or engineer on site after foundation forms are placed, but before pouring concrete or placing construction material in its permanent position. This verification shall be to the satisfaction of the Zoning Officer.
31. Public Works - Implement BAAQMD-Recommended Measures during Construction. For all proposed projects, BAAQMD recommends implementing all the Basic Construction Mitigation Measures, listed below to meet the best management practices threshold for fugitive dust:
A. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.
B. All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
C. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.
D. All vehicle speeds on unpaved roads shall be limited to 15 mph.
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E. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible.
Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
F. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.
G. All construction equipment shall be maintained and properly tuned in accordance with manufacturer specifications. All equipment shall be checked by a certified visible emissions evaluator.
H. Post a publicly visible sign with the telephone number and person to contact at the lead agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District ‘s phone number shall also be visible to ensure compliance with applicable regulations.
32. Construction and Demolition Diversion. Divert debris according to your plan and collect required documentation. Get construction debris receipts from sorting facilities in order to verify diversion requirements. Upload recycling and disposal receipts if using Green Halo and submit online for City review and approval prior to final inspection. Alternatively, complete the second page of the original Construction Waste Management Plan and present it, along with your construction debris receipts, to the Building Inspector by the final inspection to demonstrate diversion rate compliance. The Zoning Officer may request summary reports at more frequent intervals, as necessary to ensure compliance with this requirement.
33. Low-Carbon Concrete. The project shall maintain compliance with the Berkeley Green Code (BMC Chapter 19.37) including use of concrete mix design with a cement reduction of at least 25%. Documentation on concrete mix design shall be available at all times at the construction site for review by City Staff.
34. Transportation Construction Plan. The applicant and all persons associated with the project are hereby notified that a Transportation Construction Plan (TCP) is required for all phases of construction, particularly for the following activities:
Alterations, closures, or blockages to sidewalks, pedestrian paths or vehicle travel lanes (including bicycle lanes);
Storage of building materials, dumpsters, debris anywhere in the public ROW; Provision of exclusive contractor parking on-street; or Significant truck activity.
Please contact the Office of Transportation at (510) 981-7010, or 1947 Center Street, and ask to speak to a traffic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The TCP shall be consistent with any other requirements of the construction phase.
Contact the Permit Service Center (PSC) at 1947 Center Street or 981-7500 for details on obtaining Construction/No Parking Permits (and associated signs and accompanying dashboard permits). Please note that the Zoning Officer and/or Traffic Engineer may limit off-site parking of
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construction-related vehicles if necessary to protect the health, safety or convenience of the surrounding neighborhood. A current copy of this Plan shall be available at all times at the construction site for review by City Staff.
35. Avoid Disturbance of Nesting Birds. Initial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the MBTA and CFGC, nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground- disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.
36. Archaeological Resources (Ongoing throughout demolition, grading, and/or construction).
Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.
Therefore:
A. In the event that any prehistoric or historic subsurface cultural resources are discovered during ground disturbing activities, all work within 50 feet of the resources shall be halted and the project applicant and/or lead agency shall consult with a qualified archaeologist, historian or paleontologist to assess the significance of the find.
B. If any find is determined to be significant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appropriate avoidance measures or other appropriate measure, with the ultimate determination to be made by the City of Berkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by the qualified professional according to current professional standards.
C. In considering any suggested measure proposed by the qualified professional, the project applicant shall determine whether avoidance is necessary or feasible in light of factors such as the uniqueness of the find, project design, costs, and other considerations.
D. If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery) shall be instituted. Work may proceed on other parts of the project site while mitigation measures for cultural resources is carried out.
E. If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.
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37. Human Remains (Ongoing throughout demolition, grading, and/or construction). In the event that human skeletal remains are uncovered at the project site during ground-disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50-foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities. Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.
38. Paleontological Resources (Ongoing throughout demolition, grading, and/or construction). In the event of an unanticipated discovery of a paleontological resource during construction, excavations within 50 feet of the find shall be temporarily halted or diverted until the discovery is examined by a qualified paleontologist (per Society of Vertebrate Paleontology standards [SVP 1995,1996]). The qualified paleontologist shall document the discovery as needed, evaluate the potential resource, and assess the significance of the find. The paleontologist shall notify the appropriate agencies to determine procedures that would be followed before construction is allowed to resume at the location of the find. If the City determines that avoidance is not feasible, the paleontologist shall prepare an excavation plan for mitigating the effect of the project on the qualities that make the resource important, and such plan shall be implemented.
The plan shall be submitted to the City for review and approval.
39. Paleontological Resources (Ongoing throughout demolition, grading, and/or construction).
A. Qualified Paleontologist. The project applicant shall retain a Qualified Paleontologist prior to excavations or ground disturbance that will exceed three feet in depth. The Qualified Paleontologist shall direct all mitigation measures related to paleontological resources. A qualified professional paleontologist is defined by the SVP standards as an individual preferably with an M.S. or Ph.D. in paleontology or geology who is experienced with paleontological procedures and techniques, who is knowledgeable in the geology of California, and who has worked as a paleontological mitigation project supervisor for a least two years (SVP 2010).
B. Paleontological Worker Environmental Awareness Program (WEAP). Prior to ground disturbance, the applicant shall incorporate information on paleontological resources into the Project’s Worker Environmental Awareness Training (WEAP) materials, or a stand-alone Paleontological Resources WEAP shall be submitted to the Department of Planning and Development at the City of Berkeley. The Qualified Paleontologist or his or her designee shall conduct training for construction personnel regarding the appearance of fossils and the procedures for notifying paleontological staff should fossils be discovered by construction staff. The Paleontological WEAP training shall be fulfilled simultaneously with the overall WEAP training, or at the first preconstruction meeting at which a Qualified Paleontologist attends prior to ground disturbance. Printed literature (handouts) shall accompany the initial
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training. Following the initial WEAP training, all new workers and contractors must be trained prior to conducting ground disturbance work.
C. Paleontological Monitoring. The extent of required paleontological monitoring for the project shall be determined by the Qualified Paleontologist based on an evaluation of the previously undisturbed geologic units exposed during ground disturbing activity. The Qualified Paleontologist shall conduct and initial spot check and evaluation of geologic conditions for ground disturbing activity for excavations between 5-10 feet below ground surface (BGS).
The evaluation shall be based on field evidence including lithology of geologic units and results of microscreening or other inspections for fossil resources. If the paleontologist determines that geologic units exposed between 5-10 feet BGS have high paleontological sensitivity, then full-time monitoring shall be conducted for the duration of ground disturbing activity. If sediments between 5-10 feet BGS are determined to not be paleontological sensitive, spot checks should be conducted again for ground disturbance between 10-15 feet BGS and again for ground disturbance between 15-20 feet BGS, and again to the full depth of ground disturbance. If spot checks indicate low or no paleontological sensitivity, or if full time monitoring results in no fossil discoveries once the full depth of ground disturbance has been reached, paleontological monitoring can be discontinued for the remainder of project activity. Monitoring shall be reinstated if any new ground disturbances are required to depths exceeding previous depths of previous work, and reduction or suspension shall be reconsidered by the Qualified Paleontologist at that time.
D. In the event of a fossil discovery by the paleontological monitor or construction personnel, all work in the immediate vicinity of the find shall cease. A Qualified Paleontologist shall evaluate the find before restarting construction activity in the area. If it is determined that the fossil(s) is (are) scientifically significant, the Qualified Paleontologist shall complete the following conditions to mitigate impacts to significant fossil resources:
1) Salvage of Fossils. If fossils are discovered, the paleontological monitor shall have the authority to halt or temporarily divert construction equipment within 50 feet of the find until the monitor and/or lead paleontologist evaluate the discovery and determine if the fossil may be considered significant. Typically, fossils can be safely salvaged quickly by a single paleontologist and not disrupt construction activity. In some cases, larger fossils (such as complete skeletons or large mammal fossils) require more extensive excavation and longer salvage periods. In this case, the Construction Contractor may be requested to supply heavy equipment and an operator to assist in the rapid removal of a large fossil specimen(s) or sediment sample(s). Bulk matrix sampling may be necessary to recover small invertebrates or microvertebrates from within paleontologically- sensitive Quaternary old alluvial deposits.
2) Preparation and Curation of Recovered Fossils. Once salvaged, significant fossils shall be identified to the lowest possible taxonomic level, prepared to a curation-ready condition, and curated in a scientific institution with a permanent paleontological collection (such as the UCMP), along with all pertinent field notes, photos, data, and maps. Fossils of undetermined significance at the time of collection may also warrant curation at the discretion of the Qualified Paleontologist.
E. Final Paleontological Mitigation Report. Upon completion of ground disturbing activity (and curation of fossils if necessary) the Qualified Paleontologist shall prepare a final report
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describing the results of the paleontological monitoring efforts associated with the project.
The report shall include a summary of the field and laboratory methods, an overview of the project geology and paleontology, a list of taxa recovered (if any), an analysis of fossils recovered (if any) and their scientific significance, and recommendations. The report shall be submitted to the Department of Planning and Development at the City of Berkeley. If the monitoring efforts produced fossils, then a copy of the report shall also be submitted to the designated museum repository.
40. Halt Work/Unanticipated Discovery of Tribal Cultural Resources. In the event that cultural resources of Native American origin are identified during construction, all work within 50 feet of the discovery shall be redirected. The project applicant and project construction contractor shall notify the City Planning Department within 24 hours. The City will again contact any tribes who have requested consultation under AB 52, as well as contact a qualified archaeologist, to evaluate the resources and situation and provide recommendations. If it is determined that the resource is a tribal cultural resource and thus significant under CEQA, a mitigation plan shall be prepared and implemented in accordance with State guidelines and in consultation with Native American groups. If the resource cannot be avoided, additional measures to avoid or reduce impacts to the resource and to address tribal concerns may be required.
41. Stormwater Requirements. The applicant shall demonstrate compliance with the requirements of the City’s National Pollution Discharge Elimination System (NPDES) permit as described in BMC Section 17.20. The following conditions apply:
A. The project plans shall identify and show site-specific Best Management Practices (BMPs) appropriate to activities conducted on-site to limit to the maximum extent practicable the discharge of pollutants to the City's storm drainage system, regardless of season or weather conditions.
B. Trash enclosures and/or recycling area(s) shall be covered; no other area shall drain onto this area. Drains in any wash or process area shall not discharge to the storm drain system; these drains should connect to the sanitary sewer. Applicant shall contact the City of Berkeley and EBMUD for specific connection and discharge requirements. Discharges to the sanitary sewer are subject to the review, approval and conditions of the City of Berkeley and EBMUD.
C. Landscaping shall be designed with efficient irrigation to reduce runoff, promote surface infiltration and minimize the use of fertilizers and pesticides that contribute to stormwater pollution. Where feasible, landscaping should be designed and operated to treat runoff.
When and where possible, xeriscape and drought tolerant plants shall be incorporated into new development plans.
D. Design, location and maintenance requirements and schedules for any stormwater quality treatment structural controls shall be submitted to the Department of Public Works for review with respect to reasonable adequacy of the controls. The review does not relieve the property owner of the responsibility for complying with BMC Chapter 17.20 and future revisions to the City's overall stormwater quality ordinances. This review shall be shall be conducted prior to the issuance of a Building Permit.
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS September 26, 2023 Page 15 of 16
E. All paved outdoor storage areas must be designed to reduce/limit the potential for runoff to contact pollutants.
F. All on-site storm drain inlets/catch basins must be cleaned at least once a year immediately prior to the rainy season. The property owner shall be responsible for all costs associated with proper operation and maintenance of all storm drainage facilities (pipelines, inlets, catch basins, outlets, etc.) associated with the project, unless the City accepts such facilities by Council action. Additional cleaning may be required by City of Berkeley Public Works Engineering Dept.
G. All on-site storm drain inlets must be labeled “No Dumping – Drains to Bay” or equivalent using methods approved by the City.
H. Most washing and/or steam cleaning must be done at an appropriately equipped facility that drains to the sanitary sewer. Any outdoor washing or pressure washing must be managed in such a way that there is no discharge or soaps or other pollutants to the storm drain.
Sanitary connections are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.
I. Sidewalks and parking lots shall be swept regularly to prevent the accumulation of litter and debris. If pressure washed, debris must be trapped and collected to prevent entry to the storm drain system. If any cleaning agent or degreaser is used, wash water shall not discharge to the storm drains; wash waters should be collected and discharged to the sanitary sewer. Discharges to the sanitary sewer are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.
J. The applicant is responsible for ensuring that all contractors and sub-contractors are aware of and implement all stormwater quality control measures. Failure to comply with the approved construction BMPs shall result in the issuance of correction notices, citations, or a project stop work order.
42. Public Works. All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one-eighth millimeter thick and secured to the ground.
43. Public Works. The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.
44. Public Works. The project sponsor shall maintain sandbags or other devices around the site perimeter during the rainy season to prevent on-site soils from being washed off-site and into the storm drain system. The project sponsor shall comply with all City ordinances regarding construction and grading.
45. Public Works. Prior to any excavation, grading, clearing, or other activities involving soil disturbance during the rainy season the applicant shall obtain approval of an erosion prevention plan by the Building and Safety Division and the Public Works Department. The applicant shall
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS September 26, 2023 Page 16 of 16
be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.
46. Public Works. The removal or obstruction of any fire hydrant shall require the submission of a plan to the City’s Public Works Department for the relocation of the fire hydrant during construction.
47. Public Works. If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.
Prior to Final Inspection or Issuance of Occupancy Permit:
48. Compliance with Conditions. The project shall conform to the plans and statements in the Use Permit. The developer is responsible for providing sufficient evidence to demonstrate compliance with the requirements throughout the implementation of this Use Permit.
49. Compliance with Approved Plan. The project shall conform to the plans and statements in the Use Permit. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated December 29, 2022, except as modified by conditions of approval.
At All Times:
50. Exterior Lighting. All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare beyond the subject property.
51. Rooftop Projections. No additional rooftop or elevator equipment shall be added to exceed the approved maximum roof height without submission of an application for a Use Permit Modification, subject to Board review and approval.
52. Drainage Patterns. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights-of-way. Drainage plans shall be submitted for approval of the Building & Safety Division and Public Works Department, if required.
53. Electrical Meter. Only one electrical meter fixture may be installed per dwelling unit.
54. Bird-Safe Glass. The use of bird-safe glass is encouraged for all windows.
55. This Use Permit, including these and all other required conditions, shall be posted in conspicuous location, available for viewing by any interested party.
Attachment 1, Exhibit B
Z ONING
A DJU
STMENT S
B OARD
Staff Report
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mai
l: [email protected]
FOR BOARD ACTION
APRIL 27, 2023
705 Euclid Avenue
Use Permit #ZP2022-0104 to construct a new three-story (41 feet and 11 inches), 4,528 square foot single family dwelling with two parking spaces and associated retaining wall located in the required front setback, on a 6,024 square foot vacant lot.
I. Background
A. Land Use Designations:
• General Plan: LDR- Low Density Residential
• Zoning: R-1H- Single Family Residential, Hillside Overlay Zone B. Zoning Permits Required:
• Use Permit for a new single-family dwelling, under Berkeley Municipal Code (BMC) Section 23.202.020(A)
• Administrative Use Permit to construct a building with a max imum height over 35 feet in the Hillside Overlay Zone, under BMC Section 23.210.020 • Administrative Use Permit to construct two parking spaces in a required front setback, under BMC Section 23.322.080
• Administrative Use Permit to construct an accessory structure (backyard retaining walls) encroaching into a required setback, under BMC Section 23.304.070(B) C. CEQA Recommendation: It
is staff’s recommendation to the Zoning Adjustments
Board (ZAB) that the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code Section 21000, et seq. and California Code of Regulations, Section 1500, et seq.) pursuant to Section 15303 of the CEQA Guidelines (“New Construction or Conversion of Small Structures”). The determination is made by ZAB.
D. Parties Involved:
• Applicant John Newton, 5666 Telegraph Avenue, Oakland, CA • Property Owner Tarek and Michel Khoury, 903 Ventura Avenue, Albany, CA Attachment 2
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Figure 1: Vicinity Map
Legend
R-1H: Single-Family Residential District within the Hillside Overlay Zone 705 Euclid
Ave.
N
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Figure 2: Site Plan
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Figure 3: Front Elevation
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Figure 3: Side Elevations
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Table 1: Land Use Information
Location Existing Use Zoning District General Plan Designation Subject Property Vacant lot R-1H LDR- Low Density Residential Surrounding
Properties
North Single-Family
dwelling R-1H LDR- Low Density Residential
South Single-Family
dwelling R-1H LDR- Low Density Residential
East Single-Family
dwelling R-1H LDR- Low Density Residential
West Single-Family
dwelling R-1H LDR- Low Density Residential
Table 2: Special Characteristics
Characteristic
Applies
to
Project?
Explanation
Affordable Child Care Fee for
qualifying non-residential projects
(Per Resolution 66,618-N.S.)
No These fees apply to projects with net new 7,500
square feet of non-residential floor area. The
project involves only new residential floor area;
therefore, this requirement does not apply.
Affordable Housing Fee for qualifying
non-residential projects (Per
Resolution 66,617-N.S.)
No
Affordable Housing Mitigations for
rental housing projects (Per BMC
22.20.065)
No
This fee applies to projects that propose 5 or more
rental dwelling units. This project does not propose
rental units; therefore, this does not apply.
Creeks No The project site is not within a creek buffer zone.
Density Bonus No
Pursuant to California Government Code Section
65917.2, a project must contain five or more
residential units to qualify for state density bonus.
This project would construct a single-family
dwelling; therefore, this does not apply.
Natural Gas Prohibition
(Per BMC 12.80.020) Yes The project is subject to the natural gas prohibition.
Historic Resources No The proposed project is located on a vacant lot.
Housing Accountability Act (California
Government Code Section
65589.5(j))
No
A “housing development project” means a use
consisting of residential units only, mixed use
developments consisting of residential and
nonresidential uses with at least two-thirds of the
square footage designated for residential use, or
transitional or supportive housing. Because the
term “units” is plural, a development has to consist
of more than one unit to qualify under the Housing
Accountability Act (HAA)
(California Government Code Section 65589.5,
subdivision (h)(2).). Therefore,
HAA does not apply to this project.
Housing Crisis Act of 2019 (SB330) No
A development has to consist of more than one
unit to qualify under the HAA. The proposed
project includes a single-family dwelling, and does
not meet the definition of a “Housing Development
Project” per California Government Code Section
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65589.5(h)(2)1. Therefore, SB 330 does not apply.
Oak Trees Yes
There is one protected Coast Live Oak on the
project site. Three protection measures were
provided by the City’s Arborist as Conditions of
Approval, refer to Attachment 3.
Rent Controlled Units No The proposed project is located on a vacant lot.
Residential Preferred Parking (RPP) No The project site is not located within the City of Berkeley RPP area
Seismic Hazards (SHMA) Yes
The project site is located within the California
Geological Survey Alquist Priolo Earthquake Fault
Zone. The applicant submitted a geotechnical
investigation for the project (insert name of report
preparer and year), which was peer reviewed by
the City’s peer reviewer who recommended
geotechnical approval of the subject land use
permit application subject to specific geotechnical
conditions of approval.
Soil/Groundwater Contamination No
The project site is not listed on the Cortese List (an
annually updated list of hazardous materials sites
pursuant to Government Code Section 65962.5),
nor is it within the City’s Environmental
Management Area.
Transit Yes There is an AC Transit stop located approximately 260 feet south of the project site.
Table 3: Project Chronology
Date Action
August 9, 2022 Application submitted
August 30, 2022 Application deemed incomplete
September 29, 2022 New plans submitted
October 21, 2022 Application deemed incomplete
December 29, 2022 New plans submitted
January 19, 2023 Application deemed complete
April 13, 2023 Public hearing notices mailed/posted
April 27, 2023 ZAB hearing
Table
4: Development Standards
Standard
BMC Sections 23.202.050 &
23.210.020
Existing Addition/
(Reduction)
Proposed
Total
Permitted/
Required
Lot Area (sq. ft.) 6,024 0 6 ,024 5,000 min
Gross Floor Area (sq. ft.) n/a 4,528 4,528 No maximum
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Floor Area Ratio n/a n/a n/a No maximum
Dwelling Units Total n/a 1 1 1 max
Affordable n/a n/a n/a n/a
Building
Height
Average (ft.) n/a 40’ - .5” 40’-.5” 28 max1
Maximum (ft.) n/a 41’-11” 41’-11” 35 max1
Stories n/a 3 3 3 max
Building
Setbacks (ft.)
Front n/a 23’-3” 23’-3” 20 min1
Rear n/a 23’-11” 23’-11” 20 min1
Left Side n/a 4’ 4’ 4 min
Right Side n/a 4’-11” 4’-11” 4 min
Lot Coverage (%) n/a 39.1% 39.1% 40 max
Usable Open Space (sq. ft.) n/a 1,155 1,155 400 min
Parking Automobile n/a 2 2 1 min
Bicycle n/a n/a n/a n/a
1. Threshold can be exceeded with an AUP
2. Abbreviations: sq.ft.= square feet; ft = feet; min.=minimum; max.=maximum; % = percent
II. Project Setting
A. Neighborhood/Area Description: The project site is located in a residential area with a mix of one-, two-, and three-story single-family dwellings, with areas of open space in excess of that required by the BMC, and mature vegetation. Lots in the neighborhood are generally rectangular in shape with some irregularities due to existing slopes and curved roadways. The neighborhood hills generally slope downwards from the northeast to the southwest and provide primary views westward towards the San Francisco Bay. Given the hilly terrain, the dwellings on the block tend to include attached one- or two-car garages, and/or uncovered parking spaces, within front setbacks. Access to dwellings is typically provided via exterior stairways.
B. Site Conditions: The project site is an undeveloped upslope lot on the east side of Euclid Avenue in the North Berkeley hills. It is bordered on the north by a public stairway (Halkin Walk), on the south by a three-story house at 713 Euclid Avenue, and to the east by a three-story house upslope at 702 Hilldale Avenue. To the west, across Euclid Avenue, houses are on downslope lots, typically with only their top stories and/or garages at street level. The lot, like it ’s neighbors, provides a significant view of San Francisco Bay. Much of the lot is bordered by trees of various species, including one coast live oak on the lot’s northern border.
III. Project Description
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The project would construct a three-story single-family dwelling, with two off-street parking spaces located within the required front setback (out of necessity because of the steep terrain). The project will include two front decks to compensate for minimal flat ground available for usable open space, and have a maximum height of 41-feet, 11- inches. The height is consistent neighboring houses in the area.
The proposed first floor will be accessible by a lower entry porch and stairs, necessitated by the steep slope. This floor will contain two bedrooms and two bathrooms. The second floor will consist of two more bedrooms, two more bathrooms, and a laundry area. The top floor will be a mostly open floor plan with the kitchen, dining area, and family room, plus a half-bath. There will be access to a rear ground-level patio and an uncovered front deck. All floors and a rooftop deck will be accessible via an elevator and staircases.
Off-street parking, accessible from Euclid Avenue, will consist of an uncovered parking pad protected by retaining walls, with planter boxes above the retaining walls. The backyard will consist of a patio area, garden, and retaining wall, located in the setback, with access above via exterior steps.
Some of the trees on the lot will be removed in preparation for construction. Others, located along the northern border of the property will remain. The Coast Live Oak located on the northern border will remain and will not be encroached upon by any of the new structures.
IV. Community Discussion
A. Neighbor/Community Concerns: Prior to submitting this application to the city, the applicant posted a pre -application poster at the project site. The applicant also submitted drawings of the proposed plans to all adjacent and abutting neighbors (Attachment 2). No comments in opposition were received at that time.
Story poles were installed on the project site in December 2022. No public comments were received after the installation of the story poles.
On April 13, 2023, the City mailed public hearing notices to property owners and occupants, and to interested neighborhood organizations, and the City posted notices within the neighborhood in three locations. At the time of this writing, staff has received one public comment, a letter in opposition to the project from the neighbor to the north at 696 Hilldale Avenue (which overlooks Euclid Avenue)(Attachment 5).
B. Committee Review: This project is not subject to review by the Design Review Committee or the Landmarks Preservation Commission because it is not a use located in a district subject to design review, commercial or manufacturing district, and does not involve the demolition of a non-residential building, respectively.
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V. Issues and Analysis
A. Findings for Use Permit Approval in the R-1(H) District: Pursuant to BMC Section
23.202.020(B), a new single-family dwelling is allowed in the R-1 zoning district with a Use Permit, provided that its siting meets applicable development standards and subject to the non-detriment finding. As shown in Table 4, the proposed project would meet or exceed all development standards for the dwelling, with the exception of the height limits. The average and maximum heights within the Hillside Overlay Zone may be increased to above specified limits with an Administrative Use Permit (AUP) (BMC
23.210.020(C)(2).
Staff believe that the increased height above the 35-foot maximum are justifiable with an AUP because the height of the proposed structure is compatible with those of neighboring structures. Further, installation of the story poles on the project site did not reveal an unreasonable obstruction of significant views from neighboring properties.
As noted above, no public comments were received after the installation of the story poles.
In the Hillside Overlay District, an AUP to reduce required setbacks (BMC
23.210.020(C)(4)) can be approved upon finding the project is consistent with the purpose of the Hillside Overlay District as stated in BMC 23.210.020(A). While the main dwelling meets the 20-foot front setback, the proposed parking area, and it’s associated retaining walls, as well as the front exterior stairs, would be located within the front setback. This is necessary due to the steep upward slope of the lot. It is also consistent with many neighboring properties that have similar parking areas and stairs within their front setbacks.
The proposed project would meet the following purposes of the Hillside overlay zone pursuant to BMC 23.21.020(A):
1. Implement General Plan policies for Hillside Development;
2. Protect the safety and health of residents where steep topography, unusual street conditions and proximity to the wildland- urban interface create severe risk from wildfire;
3. Protect the character of Berkeley’s Hillside Districts and their immediate environs;
4. G ive reasonable protection to views yet allow appropriate development of all property; and
5. Allow modifications in standard yard and height requirements when justified because of steep topography, irregular lot pattern, unusual street conditions, or other special aspects of the Hillside District area.
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B. General Non- Detriment Finding: Per BMC 23.406.040(E )(1), s taff believes the project would not be detrimental to the health, safety, peace, morals, comfort, or general welfare of residents or workers in the area because it would be consistent with the development pattern in the area. The applicant proposes to construct a single- family dwelling in a neighborhood comprised of single -family dwellings . with the siting/design of the proposed structure would also be compatible with the surrounding built environment. Staff believes that the proposed project would not unreasonably obstruct sunlight, privacy, air, or views as analyzed below:
1. Sunlight/Shadow: Shadow studies submitted by the applicant document the existing and proposed shadow effects at three times each day at the summer and winter solstices and on February 25. The studies reveal that shadow effects on neighboring properties would be minimal. The most significant potential effects would be on 696 Hilldale Avenue for a few hours a day in the winter months. However, these effects are mitigated by the fact that si gnificant shadows are already cast on that lot by the existing row of tall trees along Halkin Walk. Staff recommends that the Board find that these potential impacts are non-detrimental.
2. Privacy: T
he proposed dwelling would have first, second, and third f loor windows on both sides. Some of these windows could potentially be perceived by neighbors as affecting their privacy. However, the applicant has proposed obscured glass on the windows that have the greatest potential for causing privacy issues. Views from other windows would be obscured by existing and new trees along both sides of the lot.
The proposed front balconies are set mostly forw
ard of the fronts of the
neighboring houses at 696 Hilldale Avenue and 713 Euclid Avenue. Therefore, they would not pose a significant threat to privacy. Staff believes the proposed dwelling would not be detrimental regarding privacy.
3. Air: The proposed structure would be approx imately 20-25 feet from its northern neighbor and more than 13 feet from its southern neighbor. The project would also exceed the usable open space requirement. Therefore, it is not expected to have an effect on available fresh air.
4. Views: Per BMC 23.502.020 (Defined Terms), a significant view is a 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. As described above under Project Setting, dwellings in the immediate neighborhood of the proposed project have significant views of San Francisco Bay and the Golden Gate. The story poles installed on the project site revealed that these views will not be substantially affected by the new building.
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VI. Other Considerations
A. General Plan Consistency: The 2002 General Plan contains several policies applicable to the project, including the following:
1. Policy LU-3–I nfill Development: Encourage infill development that is architecturally and environmentally sensitive, embodies principles of sustainable planning and construction, and is compatible with neighboring land uses and architectural design and scale.
2. Policy LU-7– N
eighborhood Quality of Life, Action A: Require that new development be consistent with zoning standards and compatible with the scale, historic character, and surrounding uses in the area.
3. Policy UD-32–Sha
dows: New buildings should be designed to minimize impacts on solar access and minimize detrimental shadows.
4. Policy H-33–Reg ional Housing Needs : Encourage adequate housing production to meet City needs and the City’s share of regional housing needs.
Staff Analysis : The pr
oposed project will be infill in a mostly developed
neighborhood and will constitute an increase in the available housing units in the region. Its design is compatible with the surrounding houses in the neighborhood, and its effects on light and significant views will be minimal.
VI. Recommendation
Because of the project’s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, staff recommends that the Zoning Adjustments Board:
APPROVE use permit #ZP2022- 0104 pursuant to Section 23.406.040.D and subject to the attached Findings and Conditions (see Attachment 1).
Attachments:
1. Findings and Conditions
2. Project Plans, received December 29, 2022
3. Arborist’s Report dated May 26, 2022
4. Notice of Public Hearing
5. Public Comment, received April 17, 2023
Staff Planner: Russell Roe, [email protected], (510) 981-7548
Attachment 1
Findings and Condition s
APRIL 27, 2023
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
705 Euclid Avenue
Use Permit #ZP2022-0104 to construct a new three-story (41 feet and 11 inches), 4,528 square foot single family dwelling with two parking spaces and associated retaining wall located in the required front setback, on a 6,024 square foot vacant lot.
ZONING PERMITS REQUIRED
• Use Permit for a new single- family dwelling, under Berkeley Municipal Code ( BMC) Section
23.202.020(A)
• Administrative Use Permit to construct a building with a max imum height over 35 feet in the Hillside Overlay Zone, under BMC Section 23210.020
• Administrative Use Permit to construct two parking spaces in a required front setback, under BMC Section 23.322.080
• Administrative Use Permit to construct an accessory structure (backyard retaining walls) encroaching into a required setback, under BMC Section 23.304.070(B)
I. CEQA FINDINGS
1. The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations, §15000, et seq.) pursuant to Section 153 03 of the CEQA Guidelines (“ New Construction or Conversion of Small Structures”).
2. Furthermore, none of the exceptions in CEQA Guidelines Section 15300.2 apply, as follows:
(a) the site is not located in an environmentally sensitive area, (b) there are no cumulative impacts, (c) there are no significant effects, (d) the project is not located near a scenic highway, (e) the project site is not located on a hazardous waste site pursuant to Government Code Section 65962.5, and (f) the project would not affect any historical resource.
II. FINDINGS FOR
APPROVAL
1. As required by Section 23.406.040(E)(1) of the BMC, the project, under the circumstances of this particular case existing at the time at which the application is granted, would not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City because:
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A. Shadow studies submitted by the applicant show that new shadow effects would be minor due to the orientation of the new and existing structures, as well as the existence of tall trees along some of the property lines; and
B. Privacy intrusions would be minimal because the proposed front balconies are set mostly forward of the fronts of the neighboring houses at 696 Hilldale and 713 Euclid Avenue, the applicant has proposed obscured glass for the windows that have the greatest potential for causing privacy concerns, and new and existing trees will act as visual obstructions between the properties; and
C. Reduced availability of air will not be an issue because the proposed structure would be roughly 20- 25 feet from its northern neighbor and more than 13 feet from its southern neighbor, and the project would exceed the usable open space requirement; and D. Story poles erected on the site show that significant views from neighboring properties will not be unreasonably affected.
III. OTHER FI
NDINGS FOR APPROVAL
2. As required by BMC 23.202.020(B), the Zoning Adjustments Board finds that:
A. The proposed project would meet all applicable development standards for the R-1 District except the height limits;
B. The proposed increased height limits are justifiable and approvable with an AUP because the proposed height is compatible with those of neighboring structures and story poles erected on the site did not reveal an unreasonable obstruction of significant views from neighboring properties; and
C. The proposed parking area, retaining walls, and exterior stairs are approvable in the front setback with an AUP because of the steep upward slope of the lot, and it would be consistent with many neighboring properties that have similar parking areas and stairs in their front setbacks; and
D. The proposed project would meet the purposes of the Single- Family Residential District and the Hillside Overlay Zone.
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IV. STANDARD CONDITIONS OF APPROVAL FOR ALL PROJECTS
The following conditions, as well as all other applicable provisions of the Zoning Ordinance, apply to this Permit:
1. Conditions Sha ll be Printed on Plans
The conditions of this Permit shall be printed on the seco nd sheet of each plan set submitted for
a building permit pursuant to this Use Permit, under the title ‘Use Permit Conditions.’ Additional sheets may also be used if the second sheet is not of sufficient size to list all of the conditions.
The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2” by 11” sheets are not acceptable.
2. Compliance Required (BMC Section 23.102.050)
All land uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations . Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property.
3. Approval Limited to Proposed Project and Replacement of Existing Uses (BMC Sections
23.404.060.B.1 and 2)
A. This Permit authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.
B. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.
4. Conformance to Approved Plans (BMC Section 23.404.060.B.4) All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.
5. Exercise and Expiration of Permits (BMC Section 23.404.060.C) A. A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.
B. A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.
C. The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction. The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant. A determination
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that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certification).
D. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.
6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D) Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re- established without obtaining a new permit, except as set forth in Standard Condition #5 above.
7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless the Permit is modified by the Board. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.
8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless o f the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.
9. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specified herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.
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V. ADDITIONAL CONDITIONS IMPOSED BY THE ZONING ADJUSTMENTS BOARD Pursuant to BMC 23.406.040.E , the Zoning Adjustments Board attaches the following additional conditions to this Permit:
Prior to Submittal of Any Building Permit:
10. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction- related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and actions to the project planner on a weekly basis. Please designate the name of this individual below:
Project Liaison ____________________________________________________ Name Phone #
11. Address Assignment. T he applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Use Permit. The new address(es) shall be assigned and entered into the City’s database prior to the applicant’s submittal of a building permit application.
12. Tree Preservation Conditions. The Arborist Report dated M ay 26, 2022 shall be included with
any application for a building permit, and shall be with the approved set of plans on the job site at all times while work is taking place.
13. Tree Protection Fencing . To protect the Speci fied Tree Protection Zone wil l be shown on all
applicable site, landscape, grading, and utility plans. Such fencing shall comply with the guidelines specified in the Arborist Report dated May 26, 2022.
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Prior to Issuance of Any Building & Safety Permit (Demolition or Construction)
14. Construction and Demolition Diversion. Applicant shall submit a Construction Waste Management Plan that meets the requirements of BMC Chapter 19.37 including 100% diversion of asphalt, concrete, excavated soil and land -clearing debris and a minimum of 65% diversion of other nonhazardous construction and demolition waste.
15. Prior to the issuance of any building or demolition permit, the applicant shall prepare and submit a t
ransportation construction plan to the City Traffic Engineer for approval. Please contact the Office of Transportation at (510) 981-7010, or 1947 Center Street, and ask to speak to a tr affic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The TCP shall be consistent with any other requirements of the construction phase.
16. Toxics.
The applicant shall contact the Toxics Management Division (TMD) at 1947 Center Street or (510) 981-7470 to determine which of the following documents are required and timing for their submittal:
A. Environmental Site Assessments:
1) Phase I &
Phase II Environmental Site Assessments (latest ASTM 1527-13). A recent Phase I ESA (less than 2 years old*) shall be submitted to TMD for developments for:
• All new commercial, industrial and mixed use developments and all large improvement projects.
• All new residential buildings with 5 or more dwelling units located in the Environmental Management Area (or EMA).
• EMA is available online
at: http://www.cityofberkeley.info/uploadedFiles/IT/Level_3_-_General/ema.pdf 2) Phase II ESA is required to evaluate Recognized Environmental Conditions (REC) identified in the Phase I or other RECs identified by TMD staff. The TMD may require a third-party toxicologist to review human or ecological health risks that may be identified.
The applicant may apply to the appropriate state, regional or county cleanup agency to evaluate the risks.
3) If the Phase I is over 2 years old, it will require a new site reconnaissance and interviews.
If the facility was subject to regulation under Title 15 of the Berkeley Municipal Code since the last Phase I was conducted, a new records review must be performed.
B. Soil and Groundwater Management Plan:
1) A Soil and Groundwater Management Plan (SGMP) shall be submitted to TMD for all non- residential projects, and residential or mixed-use projects with five or more dwelling units, that: (1) are in the Environmental Management Area (EMA) and (2) propose any excavations deeper than 5 feet below grade. The SGMP shall be site specific and identify procedures for soi l and groundwater management including identification of pollutants
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and disposal methods. The SGMP will identify permits required and comply with all applicable local, state and regional requirements.
2) The SGMP shall require notification to TMD of any hazardous materials found in soils and groundwater during development. The SGMP will provide guidance on managing odors during excavation. The SGMP will provide the name and phone number of the individual responsible for implementing the SGMP and post the name and phone number for the person responding to community questions and complaints. 3) TMD may impose additional conditions as deemed necessary. All requirements of the approved SGMP shall be deemed conditions of approval of this Use Permit.
C. Building Materials Survey:
1) Prior to approving any permit for partial or complete demolition and renovation activities involving the removal of 20 square or lineal feet of interior or exterior walls, a building materials survey shall be conducted by a qualified professional. The survey shall include, but not be limited to, identification of any lead- based paint, asbestos, polychlorinated biphenyl (PBC) containing equipment, hydraulic fluids in elevators or lifts, refrigeration systems, treated wood and mercury containing devices (including fluorescent light bulbs and mercury switches). The Survey shall include plans on hazardous waste or hazardous materials removal, reuse or disposal procedures to be implemented that fully comply state hazardous waste generator requirements ( 22 California Code of Regulations 66260 et seq). The Survey becomes a condition of any building or demolition permit for the project.
Documentation evidencing disposal of hazardous waste in compliance with the survey shall be submitted to TMD within 30 days of the completion of the demolition. If asbestos is identified, Bay Area Air Quality Management District Regulation 11-2- 401.3 a notification must be made and the J number must be made available to the City of Berkeley Permit Service Center.
D. Hazardous Materials Business Plan:
1) A Hazardous Materials Business Plan (HMBP) in compliance with BMC Section
15.12.040 shall be submitted electronically at http://cers.calepa.ca.gov/ within 30 days if on-site hazardous materials exceed BMC 15.20.040. HMBP requirement can be found at http://ci.berkeley.ca.us/hmr/
Prior to Issuance of Any Building (Construction) Permit
17. HVAC Noise Reduction . Prior to the issuance of building permits, the project applicant shall submit plans that show the location, type, and design of proposed heating, ventilation, and cooling (HVAC) equipment. In addition, the applicant shall provide product specification sheets or a report from a qualified acoustical consultant showing that operation of the proposed HVAC equipment will meet the City’s exterior noise requirements in BMC Section 13.40.050. The City’s Planning and Development Department shall review the submitted plans, including the selected HVAC equipment, to verify compliance with exterior noise standards.
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18. Solar Photovoltaic (Solar PV) and Battery Energy Storage Systems (ESS). A solar PV system shall be installed, subject to specific limited exceptions, as specified by the Berkeley Energy Code (BMC Chapter 19.36). Energy storage system (ESS) readiness (new single-family, duplex, and townhouse homes) or ESS installation (new multifamily and most nonresidential buildings) shall be completed as specified by BMC Chapter 19.36. Location of the solar PV system and the ESS, if applicable, shall be noted on the construction plans.
19. Electric Vehicle (EV) Charging. Eac
h dwelling unit shall install a listed raceway, wiring, and load capacity to allow for future Level 2 (40 amp) plug -in electric vehicle (EV) charging system installation, or any more stringent EV charging requirements as specified by the Berkeley Green Code (BMC Chapter 19.37). Readiness for EV charging and EV charging station installations shall be noted on the construction plans.
20. Water Efficient Landscaping. Lands
caping, totaling 500 square feet of more of new landscaping or 2,500 square feet or more of renovated irrigated area, shall comply with the State’s Model Water Efficient Landscape Ordinance (MWELO). MWELO-compliant landscape documentation including a planting, grading, and irrigation plan shall be included in site plans. Water budget calculations are also required for landscapes of 2,500 square feet or more and shall be included in site plans. The reference evapotranspiration rate (ETo) for Berkeley is 41.8.
21. Prohibition of Natural Gas Infrastructure in New Buildings. The project shall comply with the City
of Berkeley Prohibition of Natural Gas Infrastructure in New Buildings (BMC Chapter 12.80). The building permit plan set submission shall both include a cover sheet declaration: ‘Natural Gas- Free Design as required by BMC Chapter 12.80.
22. Recycling and Organics Colle
ction. Applicant shall provide recycling and organics collection areas for occupants, clearly marked on site plans, which comply with the Alameda County Mandatory Recycling Ordinance (ACWMA Ordinance 2012-01).
23. Public Wo
rks ADA. Plans submitted for building permit shall include replacement of sidewalk, curb, gutter, and other streetscape improvements, as necessary to comply with current City of Berkeley standards for accessibility.
24. Geotechnical Plan Review. The applicant’s geotechnical consultant should review an approve all geotechnical aspects of the final project building a grading plans (i.e., site preparation and grading, shoring design, site surface an subsurface drainage improvements including site runoff discharge, and design parameters for f oundations and retaining walls) to ensure that their recommendations have been properly incorporated.
The Project Geotechnical Consultant should clarity anticipated depths to bedrock materials across the site for structural design (i.e., at what depth can bedroc k skin friction be used).
The results of the plan review should be summarized by the Geotechnical Consultant in a letter and submitted to the City Engineer for review and approval prior to issuance of building permits.
During Construction:
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25. Construction Hours. Construction activity shall be limited to between the hours of 8:00 AM and 6:00 PM on Monday through Friday, and between 9:00 AM and Noon on Saturday. No construction-related activity shall occur on Sunday or any Federal Holiday.
26. Tree Pr otection Fencing to protect the Specified Tree Protection Zone must be installed prior to any site or demolition work, in accordance with the approved plans, and remain during all stages of site work and construction.
27. Tree Monitoring. Trees identified for protection in the Arborist Report dated May 26, 2022 shall be monitored monthly during construction by the project arborist.
28. Geotechnical Report. The contractors shall implement the recommendations of the Geotechnical Soil Report, dated March 15, 2022, including site preparation and earthwork, surface and subsurface drainage, foundation reinforcements, retaining wall design, lateral lode resistance, and seismic reinforcements.
29. Geotechnical Cons
truction Inspections. The Geotechnical Consultant should inspect, test (as needed), and approve all geotechnical aspects of the project construction. The inspections should include, but not necessarily be limited to: site preparation and grading, site surface and subsurface drainage improvements, and excavations for foundations and other improvements prior to the placement of steel and concrete. The Consultant should inspect and approve of temporary shoring measures, as applicable during grading for proposed parking areas and residential imp0rovements.
The results of these inspections and the as -built conditions of the project should be described by the geotechnical consultant in a letter and submitted to the City Engineer for review prior to final (granting of occupancy) project approval.
30. T
he height and location of the proposed structure, property lines and spot elevations shall be verified by a licensed surveyor or engineer on site after foundation forms are placed, but before pouring concrete or placing construction material in its permanent position. This verification shall be to the satisfaction of the Zoning Officer.
31. Public Works - Im plement BAAQMD-Recommended Measures during Construction . For all proposed projects, BAAQMD recommends implementing all the Basic Construction Mitigation Measures, listed below to meet the best management practices threshold for fugitive dust:
A. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.
B. All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
C. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.
D. All vehicle speeds on unpaved roads shall be limited to 15 mph.
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E. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible.
Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
F. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.
G. All construction equipment shall be maintained and properly tuned in accordance with manufacturer specifications. All equipment shall be checked by a certified visible emissions evaluator.
H. Post a publicly visible sign with the telephone number and person to contact at the lead agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District ‘s phone number shall also be visible to ensure compliance with applicable regulations.
32. Construction and Demolition Diversion. Divert debris according to your plan and collect required
documentation. Get construction debris receipts from sorting facilities in order to verify diversion requirements. Upload recycling and disposal receipts if using Green Halo and submit online for City review and approval prior to final inspection. Alternatively, complete the second page of the original Construction Waste Management Plan and present it, along with your construction debris receipts, to the Building Inspector by the final inspection to demonstrate diversion rate compliance. The Zoning Officer may request summary reports at more frequent intervals, as necessary to ensure compliance with this requirement.
33. Low-Carbon
Concrete. The project shall maintain compliance with the Berkeley Green Code (BMC Chapter 19.37) including use of concrete mix design with a cement reduction of at least 25%. Documentation on concrete mix design shall be available at all times at the construction site for review by City Staff.
34. Transportation Cons
truction Plan. The applicant and all persons associated with the project are hereby notified that a Transportation Construction Plan (TCP) is required for all phases of construction, particularly for the following activities:
• Alterations, closures, or blockages to sidewalks, pedestrian paths or vehicle travel lanes (i
ncluding bicycle lanes);
• Storage of building materials, dumpsters, debris anywhere in the public ROW; • Provision of exclusive contractor parking on-street; or • Significant truck activity.
Please contact the Office of Transportation at (510) 981-7010, or 1947 Center Street, and ask to speak to a traffic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The TCP shall be consistent with any other requirements of the construction phase.
Contact the Permit Service Center (PSC) at 1947 Center Street or 981- 7500 for details on obtaining Construction/No Parking Permits (and associated signs and accompanying dashboard permits). Please note that the Zoning Officer and/or Traffic Engineer may limit off -site parking of
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construction-related vehicles if necessary to protect the health, safety or convenience of the surrounding neighborhood. A current copy of this Plan shall be available at all times at the construction site for review by City Staff.
35. Avoid Disturbance of Nesting Birds . Ini tial site disturbance activities, including vegetation and concrete removal, shall be prohibited during the general avian nesting season (February 1 to August 30), if feasible. If nesting season avoidance is not feasible, the applicant shall retain a qualified biologist to conduct a preconstruction nesting bird survey to determine the presence/absence, location, and activity status of any active nests on or adjacent to the project site. The extent of the survey buffer area surrounding the site shall be established by the qualified biologist to ensure that direct and indirect effects to nesting birds are avoided. To avoid the destruction of active nests and to protect the reproductive success of birds protected by the MBTA and CFGC, nesting bird surveys shall be performed not more than 14 days prior to scheduled vegetation and concrete removal. In the event that active nests are discovered, a suitable buffer (typically a minimum buffer of 50 feet for passerines and a minimum buffer of 250 feet for raptors) shall be established around such active nests and no construction shall be allowed inside the buffer areas until a qualified biologist has determined that the nest is no longer active (e.g., the nestlings have fledged and are no longer reliant on the nest). No ground- disturbing activities shall occur within this buffer until the qualified biologist has confirmed that breeding/nesting is completed and the young have fledged the nest. Nesting bird surveys are not required for construction activities occurring between August 31 and January 31.
36. Archaeological Resources ( Ongoi
ng throughout demolition, grading, and/or construction) .
Pursuant to CEQA Guidelines section 15064.5(f), “provisions for historical or unique archaeological resources accidentally discovered during construction” should be instituted.
Therefore:
A. In the event that any prehistoric or historic subsurface cultural resources are discovered during ground disturbing activities, all work within 50 feet of the resources shall be halted and the project applicant and/or lead agency shall consult with a qualified archaeologist, historian or paleontologist to assess the significance of the find.
B. If any find is determined to be significant, representatives of the project proponent and/or lead agency and the qualified professional would meet to determine the appropriate avoidance measures or other appropriate measure, with the ultimate determination to be made by the City of Berkeley. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by the qualified professional according to current professional standards.
C. In considering any suggested measure proposed by the qualified professional, the project applicant shall determine whether avoidance is necessary or feasible in light of factors such as the uniqueness of the find, project design, costs, and other considerations.
D. If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery) shall be instituted. Work may proceed on other parts of the project site while mitigation measures for cultural resources is carried out.
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E. If significant materials are recovered, the qualified professional shall prepare a report on the findings for submittal to the Northwest Information Center.
37. Human Remains ( Ong
oing throughout demolition, grading, and/or construction) . In the event that human skeletal remains are uncovered at the project site during ground-disturbing activities, all work shall immediately halt and the Alameda County Coroner shall be contacted to evaluate the remains, and following the procedures and protocols pursuant to Section 15064.5 (e)(1) of the CEQA Guidelines. If the County Coroner determines that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code, and all excavation and site preparation activities shall cease within a 50- foot radius of the find until appropriate arrangements are made. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities. Monitoring, data recovery, determination of significance and avoidance measures (if applicable) shall be completed expeditiously.
38. Paleontological Resources (Ong
oing throughout demolition, grading, and/or construction). In the event of an unanticipated discovery of a paleontological resource during construction, excavations within 50 feet of the find shall be temporarily halted or diverted until the discovery is examined by a qualified paleontologist (per Society of Vertebrate Paleontology standards [SVP 1995,1996]). The qualified paleontologist shall document the discovery as needed, evaluate the potential resource, and assess the significance of the find. The paleontologist shall notify the appropriate agencies to determine procedures that would be followed before construction is allowed to resume at the location of the find. If the City determines that avoidance is not feasible, the paleontologist shall prepare an excavation plan for mitigating the effect of the project on the qualities that make the resource important, and such plan shall be implemented.
The plan shall be submitted to the City for review and approval.
39. Paleontological Re
sources (Ongoing throughout demolition, grading, and/or construction).
A. Qualified Paleontologist. The project applicant shall retain a Qualified Paleontologist prior to excavations or ground disturbance that will exceed three feet in depth . The Qualified Paleontologist shall direct all mitigation measures related to paleontological resources. A qualified professional paleontologist is defined by the SVP standards as an individual preferably with an M.S. or Ph.D. in paleontology or geology who is experienced with paleontological procedures and techniques, who is knowledgeable in the geology of California, and who has worked as a paleontological mitigation project supervisor for a least two years (SVP 2010).
B. Paleontological Worker Environmental Awareness Program (WEAP). Prior to ground disturbance, the applicant shall incorporate information on paleontological resources into the Project’s Worker Environmental Awareness Training (WEAP) materials, or a stand-alone Paleontological Resources WEAP shall be submitted to the Department of Planning and Development at the City of Berkeley. The Qualified Paleontologist or his or her designee shall conduct training for construction personnel regarding the appearance of fossils and the procedures for notifying paleontological staff should fossils be discovered by construction staff. The Paleontological WEAP training shall be fulfilled simultaneously with the overall
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WEAP training, or at the first preconstruction meeting at which a Qualified Paleontologist attends prior to ground disturbance. Printed literature (handouts) shall accompany the initial training. Following the initial WEAP training, all new workers and contractors must be trained prior to conducting ground disturbance work.
C. Paleontological Monitoring. The extent of required paleontological monitoring for the project shall be determined by the Qualified Paleontologist based on an evaluation of the previously undisturbed geologic units exposed during ground disturbing activity. The Qualified Paleontologist shall conduct and initial spot check and evaluation of geologic conditions for ground disturbing activity for excavations between 5- 10 feet below ground surface (BGS).
The evaluation shall be based on field evidence including lithology of geologic unit s and results of microscreening or other inspections for fossil resources. If the paleontologist determines that geologic units exposed between 5- 10 feet BGS have high paleontological sensitivity, then full-time monitoring shall be conducted for the duration of ground disturbing activity. If sediments between 5- 10 feet BGS are determined to not be paleontological sensitive, spot checks should be conducted again for ground disturbance between 10- 15 feet BGS and again for ground disturbance between 15- 20 feet BGS, and again to the full depth of ground disturbance. If spot checks indicate low or no paleontological sensitivity, or if full time monitoring results in no fossil discoveries once the full depth of ground disturbance has been reached, paleontological monitoring can be discontinued for the remainder of project activity. Monitoring shall be reinstated if any new ground disturbances are required to depths exceeding previous depths of previous work, and reduction or suspension shall be reconsidered by the Qualified Paleontologist at that time.
D. In the event of a fossil discovery by the paleontological monitor or construction personnel, all work in the immediate vicinity of the find shall cease. A Qualified Paleontologist shall evaluate the find before restarting construction activity in the area. If it is determined that the fossil(s) is (are) scientifically significant, the Qualified Paleontologist shall complete the following conditions to mitigate impacts to significant fossil resources:
1) Salvage of Fossils. If fossils are discovered, the paleontological monitor shall have the authority to halt or temporarily divert construction equipment within 50 feet of the find until the monitor and/or lead paleontologist evaluate the discovery and determine if the fossil may be considered significant. Typically, fossils can be safely salvaged quickly by a single paleontologist and not disrupt construction activity. In some cases, larger fossils (such as complete skeletons or large mammal fossils) require more extensive excavation and longer salvage periods. In this case, the Construction Contractor may be requested to supply heavy equipment and an operator to assist in the rapid removal of a large fossil specimen(s) or sediment sample(s). Bulk matrix sampling may be necessary to recover small invertebrates or microvertebrates from within paleontologically- sensitive Quaternary old alluvial deposits.
2) Preparation and Curation of Recovered Fossils. Once salvaged, significant fossils shall be identified to the lowest possible taxonomic level, prepared to a curation-ready condition, and curated in a scientific institution with a permanent paleontological collection (such as the UCMP), along with all pertinent field notes, photos, data, and maps. Fossils of undetermined significance at the time of collection may also warrant curation at the discretion of the Qualified Paleontologist.
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File: G:\LANDUSE\Projects by Address\Euclid\0705\ZP2022-0104\DOCUMENT FINALS\2023-04-27_ZAB_ATT1_705 Euclid_Findings and Conditions_post-hearing updates.docx
E. Final Paleontological Mitigation Report. Upon completion of ground disturbing activity (and curation of fossils if necessary) the Qualified Paleontologist shall prepare a final report describing the results of the paleontological monitoring efforts associated with the project .
The report shall include a summary of the field and laboratory methods, an overview of the project geology and paleontology, a list of taxa recovered (if any), an analysis of fossils recovered (if any) and their scientific significance, and recommendations. The report shall be submitted to the Department of Planning and Development at the City of Berkeley. If the monitoring efforts produced fossils, then a copy of the report shall also be submitted to the designated museum repository.
40. Halt Work/Unanticipated Discovery of Tribal Cultural Resources . In the event that cultural
resources of Native American origin are identified during construction, all work within 50 feet of the discovery shall be redirected. The project applicant and project construction contractor shall notify the City Planning Department within 24 hours. The City will again contact any tribes who have requested consultation under AB 52, as well as contact a qualified archaeologist, to evaluate the resources and situation and provide recommendations. If it is determined that the resource is a tribal cultural resource and thus significant under CEQA, a mitigation plan shall be prepared and implemented in accordance with State guidelines and in consultation with Native American groups. If the resource cannot be avoided, additional measures to avoid or reduce impacts to the resource and to address tribal concerns may be required.
41. Stormwater Requirements. Th
e applicant shall demonstrate compliance with the requirements of the City’s National Pollution Discharge Elimination System (NPDES) permit as described in BMC Section 17.20. The following conditions apply:
A. The project plans shall identify and show site- spec ific Best Management Practices (BMPs) appropriate to activities conducted on- site to limit to the maximum extent practicable the discharge of pollutants to the City's storm drainage system, regardless of season or weather conditions.
B. Trash enclosures and/or recycling area(s) shall be covered; no other area shall drain onto thi
s area. Drains in any wash or process area shall not discharge to the storm drain system; these drains should connect to the sanitary sewer. Applicant shall contact the City of Berkeley and EBMUD for specific connection and discharge requirements. Discharges to the sanitary sewer are subject to the review, approval and conditions of the City of Berkeley and EBMUD.
C. Landscaping shall be designed with efficient irrigation to reduce runoff, promote surface infiltration and minimize the use of fertilizers and pesticides that contribute to stormwater pollution. Where feasible, landscaping should be designed and operated to treat runoff.
When and where possible, xeriscape and drought tolerant plants shall be incorporated into new development plans.
D. Design, location and maintenance requirements and schedules for any stormwater quality treatment structural controls shall be submitted to the Department of Public Works for review with respect to reasonable adequacy of the controls. The review does not relieve the property owner of the responsibility for complying with BMC Chapter 17.20 and future
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS April 27, 2023 Page 15 of 17
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revisions to the City's overall stormwater quality ordinances. This review shall be shall be conducted prior to the issuance of a Building Permit.
E. All paved outdoor storage areas must be designed to reduce/limit the potential for runoff to contact pollutants.
F. All on-site storm drain inlets/catch basins must be cleaned at least once a year immediately prior to the rainy season. The property owner shall be responsible for all costs associated with proper operation and maintenance of all storm drainage facilities (pipelines, inlets, catch basins, outlets, etc.) associated with the project, unless the City accepts such facilities by Council action. Additional cleaning may be required by City of Berkeley Public Works Engineering Dept.
G. All on-site storm drain inlets must be labeled “No Dumping – Drains to Bay” or equivalent using methods approved by the City.
H. Most washing and/or steam cleaning must be done at an appropriately equipped facility that drains to the sanitary sewer. Any outdoor washing or pressure washing must be managed in such a way that there is no discharge or soaps or other pollutants to the storm drain.
Sanitary connections are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.
I. Sidewalks and parking lots shall be swept regularly to prevent the accumulation of litter and debris. If pressure washed, debris must be trapped and collected to prevent entry to the storm drain system. If any cleaning agent or degreaser is used, wash water shall not discharge to the storm drains; wash waters should be collected and discharged to the sanitary sewer. Discharges to the sanitary sewer are subject to the review, approval and conditions of the sanitary district with jurisdiction for receiving the discharge.
J. The applicant is responsible for ensuring that all contractors and sub-contractors are aware of and implement all stormwater quality control measures. Failure to comply with the approved construction BMPs shall result in the issuance of correction notices, citations, or a project stop work order.
42. Public Works.
All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one- eighth millimeter thick and secured to the ground.
43. Public Works.
The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.
44. Public Works.
The project sponsor shall maintain sandbags or other devices around the site perimeter during the rainy season to prevent on- site soils from being washed off -site and into the storm drain system. The project sponsor shall comply with all City ordinances regarding construction and grading.
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS April 27, 2023 Page 16 of 17
File: G:\LANDUSE\Projects by Address\Euclid\0705\ZP2022-0104\DOCUMENT FINALS\2023-04-27_ZAB_ATT1_705 Euclid_Findings and Conditions_post-hearing updates.docx
45. Public Works . Prior to any excavation, grading, clearing, or other activities involving soil disturbance during the rainy season the applicant shall obtain approval of an erosion prevention plan by the Building and Safety Division and the Public Works Department. The applicant shall be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.
46. Public Works. T he removal or obstruction of any fire hydrant shall require the submission of a plan to the City’s Public Works Department for the relocation of the fire hydrant during construction.
47. Public Works .
If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.
Prior to Final Inspection or Issuance of Occupancy Permit:
48. Compliance with Conditions. The project shall conform to the plans and statements in the Use Permit. The developer is responsible for providing sufficient evidence to demonstrate compliance with the requirements throughout the implementation of this Use Permit.
49. Compliance with Approved Plan. The project shall conform to the plans and statements in the Use Permit. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated December 29, 2022, except as modified by conditions of approval.
At All Times:
50. Exterior Lighting. All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare beyond the subject property.
51. Rooftop Projections. No additional rooftop or elevator equipment shall be added to exceed the approved maximum roof height without submission of an application for a Use Permit Modification, subject to Board review and approval.
52. Drainage Patterns . The applicant shall establi sh and maintain drainage patterns that do not adversely affect adjacent properties and rights -of-way. Drainage plans shall be submitted for approval of the Building & Safety Division and Public Works Department, if required.
53. Electrical Meter. Only one electrical meter fixture may be installed per dwelling unit.
54. Bird-Sa fe Glass. The use of bird-safe glass is encouraged for all windows.
55. This Use Permit, including these and all other required conditions, shall be posted in conspicuous location, available for viewing by any interested party.
705 EUCLID AVENUE- USE PERMIT #ZP2022-0104 FINDINGS & CONDITIONS April 27, 2023 Page 17 of 17
File: G:\LANDUSE\Projects by Address\Euclid\0705\ZP2022-0104\DOCUMENT FINALS\2023-04-27_ZAB_ATT1_705 Euclid_Findings and Conditions_post-hearing updates.docx
SHRUB ON SLOPE 5% (20:1) TO 50% (2:1) - MODIFIED SOIL
3/4" = 1'-0"
Shrub.
Root ball.
4" high x 8" wide round - topped soil berm
above root ball surface shall be centered
on the downhill side of the root ball for
240°. Berm shall begin at root ball
periphery.
4" layer of mulch.
No more than 1" of
mulch on top of
root ball. (See
specifications for
mulch).
Prior to mulching, lightly tamp soil around
the root ball in 6" lifts to brace shrub. Do
not over compact. When the planting hole
has been backfilled, pour water around the
root ball to settle the soil.
Original slope should
pass through the
point where the trunk
meets substrate/soil.
Modified soil.
Depth varies. (See
specifications for soil
modification).
Bottom of root ball
rests on existing or
recompacted soil.
Existing soil.
SECTION VIEW
TREE ON SLOPE 5% (20:1) TO 50% (2:1) (EXISTING SOIL MODIFIED) 1/2" = 1'-0"
Trunk caliper shall
meet ANSI Z60 current
edition for root ball size.
Round-topped soil
berm 4" high x 8" wide
above root ball surface shall
be centered on the downhill
side of the root ball for 240°.
Berm shall begin at root ball
periphery.
Original grade.
Bottom of root ball rests on
existing or recompacted soil.
SECTION VIEW
Original slope should pass
through the point where the
trunk base meets
substrate/soil.
4" layer of mulch. No more
than 1" of mulch on top of root
ball. (See specifications for
mulch).
Modified soil. Depth
varies. (See soil preparation
plan).
Root ball modified as
required.
Prior to mulching, lightly tamp
soil around the root ball in 6"
lifts to brace tree. Do not over
compact. When the planting
hole has been backfilled, pour
water around the root ball to
settle the soil.
Ln
Dv
Dv
Dv
Dv
Dv
Dv
Dv
Dv
Dv
Dv
LnLnLnLnLnLnLnLnLnLn
Pt CtCtPtCt
Pt
Ct
Pt
Ct Pt Ct Pt Ct
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm
Lm Lm Lm Lm
Ap
Li
Ln Ln Ln Ln LnCt
A
A
Ec
Ec
Ec
Ec
Ec
Ec
A
A
A
A
AMlMl
Ml
Ml
Ml
Ml
Sl
Sl
Dv
Cd Cd
CdCd
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Nf
Cd
Cd
Cd
Cd
Cd
Cd
Cd
Cd
270sf Artificial
Turf
Cd
Cd LnLnLnLn
LnLnLnLnLnLnLnLnLnLnLnLnLnLnLnLnLnLnLnLn
Ej
Ej
Ej
Nf
Nf
Nf
Nf
Ll
Ll
Ll
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Nf
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705 EUCLID AVE
BERKELEY, CA 94708
DATEBYDESCRIPTION
DATE
REVISIONS:
SCALE
1/8"=1'-0"
L1
2475 BRUSH CREEK ROAD
David Fowler Designs
landscape architecture | arboriculture | sculpture
SANTA ROSA, CA 95404
707.331.5199
[email protected]
www.davidfowlerdesigns.com
06/23/22
RLA# 6126
PLANTING PLAN
Soil and Planting Notes:
1.A minimum of 8" of non-mechanicall compacted soil shall be available for water absorption and root growth in planting areas.
2.Incorporate compost or natural fertilizer into teh soil to a minimum depth of 8" at a minimum rate of 6 cubic yards per 1000 square feet or per specific amendment recommendations from a soils laboratory report.
3.A minimum 3" layer of mulch shall be applied on all exposed soil surfaces of planting areas except in turf areas, creeping or rooting groundcovers or direct seeding applications.
06/23/22
"I have complied with the criteria of the ordinance
and applied them for the efficient use of water in
the planting design"
12/31/22
PLANTING LEGEND
SCALE
1/8"=1'-0"
APN: 63-2955-40-1
270sf Artificial
Turf
RECOMMENDED CONTROLLER AND
SENSOR LOCATION. ENSURE THAT
SENSOR IS FREE FROM ROOF
OVERHANGS AND CLEAR OF TREES
SEE DIAGRAM FOR
POC CONNECTION
-USE BELOW GROUND VALVES AND LOCATE IN AREAS
HIDDEN FROM VIEW IF POSSIBLE.
-USE RAINBIRD SMART CONTROLLER WITH RAINSENSOR
AND SEASONAL ADJUSTMENT
-ALL PLANTINGS TO USE DRIP IRRIGATION UNLESS
OTHERWISE NOTED
-LAWN TO USE SUBSURFACE DRIP IRRIGATION SUCH AS
NETAFIM TECHLINE
-BERM AROUND ALL TREES. PLACE MULTIPLE EMITTERS
AT LEAST 6-12" AWAY FROM TRUNK OF TREE. TREES TO
BE ON SEPARATE VALVE FROM LANDSCAPE PLANTS
-SEE PLANTING PLAN FOR EXACT NUMBER OF EMITTITERS
NECESSARY
-NO SPRINKLERS OR OVERHEAD SPRAY DEVICES ARE TO
BE USED ON THIS PROJECT
Irrigation Notes
Project Notes:
Total landscaped area: 1955 sf
-100% of landscaped area on drip irrigation (no spray heads) -Low and moderate water use plants on separate valves
-Trees on separate valves
-Dedicated irrigation meter not required because landscaped area is less than 5000 sf
-Certificate of completion: applicant shall submit a landscape audit report verifying installation and irrigation efficiency per design on a form provided by the East Bay Municipal Utility District
RAINBIRD SMART IRRIGATION CONTROLLER-
SEE SPECS ON THIS SHEET
NEW VALVE LOCATION. ALL IRRIGATION
VALVES FOR DRIP AND INLINE EMITTERS TO
HAVE 30 PSI PRESSURE REDUCER
C
Irrigation Legend
POINT OF CONNECTION
MAIN LINE
BACKFLOW PREVENTION DEVICE AND
MANUAL SHUTOFF LOCATION: WATTS 800M4
BRONZE FNPT PRESSURE VACUUM BREAKER.
Model #800M4-QT OR EQUIVALENT
SRECOMMENDED RAIN SENSOR LOCATION
POC
425
3 4"185
VALVE/ZONE NUMBER
FLOW RATE (GALLONS PER MINUTE)
ZONE AREA IN SQUARE FEET
VALVE SIZE
5 8" POLY IRRIGATION LINE FROM VALVE. USE (1)
RAINBIRD XB20PC 1.0 GPH XERI-BUG EMITTER
AT BASE OF EACH PLANT. MODERATE WATER
USE PLANTS TO HAVE (2) EMITTERS. TREES TO
HAVE RING OF NETAFIM IN LINE EMITTERS (12"
SPACING) 16" AWAY FROM TRUNK.
FFLUSH VALVE LOCATION
POCP
PPRESSURE REGULATOR
PRIVATE IRRIGATION SUBMETER (ONLY AS
REQUIRED FOR LANDSCAPES OVER 5000 SF)
SM
MASTER VALVEMV
FS
PRESSURE REGULATOR: WATTS LFN45B
PRESSURE REDUCING VALVE MODEL
#LFN45BM1-U 3
4 OR EQUIVALENT
IRRIGATION POINT OF CONNECTION DIAGRAM
SMMVFSF
LOW WATER USE - HYDROZONE
SHRUBS & GRASSES
Hydrozone Legend
LOW WATER USE - HYDROZONE
TREES
"I have complied with the criteria of the ordinance
and applied them for the efficient use of water in
the irrigation design"
MOD WATER USE - HYDROZONE
TREES
705 EUCLID AVE
BERKELEY, CA 94708
DATEBYDESCRIPTION
DATE
REVISIONS:
SCALE
1/8"=1'-0"
L2
2475 BRUSH CREEK ROAD
David Fowler Designs
landscape architecture | arboriculture | sculpture
SANTA ROSA, CA 95404
707.331.5199
[email protected]
www.davidfowlerdesigns.com
06/23/22
RLA# 6126
IRRIGATION PLAN
06/25/22
12/31/22
APN: 63-2955-40-1
F
F
F
F
F
F
F
F
F
F
F
F
F
POCC S
05/26/2022
Attachment 3
HARPER & ARMST
RONG, LLP
1634 Telegraph Avenue, #3 • Oakland, CA 94612
Ph: (510) 420-8455 • Fax: (510) 858-5953 • [email protected] April 15, 2023
BY E MAIL & US MAIL
City of Berkeley
Planning and Development
1947 Center St., 2nd Fl.
Berkeley, CA 94704
510-981-7410
[email protected]
Re: Withdrawal of Support for and Objection to Application for Zoning Permit No.
ZP2022-0104, 705 Euclid Avenue
To Whom It May Concern:
I write on behalf of Yoshiko Wada, owner of 696 Hilldale Avenue, Berkeley, CA 94708 to formally withdraw her approval for and issue an objection against a proposed new structure at 705 Euclid Avenue, Berkeley, CA 94708. The owners of 705 Euclid Avenue (APN 063- 295504001) have submitted an application for a zoning permit to the City of Berkeley, which currently is under review as Record No. ZP2022-0104.
Ms. Wada lives at 696 Hilldale Avenue, which is bordered to the south by an empty lot with the address 705 Euclid Avenue. In early 2022, the owners of 705 Euclid contacted Ms.
Wada seeking to obtain her approval to construct a four-story building on the empty lot. The contemplated structure would require the owners to obtain a zoning permit to exceed the allowable building height. Ms. Wada asked for the story poles to determine whether the proposed new building would block her view of the bay. The owners told her that the story poles were not ready, but they offered to meet to explain to her how tall the building would be in relation to her home.
In April 2022, Ms. Wada met with the owners of 705 Euclid. Based on their representations, Ms. Wada determined that her view would not be obscured and granted her approval to allow the project to proceed.
Thereafter, Ms. Wada was out of the country for several months. The owners of 705 Euclid Avenue filed the above-mentioned application seeking permission to construct a new dwelling exceeding 28 feet in average height and 35 feet in maximum height. They also erected the story poles for the proposed new building in late 2022 while she was away.
Attachment 4
2 When Ms. Wada returned from abroad in April 2023, she observed the story poles in place and discovered that contrary to the owners’ explanation, the new building will significantly block her view of the bay. Based on this discovery, Ms. Wada hereby withdraws her approval for the project currently under review as Record No. ZP2022-0104 and formally objects to the issuance of a zoning permit to allow the building to be constructed as currently planned.
Regards,
Kathryn Rauber
1 Jacob, Melinda
Subject: FW: Oppositionh to granting exceptions for 705 Euclid project ‐‐‐‐‐Original Message‐‐‐‐‐
From: Theodore D. Raphael <[email protected]>
Sent: Thursday, April 27, 2023 9:28 AM
To: Roe, Russell <[email protected]>
Subject: Oppositionh to granting exceptions for 705 Euclid project WARNING: This is not a City of Berkeley email. Do not click links or attachments unless you trust the sender and know the content is safe.
April 26, 2023
Russell Roe
Associate Planner/ Code Enforcement
City of Berkeley
Berkeley, California
Dear Mr. Roe:
We wish to ex
press our strongest opposition to the granting of exceptions to the rules requested by the developer of 705 Euclid.
The basis of our opposition is two‐fold: it is an unmerited exception and its realization will have direct deleterious effects on the enjoyment of our property at 694 Hilldale, separated from 705 Eucli d by only one lot, 696 Hilldale. ( Note:
694 and 696 Hilldale actually front on the east side of Euclid, adjacent to 705 Euclid, although they are accessed from Hilldale and have Hilldale addresses.)
As you know better than us, exceptions to the rules are appropriate for unusual circumstances pertaining to the idiosyncrasies of a particular lot, such as a minor variance from the setback regulations, to allow a lot to be feasibly
accommodate a residence. Such exceptions to the rules are of great benefit to the developer, with little or no impact on the lot's neighbors.
Such is not the case with 705 Euclid. The lot is a standard, sloped Berkeley Hills lot, similar to its neighbors on the east side of Euclid. In this case, the developer simply wishes to build an outsized hou se not permitted by the rules. There is
nothing prev
enting the developer from building a house that conforms with current rules. There is no compelling reason to grant an exception to the rules in this case. The planned house is out of character for the neighborhood, due to its height and volume, in violation
of the very reason the rules were established to safeguard the character of the neighborhood. The request for an exception to the rules should be denied on this basis alone.
However, building of the planned house will have a severe effect on the light, privacy, and views at 696 Hilldale, and, to a lesser extent, at our hom
e at 694.
We spent five whole years searching for a retirement home in Berkeley, from 2009 to 2014 (this can be confirmed by our agents Nancy Mueller and Terri White of Berkeley Hills Realty). We wanted view privacy from adjacent hom es, which is not achieved easily. We were not concerned about what might be built on the unimproved lot at 705 Euclid, as we knew that the rules would not permit the building of a house that would compromise our privacy and views.
SUPPLEMENTAL COMMUNICATIONS, PART 2, ITEM 6
ZAB 04-27-2023
2 An exception granted to the 705 Euclid project would greatly compromise our privacy, as the uppermost deck at 705 would allow views directly onto the entire length of the west‐facing deck of our house, completely destroying our privacy. The purchase of our property was premised entirely on the reasonable expectation that the rules would continue to be enforce
d in the neighborhood. We are in our late 70s and expected the purchase of our last home to afford us the privacy we sought to enjoy during the remaining years of our lives.
The loss of privacy will undoubtedly reduce the value of our property, as well. Tod ay we have valuable, complete privacy from our neighbors, due to the siting of the properties. If an exception to the rules is granted, we will lose our coveted privacy and substantially lower the value of our property.
There is no reason that a house at 705 cannot conform to the rules to which the builders of surrounding lots observed.
We will suffer if the exception is granted. We will not suffer, nor will th e developer of 705 Euclid, if the exception is
denied.
For the benefit of sound public policy and the unnecessary loss of privacy we will suffer, we urge you to deny the requeste
d exception to the rules for the 705 Euclid project.
Sincerely,
Theodore D. Raphael
Mary E, Raphael
694 Hilldale Ave.
510‐684‐1912
SUPPLEMENTAL COMMUNICATIONS, PART 2, ITEM 6
ZAB 04-27-2023
HARPER & ARMSTRONG, LLP
1634 Telegraph Avenue, #3 • Oakland, CA 94612
Ph: (510) 420-8455 • Fax: (510) 858-5953 • [email protected] Via Email
July 5, 202
3 City Council
c/o City Clerk
2180 Milvia Street, 1st floor
Berkeley, CA 94704
(510) 981-6900
[email protected]
Re: ERRATA to Appeal from approval of AUP for 705 Euclid Avenue (ZP2022-0104)
Notice of Decision dated April 27, 2023, and mailed May 9, 2023 Dear Members of City Council:
I write to correct the factual record of this appeal. In my May 23, 2023, letter appealing the City Council’s decision, I mistakenly asserted that Theodore Raphael initially approached the ZAB in person during the meeting of April 27, 2023. In fact, he attended the entire meeting virtually by zoom.
Theodore Raphael attended the entire meeting online; he raised his “Zoom hand” to speak on the approval of AUP for 705 Eulid, was recognized by the chair, requested to speak, and the chair then placed him in the queue for public speakers to be recognized later in the hearing. The ZAB then never afforded him the opportunity to be heard.
Regards,
Shona Armstrong
cc:City of Berkeley
Zoning Adjustments Board & Russel Roe, Assoc. Planner
1974 Center St., 2nd Floor
Berkeley, CA 94704
[email protected]
Theodore and Molly Raphael
[email protected]
[email protected]
Yoshiko Wada
Yoshiko@yos
hikowada.com
Attachment 5
From: Shona Armstrong
To: Heather Sanders-Jacob
Cc: Roe, Russell
Subject: Re: ZP2022-0104 (705 Euclid) - ZAB appeals process? Date: Friday, April 28, 2023 5:45:25 PM
WARNING: This is not a City of Berkeley email. Do not click links or attachments unless you trust the sender and know the content is safe.
The ZAB absolutely denied Ted Raphael the opportunity to speak. Mr. Raphael originally went to the podium when the item was on the consent calendar and the ZAB staff instructed him to wait, because he would have an opportunity to speak when the item was called for public hearing. When the item was eventually called at public hearing, however, despite the fact that the ZAB staff acknowledged Mr. Raphael as one of the speakers in line with his hand raised to speak, the ZAB denied him the opportunity by never calling on him or unmuting him.
The ZAB is ignoring the significant impact this project, which exceeds permissible height restrictions, will have on neighbors who are concerned about both views and privacy. It is an ideal candidate for negotiation and compromise, but ZAB did not care to hear about the impact on the neighbors.
As a result, the ZAB's process has denied the
neighbors due process and has denied the neighborhood the time necessary for concerned parties to reach a negotiated and mutually acceptable compromise.
ZAB's process is not just leading to poor results. It is denying constitutional rights.
On Fri, Apr 28, 2023 at 5:18 PM <[email protected]> wrote:
Good afternoon, Russel –
I’m part of the group that spoke in opposition to the project proposed at 705 Euclid last night. We understand that there’s an appeals process that might be open to us and time is probably very limited. Is there a letter that will be issued to the neighbors informing them of the process and timeline? Please advise.
Also, some of the neighbors are upset that the time was so short to speak; that board members had departed mid-meeting; that the meeting went so late (also, one couple stayed up till nearly midnight and were never called on, even though they hand their virtual “hand” up).
While we all understand that the admirable goal was to get through the agenda, the result was a sense of being rushed, compromised due process, and sloppiness on behalf of the ZAB.
The ship has left port, but is there a good place to provide feedback so that the ZAB knows how good intent is potentially leading to poor results?
Many thanks,
Heather Sanders-Jacob
AIA, LEED AP
SHELTERWERK
1904 Franklin Street, Suite 310
Oakland, CA 94612
T: 510.595.3836 ext 1
www.shelterwerk.com
--
Shona Armstrong, Esq.
Harper & Armstrong, LLP
1634 Telegraph Ave., #3
Oakland, CA 94612
(w) (510) 420-8455
(c) (510) 508-5017
From: [email protected]
To: Roe, Russell
Cc: "Shona Armstrong"; Garcia, Claudia
Subject: RE: ZP2022-0104 (705 Euclid) - ZAB appeals process? Date: Monday, May 01, 2023 9:19:12 AM
Thank you, Russell, for the info on both items. The homeowner at 696 Hilldale is currently residing in England, and Ms. Armstrong and I are representing her while she’s away. Could I please have an email copy of the letter that will be going out to her?
Thank you,
Heather Sanders-Jacob
AIA, LEED AP
SHELTERWERK
1904 Franklin Street, Suite 310
Oakland, CA 94612
T: 510.595.3836 ext 1
www.shelterwerk.com
From: Roe, Russell <[email protected]>
Sent: Monday, May 1, 2023 8:47 AM
To: [email protected]
Cc: 'Shona Armstrong' <[email protected]>; Garcia, Claudia <[email protected]>
Subject: RE: ZP2022-0104 (705 Euclid) - ZAB appeals process?
Heather,
Appeals must be filed with the City Clerk within 14 days of the date on the Notice of Decision letter.
I’m not sure exactly when that letter will be mailed out, but I expect that it will be very soon. For more information on the appeals process, check here: https://berkeleyca.gov/construction- development/permits-design-parameters/permit-process/filing-appeal-zoning-or-land-use
As for the late night and limited speaking time at the meeting, those decisions are made by the Board members. You can provide them with feedback by emailing [email protected] or writing to:
Zoning Adjustments Board, Planning & Development Department, 1947 Center Street, 2nd Floor, Berkeley CA 94704. All communications sent to these addresses will be forwarded to the Board members.
Russell Roe
Associate Planner/ Code Enforcement
City of Berkeley
(510) 981-7548
From: [email protected] <[email protected]> Sent: Friday, April 28, 2023 5:19 PM
To: Roe, Russell <[email protected]>
Cc: 'Shona Armstrong' <[email protected]> Subject: ZP2022-0104 (705 Euclid) - ZAB appeals process?
WARNING: This is not a City of Berkeley email. Do not click links or attachments unless you trust the sender and know the content is safe.
Good afternoon, Russel –
I’m part of the group that spoke in opposition to the project proposed at 705 Euclid last night. We understand that there’s an appeals process that might be open to us and time is probably very limited. Is there a letter that will be issued to the neighbors informing them of the process and timeline? Please advise.
Also, some of the neighbors are upset that the time was so short to speak; that board members had departed mid-meeting; that the meeting went so late (also, one couple stayed up till nearly midnight and were never called on, even though they hand their virtual “hand” up).
While we all understand
that the admirable goal was to get through the agenda, the result was a sense of being rushed, compromised due process, and sloppiness on behalf of the ZAB.
The ship has left port, but is there a
good place to provide feedback so that the ZAB knows how good intent is potentially leading to poor results?
Many thanks,
Heather Sanders-Jacob
AIA, LEED AP
SHELTERWERK
1904 Franklin Street, Suite 310
Oakland, CA 94612
T: 510.595.3836 ext 1
www.shelterwerk.com
From: Jacob, Melinda
To: Roe, Russell
Subject: 705 Euclid
Date: Wednesday, June 07, 2023 12:36:45 PM
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Good Wednesday afternoon to the zoning board and I'm calling regarding the property at 705 Euclid. We've touched on the concerns of the glare and heat reflection on downhill neighbors and community, including drivers on Euclid and also wanted to bring up the consideration of reflected and amplified sound on downhill neighbors. So the design for that particular lot could have some really beautiful graceful complimentary aesthetic appeal that blended with the surrounding architecture and it was you know really. Generous Remarks to Berkeley as consideration for beautiful Architecture. One of the things that's known for however, the ridiculous glass design. Is going to make a Canyon of of noise and he and glare and amplification of barking dogs, which already that is something that's happening and that region Echo and barking reflected noise. So we'll just keep up the the considerations and remind ourselves of proverbs 12 to which is that the Lord condemns Craft him and so this this plan seems to be being pushed through by something other than the community appeal and certainly not buy any kind of respectful dialog. So hoping to make some transformations and consciousness. Thank you.
Melinda Jacob
Office Specialist II
Planning and Development, Land Use Division
1947 Center St., 2nd Floor, Berkeley, CA 94704
Phone: (510) 981-7421
Website: www.berkeleyca.gov
Email: [email protected]
REDUCED LAND USE HOURS ARE IN EFFECT! Land Use / Zoning counter services are available at the Permit Service Center (PSC) between 8:30 am – 1:30 pm (final check in at 1:00 pm) Monday through Thursday. To limit the spread of COVID-19, face masks and social distancing are required when visiting our offices, and some Planning staff continue to work remotely.
Construction & Development | City of Berkeley (berkeleyca.gov) https://berkeleyca.gov/construction-development/permits-design-parameters/permit- process/permit-service-center
Zoning Lookup | City of Berkeley (berkeleyca.gov)
From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Mon, Jun 05 9:16 AM for (510) 981-7410 , 705 Euclid inquiry Date: Monday, June 05, 2023 9:43:14 AM
Attachments: 570227.wav
Internal
From: [email protected] <[email protected]> Sent: Monday, June 05, 2023 9:20 AM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Mon, Jun 05 9:16 AM for (510) 981-7410
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You received a phone call from UNKNOWN on Mon, Jun 05 9:16 AM for (510) 981-7410.
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Message
Good morning zoning board calling regarding the property at 705 Euclid. I had attended the public meeting public hearing about the plans and understand that there were several people who were in opposition to the plans. I was lead to believe in my ignorance of how local politics work. I was lead to believe by some comments made by mister daffy that there would be an opportunity for the neighbors of the project to hear the architect and the owners of the property who I I assume are intending to live there to hear them defend the project and possibly to allow the neighbors to articulate their particular concerns and then I understand that the project was approved without such meeting. I am a neighbor who will be directly affected four and the property here will be directly affected by the imposition of this building and I have many concerns which are completely valid, including heat and
glare reflected down on the lower area, including wind management deflects and all of that and any extra height. I have a copy of the plans and they do not include solar panels and if there's any extra. Hi, just gonna block the view my view of my favorite Bridge. So these people I would hope that they would be concerned about the fact that they're having on their neighbors, which and my personal meetings with both Mr. Is Corey? I have not found them to be particularly considerate of that there are arriving as new comers to a neighborhood that is established by people who love being here. So I would think they would care how we feel. So we'll be looking forward to September blessings.
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From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Thu, Jun 08 11:05 AM for (510) 981-7410, 705 Euclid anonymous ZAB comment Date: Friday, June 09, 2023 1:20:09 PM
Attachments: 574601.wav
Internal
From: [email protected] <[email protected]> Sent: Thursday, June 8, 2023 11:09 AM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Thu, Jun 08 11:05 AM for (510) 981-7410
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Message
Good morning, zoning board Thursday morning and I'm calling regarding the property at 705 Euclid. Today's concern expressed is that perhaps the architect. I believe John Newton is his name didn't spend a significant amount of time up here understanding the fog belt and the wind and other elements that really a block square rectangular hard scape structure is really unsafe suitable to the Micro climate up here. I have a lot of concern about reflected wind editing wind the dust and other other things resulting blowing on Hawk and walk the path there and also across the face of other neighbors buildings and who knows I don't know these people are engineers both the father and the son our engineers is my understanding the owners of the property and you know, I know wind of the thing for engineers to understand when they're doing buildings, you know, how it might
with all, you know, all kinds of things can result from that, but certainly a more graceful natural harmonious design with some different, you know maybe not so looming, but also with the other mitigating factors like a green roof or other plantings or other you know anybody doing livestock hair, you know that you don't build a solid wall to create a window barrier for your animals, that's not how it works that makes all kinds of other disastrous, you know down when the facts of of of being blasted by wind also how are they going to keep their windows clean is not going to be an issue then of the whole building has to be washed on a regular basis that doesn't seem very environmentally. Suitable not very forward thinking and then again, I just want to prompt a reminder, they have a dry brush pile that the fire department might be concerned about and there's trespassing on adjacent properties, because they have chairs set up that the public is using there. So just a little problem to remind that so that's a lot of many concerns and there will be more voice in the future. Thank you.
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From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Thu, Jun 15 3:49 PM for (510) 981-7410, another anonymous 705 Euclid communication Date: Friday, June 16, 2023 2:49:14 PM
Attachments: 581577.wav
Internal
From: [email protected] <[email protected]> Sent: Thursday, June 15, 2023 3:55 PM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Thu, Jun 15 3:49 PM for (510) 981-7410
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You received a phone call from UNKNOWN on Thu, Jun 15 3:49 PM for (510) 981-7410.
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Message
Good Thursday afternoon zoning board message regarding 705 Euclid. I understand of course that it's not up to you to determine the Sterling characters of the people who you know our neighbors to each other in the city, but I do want to communicate again. That there has been significant trespass onto my property because of chairs set up on that empty lot by the quarries Michelle Cory. The dad indicated that he had every intention to leave those chairs there as long as people wanted to use them. They have contributed to degradation. Frankly of my lift experience here because all the years decades that that lot has been vacant. Nobody has trust passed across there with the consistency that has happened making an actual Trail onto the back part of my property here and it. Frankly reflects quite adequately the energy that those two men Michelle and his son torque have
brought to my home and my life with this you know coming around to get signed off on plans and I when I met Target Corey to discuss the plans I indicated to him three times.
This is stranger to me and I ended welcomed him. I told her I want to I told him I want you to know you're welcome here and and I said I'm also I am not a neighbor to drop by do not come by my house three times and different ways. I said to him do not come by my house unless it's an emergency that you cannot get handled some other way or that that is going to impact me. I am not a drop by neighbor and multiple times he and his dad have endeavored to push their way onto this property here where I live and I it is so reflective of the energy that they are bringing this violent building this giant oversized monstrosity, you know, and frankly the trespassing has got to stop or there's going to be some other kind of a consequence for them. So if they need to put a fence up then they need to put a fence up, but it's got to stop that people strangers or then whoever is coming across this property and they need to clear up that pile of dry sticks that is a fire hazard that I've had to do testing on my property in order to meet the code for the fire department and yet there is this huge pile of dry sticks out there on their lot. So, I don't know who I need to talk to to get something done here. But this is nonsense and whatever criminal activity of thousands of dollars. It might take to get your plans passed in a place like this but this is all so much violation of City codes that are here to protect the privacy and the space of these you know and you can go ahead and think that we're all whiners up here and spoiled and whatever else, but the fact is there codes that protect the privacy. The light the air and the size of residence is in this area. So I would like some human man or woman to stand up for what's true and right and put these people in line, frankly, it would be better in la this design is a nice la Canyon thing or maybe overload by the Claremont, but it is not in North Berkeley design and I'm born and bred right here. So you know you're going to hear about it and there needs to be some change and there needs to be some response to what I'm communicating about what's happening right now because of that property and the people who have taken it over blessings have blessed weekend. I hope you all get outside and enjoy some Sunshine and leave your phones at home and you know get away from screens and stuff. So that you can get back to Sandy instead of worrying about money as the primary focus blessings.
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From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Tue, Jun 06 8:13 AM for (510) 981-7410, 705 Euclid anonymous comment Date: Tuesday, June 06, 2023 11:31:49 AM
Attachments: 571651.wav
Internal
From: [email protected] <[email protected]> Sent: Tuesday, June 06, 2023 8:17 AM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Tue, Jun 06 8:13 AM for (510) 981-7410
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Message
Good morning zoning board. This message is regarding 705 Euclid. I have a question for pondering, which is if it's called a public hearing but you don't hear the public and then you make a decision allegedly based on the hearing and if she's brought up at the hearing that is in conflict with the people who wish to Express themselves. I'm confused about how that's a public hearing it seems like maybe it's miss measuring from the outset from the very first step, it's dishonest. I understand you got a lot of projects and all of that. But then the other is a request there have been a lot of trespassers and encourages on my property here, which is adjacent there is a path well worn from chairs that the quarries have set up that the public uses coming off of Hall can walk and I'm wondering if it could be since there are several months now before or anything changes going to occur could that whole can
walk be fenced off, so that those chairs are not accessible to the public and there's you know there's a concern for her injury certainly somebody falling down that steep slope. If they were drunk or something and then also I've had personal item disappear from well onto my Garden. And lastly, there is a brush fire pile that could certainly be caught on fire since I know that that is a great concern for the city. So I just am wondering if that could be fenced off to prevent further problems with this project and to the neighborhood relations.
Thank you so much.
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From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Tue, Jun 13 8:39 AM for (510) 981-7410, another anonymous comment on 705 Euclid, ZP2022-0104
Date: Tuesday, June 13, 2023 1:52:23 PM
Attachments: 578226.wav
Internal
From: [email protected] <[email protected]> Sent: Tuesday, June 13, 2023 8:43 AM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Tue, Jun 13 8:39 AM for (510) 981-7410
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Message
Good morning zoning board calling regarding the property at 705 Euclid good Tuesday morning calling to me that maybe outside the purview of zoning, but of the residential design, I want to refer you all to the sleep studies of Matthew Walker. I believe he's at U C S F and the natural biological needs. The organising on the human organism for healthy sleep, which is an epidemic of of poor quality sleep and the result and inefficiency and disease and accidents and things that happened because of bad sleep, we need darkness and we need coolness in order to sleep well and the building design with the front facing bedrooms, you know, I realize that this is you know, it's an ego project. It is not designed with the comfort of the residence or compliment to the neighbourhood or consideration even for the neighborhood. It's just a really a brutal assault of a design of a glass box that's
a masculine ego problem. This could be a beautiful tree house design it could have a Cliff dweller kind of a flavor to it. I could have you know, there's no consideration for the habitat that's being lost in terms of planting around because the orientation is poor the patio off the kitchen with with the North sort of a northern face exposure onto a public pathway and onto the looming over Lords in the in the house above, you know looking down out of their windows into their private space. It's all very poorly design that will gather dust and create what Eddie's it's in Chateau for the time of the year, when you might want the most son in the winter. It's a very bad design. It's it is absolutely and assault to this neighborhood onto berkeley's reputation for Ecology and visionary of activism and and you know graceful Architecture. It's really an insult and it's also too much square footage, you know, I think I guess it's just the money thing for for the city at this point and you know, that's that's a it's a shame if this project proceeds as it is it's a it's a it's a shame and a scar and a blight on all future projects in the city for a residence. It's a it's a very bad precedent to set here blessings have great day.
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From: Sanford, David
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Wed, Jun 14 9:18 AM for (510) 981-7410, another anonymous 705 Euclid comment Date: Thursday, June 15, 2023 10:50:07 AM
Attachments: 579550.wav
Internal
From: [email protected] <[email protected]> Sent: Wednesday, June 14, 2023 9:22 AM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at
Wed, Jun 14 9:18 AM for (510) 981-7410
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You received a phone call from UNKNOWN on Wed, Jun 14 9:18 AM for (510) 981-7410.
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Message
Good morning zoning board. This message is regarding 705 Euclid and the plans there on I am concerned about a efficiency of solar panels up here on the fog belt and whether they will be able to power the requirements for this household which is by my brief conversations the implication is that there's a lot of electronic window things and blinds and different things happening along with an elevator have the plans here. I'm concerned about you know what they are actually creating is being created out of the ignorance of this Micro climate up here. I understand solar panels have only about an 80% efficiency rate when they are overcast to which it often is up here when it's sunny where these people live presently in Albany so they may be a little bit deceived about conditions in this place and I know they haven't spent time here, but have instead referred to apps on their phones to
understand how the sun tracks over their property. It's just insane to me, maybe they don't intend to live there. That might be another thing that they are just doing a spec health collaborative spec house, which is too bad cause it's and assault on the neighborhood is have communicated and along with that this concern about solar panels, which are not included on the plans. I am concerned that if there's any more height added especially to that little peek over the elevator. It's gonna block my view of the Richmond San Rochelle Bridge, which is my favorite Bridge and that would be absolutely intolerable to me and I don't want glare off solar panels. Either. So anyway that this property being undeveloped needs extreme consideration for Amelia ration, not just mitigation but but actually improving the habitat that it's taking so it could be pollinate or habitat on the Green roof, you know all kinds of great design ideas, but it's my understanding that these people are really just pushing this terrible terrible ugly block build through and they're trying to do that somehow with somebody is approval up there and you know, it's really insensitive so I'm not really looking forward of these people as neighbors because of how they are behaving presently. So I hope that there will be some new consideration offered and we'll look forward to September have great days.
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From: Mariscal, Cecelia
To: Roe, Russell
Subject: FW: Call From UNKNOWN at Wed, May 31 5:32 PM for (510) 981-7410, 4705 Euclid Proposed Plan Opposition Statement
Date: Friday, June 02, 2023 3:16:55 PM
Attachments: 566812.wav
Internal
From: Sanford, David
Sent: Thursday, June 1, 2023 8:47 AM
To: ZoningCounter <[email protected]>
Subject: FW: Call From UNKNOWN at
Wed, May 31 5:32 PM for (510) 981-7410, 4705 Euclid Proposed Plan Opposition Statement
Forwarded to Rusell Roe on 6/2 at 3:15pm.
Internal
From: [email protected] <[email protected]> Sent: Wednesday, May 31, 2023 5:37 PM
To: Sanford, David <[email protected]>
Subject: Call From UNKNOWN at Wed, May 31 5:32 PM for (510) 981-7410
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Message
Yeah, this message is for the zoning board regarding the proposed plans 4705 Euclid. I stood in opposition to the plans and have made an extensive list mister daffy gave a nod and said to me to come back and and tell he only allowed me to say two things before he cut me off and is my understanding that there are several people there who were posing the project. I am concerned that there is some kind of a of you know behind the scenes deal making going on here because the neighbors around here are opposed to the project as it stands and it is kind of an assault on the environment on the landscape. It's Stark a texture as I call it and it really doesn't have a place here if it gets any taller, I know that the plans I have a copy of the plans and I know that they don't include the solar panel height and if it goes any higher than it is right now. It's going to be blocking my view of my favorite Bridge, which is the Richmond San Rochelle Bridge and I know views are thing here and in the Berkley Hills and I both separately at this point now since I've been waiting and waiting to attend another meeting where these people would defend their plans. I wrote them a letter I left three voice mails prior for the zoning board on specific at the time they were I could selected whoever but I don't know who received the message and then I attended that meeting in opposition and it was a first time in my life that I felt pat empowered to create change and the City of Berkeley. It seems like it might be sliding into average suburbia sleeping community. This you know, it's really an assault on the environment and on the neighborhood and I'm opposed to it. I'm at 706 Hill Dale and I'm joining the appeal both differently I will be joining the appeal opposing this development because it's an assault on the landscape and a visual assault to the neighbourhood heat glare wind vectors and conditions that's going to make a wind tunnel. It's poorly designed for the comfort of occupants, which should be the architects primary concern. It never mind being an agreed with a fence to the aesthetic of anybody who cares about nature. So that's my for the moment feedback and you know again, it's really disappointing to have attended that meeting deliberately and in person and two again have felt empowered to have an effect on an influence on on this and then to know that it's been just been sneaked through so that's gonna result in equal an opposite reaction. If you will Newton, third law motion blessings cancel this plan. It's really a disaster and it's in violation of the city code itself.
Five stories is violation of the three story limit blessings.
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Administrative Record
This attachment 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 94704
(510) 981-6900
or from:
The City of Berkeley’s Website
http://www.berkeleyca.gov
Attachments 6-7
Attachment 8
NOTICE OF PUBLIC HEARING-BERKELEY CITY COUNCIL
SCHOOL DISTRICT BOARD ROOM, 1231 ADDISON STREET
ZAB APPEAL: 705 EUCLID AVENUE, USE PERMIT #ZP2022-0104
The public may participate in this hearing by remote video or in-person.
Notice is hereby given by the City Council of the City of Berkeley that on SEPTEMBER 26, 2023 at 6:00 PM a public hearing will be conducted to consider an appeal of a decision by the Zoning Adjustments Board to approve Use Permit #ZP2022-0104, to construct a new three- story (41 feet and 11 inches), 4,528 square foot single family dwelling with two parking spaces and associated retaining walls located in the setbacks, on a 6,024 square foot vacant lot A copy of the agenda material for this hearing will be available on the City’s website at www.CityofBerkeley.info as of September 18, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.
For further information, please contact Russell Roe, Project Planner, (510) 981-7548 or [email protected]. Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e- mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.
__________________________________
Mark Numainville, CMC, City Clerk
Mailed: September 12, 2023
NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to approve or deny (Code Civ. Proc. 1094.6(b)) or approve (Gov. Code 65009(c)(5) an appeal, the following requirements and restrictions apply: 1) Pursuant to Code of Civil Procedure Section 1094.6, no lawsuit challenging a City decision to deny or approve a Zoning Adjustments Board decision may be filed more than 90 days after the City Council action. Any lawsuit not filed within that 90-day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a Zoning Adjustments Board decision, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project.
If you challenge the above in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Berkley at, or prior to, the public hearing. Background information concerning this proposal will be available at the City Clerk Department and posted on the City of Berkeley webpage prior to the public hearing.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
September 26, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning & Development Department Subject: ZAB Appeal: 1598 University Avenue, Use Permit #ZP2022-0099
RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the decision of the Zoning Adjustments Board to approve Use Permit ZP#2022-0099, to demolish a non-residential structure and construct a 127,492 square foot, eight-story (89 feet-2 inches) mixed-use residential building containing 207 dwelling units (21 Very Low- Income) and a 5,943 square foot commercial space, with 39 automobile parking spaces and 92 bicycle parking spaces, utilizing State Density Bonus Law, subject to revised conditions of approval.
FISCAL IMPACTS OF RECOMMENDATION
None.
CURRENT SITUATION AND ITS EFFECTS
On January 26, 2022, Trachtenberg Architects (the Applicant) submitted a complete Senate Bill (SB) 330 preliminary housing development project application and was directed to submit a Use Permit Application, vesting the project to the zoning, design, subdivision and fee requirements in effect as of that date.
On July 7, 2022, the Applicant submitted an SB 330 application for a Use Permit (ZP2022-0099) to demolish a non-residential structure and develop a mixed-use residential building utilizing State Density Bonus.
On January 23, 2023, after three rounds of comments from staff, the application was deemed complete.
On May 5, 2023, the Applicant submitted a revised, complete SB 330 preliminary housing development project application that superseded the previous application, vesting the project to the zoning, design, subdivision and fee requirements in effect as of that date.
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
On May 11, 2023, staff provided the Zoning Adjustments Board (ZAB) a supplemental memorandum that included changes to the conditions of approval related to Affordable Housing Provisions and Street Trees (Attachment 4).
On May 11, 2023, the ZAB conducted a public hearing for the use permit application.
After hearing public comments and holding discussion, the ZAB approved the use permit with revised and added conditions of approval by a vote of 9-0-0-0-0 (Duffy, Gaffney, Kahn, Lunaparra, O’Keefe, Sanderson, Thompson, Tregub, Yung).
On May 18, 2023, a Notice of Decision of ZAB’s approval was issued, which established a 14-day appeal period (Attachment 3).
On June 1, 2023, Elizabeth Kowal, a neighbor at 1523 Addison Street, filed an appeal of the ZAB’s decision with the City Clerk to City Council.
On September 12, 2023, staff posted the public hearing notices near the site and mailed notices to property owners and occupants within 300 feet of the project site and to all registered neighborhood groups that cover this area. This public hearing is required to resolve the appeal.
BACKGROUND
The project site is located within the University Avenue Specific Plan (UASP)1 area in a local-serving avenue node with existing neighborhood services. The project site is located at the corner of University Avenue and California Street, two blocks south of Ohlone Park. The project site is located at an intersection that is composed of one to three story mixed-use and commercial buildings and associated surface parking.
Compared to both the eastern and western ends of the UASP area, the site is located within an underdeveloped section of the plan area. The rear of the site abuts the Restricted Two-Family Residential District (R-2) which is characterized by single-family, two-family, and multifamily residential buildings. The site project site is proximate to several bus lines and is within half a mile of the North Berkeley Bart Station.
The project site spans three rectangular, contiguous lots. The 28,936 square foot site maintains about 180 feet of frontage along University Avenue and about 138 feet of frontage along California Street. The western portion of the site area is partially developed with a Chinese language school and the eastern portion of the lot with a restaurant. The majority of the site is dedicated to off-street surface parking. The site is accessed along University Avenue at three separate curb cuts and at one curb cut along California Street. The following entitlements were previously obtained for the site:
1951 (UP #767) – To operate a service station
1991 (ZP #A1047) – To operate a restaurant
1 University Avenue Specific Plan (1996), https://berkeleyca.gov/sites/default/files/2022-03/University- Ave-Plan_Cover_Summary.pdf
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
1996 (UP #A2434) – To allow beer and wine service at the existing restaurant The proposed project is a Density Bonus Project and would demolish the existing commercial buildings and construct a new eight-story residential building with 207 dwelling units and 5,943 square feet of commercial space.
The project is eligible for a density bonus under Government Code Section 65915, by including 21 Very Low-Income units (15 percent of the 138-unit base project), and qualifies for a 50 percent density bonus, or 69 units, resulting in a 207-unit density bonus project, with a concession to reduce useable open space, and waivers to reduce the ground floor commercial use area, minimum ground floor area for a commercial use, the rear setback, both side setbacks, and to increase the building height, number of stories, and the floor area ratio.
At the hearing on May 11, the ZAB discussed the proposed development and found the project to be compliant with all vested and applicable, objective general plan and zoning standards, without specific adverse impact on public health or safety, and approved it with conditions without reductions to the project’s density, pursuant to the State Housing Accountability Act (HAA), Government Code Section 65589.5(j).2 The conditions added by the ZAB took into consideration comments from the public, ensuring additional engagement between the applicant and neighborhood members and a modification of the plans to more accurately depict elevations, prior to the issuance of a building permit.
For additional project background, please see the supplemental memo to ZAB and the ZAB staff report for this project, Attachments 4 5, respectively,.
Staff recommends two revisions to the conditions of approval (COA). (Attachment 1, Exhibit A) The first is to include COA 27 – Toxics, in addition to the standard conditions related to toxics management (COA 28). Although the conditions of approval currently require coordination with the Toxics Management Division to submit a Soil and Groundwater Management Plan and a hazardous building materials survey, the new COA 27 requires clearance by an external agency (e.g., Department of Toxic Substances Control, Regional Water Quality Control Board, or Alameda County Local Oversight Program) to ensure that vapor does not require additional mitigation. The added condition of approval is consistent with the comments provided to the applicant in a letter issued by staff on October 20, 2022 (Attachment 6). 2 The Housing Accountability Act (HAA), Government Code Section 65589.5(j), requires that when a proposed housing development complies with the applicable, objective general plan and zoning standards, but a local agency proposes to deny the project or approve it only if the density is reduced, the agency must base its decision on written findings supported by substantial evidence that the development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density.
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
The second revision corrects an error in the Findings and Conditions that were attached to the May 18, 2023 NOD. Because the project vested to the zoning, design, subdivision and fee requirements in effect on May 5, 2023, the project is subject to the affordable housing provisions that took effect April 1, 2023. In addition to new provisions related to affordable housing, the adopting ordinance also repealed the Affordable Housing Mitigation Fee. Conditions of Approval 31 and 65 were removed by ZAB and replaced the applicable condition (COA 41). The Affordable Housing Mitigation Fee COA 31 and COA 65 were erroneously left in on the NOD, which is corrected in the revised conditions (Exhibit A to the Resolution).
RATIONALE FOR RECOMMENDATION
The neighbors filed an appeal of the ZAB’s decision during the 14-day appeal period.
The issues raised in the appellant’s letter and staff’s responses follow. For the sake of brevity, the appeal issues are not re-stated in their entirety; refer to the appeal letter (Attachment 2) for full text. The issues raised do not discuss specific components of the project, but take issue with City processes.
Issue 1: Meeting was not scheduled between the applicant and neighbors prior to the ZAB hearing
The appellant asserts that staff failed to coordinate a meeting between the applicant and neighbors near the project prior to the ZAB hearing, as required by the Design Review Committee.
Response 1: Per the Zoning Project Application Submittal Requirements 3, for projects of community or neighborhood interest (i.e., Density Bonus projects, a project in a non-residential district three or more stories, etc.) pre- application neighborhood outreach is required prior to the submittal of use permit application. The project applicant satisfied this requirement by holding a community meeting about the project on March 30, 2022, prior to submittal of the use permit application. Apart from the pre- application meeting, although additional meetings may be recommended, the applicant is not required to have an additional neighborhood meeting prior to the ZAB hearing. The ZAB did add a condition requiring the applicant to organize a neighbor-applicant meeting to “discuss additional project considerations” prior to the submittal of a building permit (COA 16).
Issue 2: Concerns were not addressed by ZAB
The appellant asserts that neighborhood concerns and objections that were shared were not addressed by ZAB.
3 Zoning Project Application Submittal Requirements describes all the materials required to submit a complete Zoning Project Application to the Planning and Development Department, Land Use Division.
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
Response 2: As stated in the Berkeley Commissioners’ Manual 4, public hearings are subject to minimum standards of receiving testimony. The general public have the option to attend commission meetings or may also send written correspondence via mail or email to be included in the commission agenda packet, in accordance with publication deadlines. During a hearing, commissioners may briefly respond to comments made during the public comment period or to communications received prior to the meeting during their discussion and deliberations on the project.
At the hearing on May 11, 2023, the ZAB discussed the proposed development after receiving written comments, presentations and public testimony. The majority of the communications expressed concerns about the scale of the project and potential impacts to sunlight, traffic, and parking. Modifying the project to fully address concerns or without incorporating the approved waivers and concessions would result in the reduction of project density. For instance, according to the applicant, compliance with the FAR, stories, and height requirements of the underlying district would reduce the project by 42,536 square feet.
Because the proposed housing development is consistent with the HAA – meaning it complies with all applicable, objective general plan and zoning standards – the City can only deny the project or approve a lower density project based on the following findings:
1. The development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and
2. There is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density.
Although the ZAB was unable to make the above described findings, they approved the project with additional conditions to revise the floor plans to reflect the step back illustrated in the renderings and that the applicant meet with the neighbors to discuss additional project considerations.
Issue 3: Inadequate information about the project
The appellant asserts that the development plans and staff did not provide adequate or accurate information about the density and affordability of the project to the ZAB and general public.
Response 3: The applicant submitted plans and materials that adequately met the City’s submittal requirements for permit applications. Land use planning 4 Berkeley Commissioners Manual https://berkeleyca.gov/sites/default/files/2022-03/Commissioners-Manual.pdf
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
submittal requirements include: site plans, floor plans, sections, and elevations that are drawn to scale by a licensed architect, street elevations, and photo simulations from at least four angles. Additionally, projects that create five or more new dwellings and utilize State Density Bonus Law (SDBL) must also provide a housing affordability statement, density bonus eligibility statement, and transparent density bonus calculations that show consistency with SDBL. Staff reviewed these materials and determined that they were consistent with SDBL and the affordable housing requirements. Additional information on how SDBL is applied in Berkeley can be found in the Implementation of State Density Bonus guidelines, available to the public online.
There is no applicable dwelling units per acre or density standard specific to the University Commercial District (C-U). As such, the base project density is determined by configuring the largest project allowed on the site that is fully compliant with district development standards, including any use and administrative use permits.5 Section 3b (“Project Description: Base Project and Density Bonus Project”) of the May 11 staff report describes the City’s density bonus procedures and how the base project determines the proposed development, or the density bonus project. The percent of affordable units is calculated from the base project density, not the proposed density bonus project. The base project density is 138 units. By providing 21 Very-Low Income (VLI) below-market rate units on site (15 percent of the 138- unit base density), the project is eligible for a 50 percent density bonus or 69 units, per SDBL. The applicant proposes 69 additional units above the base density for a total of 207 dwelling units. The project is consistent with SDBL.
Under the inclusionary housing provisions that went into effect on April 1, 2023 (BMC 23.328), there are multiple options for meeting affordable housing requirements, including: construct 20 percent of the base project residential units as affordable on site, pay an in-lieu fee, or provide a combination of affordable units on site and an in-lieu fee. The project would comply with these provisions by providing 15 percent of the base project as VLI units, and pay a remainder in-lieu fee prior to first occupancy.
Issue 4: Lack of sufficient neighborhood and city-wide planning The appellant remarks on the lack of neighborhood planning specific to the Mid-University Avenue area and provides recommendations for more 5 City of Berkeley State Density Bonus Procedures:
https://berkeleyca.gov/sites/default/files/documents/State%20Density%20Bonus%20-%20Procedures.pdf
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
pedestrian-friendly street scape. The appellant also cites concerns about the lack of affordable housing included in the project.
Response 4: The project site is located within the University Avenue Strategic Plan (UASP) area. Adopted in 1996, the UASP contains several policies and goals related to the revitalization and redevelopment along University Avenue, encouraging more dense, mixed-use environs, and providing more housing and commercial opportunities.
The proposed project is consistent with the UASP policies as it is a higher density infill development that proposes 207 new dwelling units, with 21 units affordable at the VLI level, that will count towards the City’s share of regional housing needs allocation (RHNA). The number of affordable and market-rate units included in the project is consistent with State and local regulations.
Compared to both the eastern and western ends of the UASP area, the site is located within an underdeveloped section of University Avenue.
The project will redevelop the site, which currently maintains single-story commercial buildings and off-street, surface parking, with commercial and residential amenities on the ground floor and housing on the upper levels. Consistent with the UASP, the infill project establishes a dense residential, mixed-use development that is proximate to public transit, bicycle boulevards, and commercial corridors that offer various goods and services to residents, which encourages more pedestrian and multimodal oriented activities.
Issues 5+6: Assessment of development impacts and California Environmental Quality Act (CEQA)
The appellant asserts that negative impacts in the neighborhood were underestimated with regard to environmental and safety concerns, parking burdens, noise, shadowing, privacy, and the valuation of property. The appellant also asserts that a categorical exemption should not apply because of the size of the project.
Response 5+6: Section 21084 of the Public Resources Code requires the CEQA guidelines to have a list of projects that have been determined not to have a significant effect on the environment, and are therefore exempt from the provisions of CEQA. Based on the recommendation from staff, ZAB found that the project qualifies for the Class 32 (Infill Development Project) categorical exemption (Section 15332 of the CEQA Guidelines).
To be considered an infill development project, the Guidelines stipulate that the project must meet the following conditions -
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
1) The project is consistent with the applicable general plan designation, policies, and the zoning district regulations.
As noted on page 16 of the May 11 Staff Report (Attachment 5), the project is consistent with the Avenue Commercial General Plan land use designation, University Commercial zoning district. 2) The project occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses
As noted on page 3 and 9 of the May 11 Staff Report (Attachment 5), the project is located within the city limits and is located on a 28,936 square foot lot, which is less than five acres.
3) The project site has no value as habitat for endangered, rare or threatened species.
As noted on page 10 of the May 11 Staff Report (Attachment 5), the project site is located in a developed, urban area along University Avenue and has no value as a habitat for endangered, rare or threatened species.
4) Approval would not result in any significant effects relating to traffic, noise, air quality or water quality.
Standard COAs and project specific COAs 19, 66-67 (Attachment 1, Exhibit A) will mitigate and reduce project impacts related to traffic, noise, air quality or water quality.
5) The site can be adequately served by all required utilities and public services.
As noted on page 10 of the May 11 Staff Report (Attachment 5), the project site is located in a developed, urban area along University Avenue that is currently served by all required utilities and public services.
The proposed project satisfies all of the above conditions of an infill development project.
Additionally, none of the exceptions in CEQA Guidelines Section 15300.2 apply because: (a) the project will not “impact an environmental resource of hazardous or critical concern”; (b) there are no cumulative impacts because there have not been successive projects of this type in the same place; (c) there is not a “reasonable possibility that the [Project] will have a significant effect on the environment due to unusual circumstances”; (d) the project is not located near a scenic highway; (e) the project site is not located on a hazardous waste site pursuant to Government Code Section 65962.5; and (f) the project would not affect any historical resource because there are no landmarks or structures of merit at the project site.
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
Although additional CEQA review is not required, the standard and revised conditions of approval ensure supplementary coordination and review amongst the applicant, the City’s Toxics Management Division, and external governmental agencies concerning toxics handling prior to and during the construction of the development.
Traffic impact analysis is not required for projects located within a quarter mile of a “high-quality transit corridor”6 or a half mile from a “major transit stop.”7 Because this site is within a quarter mile of a high- quality transit corridor, no traffic impact analysis is required for the City’s review and consideration prior to entitlement. That said, consistent with input from the City’s Traffic Engineer, the project includes the following conditions to mitigate traffic and safety impacts:
Traffic Study (COA 19) – Provide a traffic memo analyzing traffic operations along University Avenue to revise the signal timing at this intersection, updating pedestrian crossing times.
Crosswalk (COA 66) – The project shall restripe north and south crosswalks at University/ California intersection with white continental crosswalk striping, per Caltrans standard.
Bulb Out (COA 67) – The project shall establish southwest corner concrete sidewalk bulb out at the University/ California intersection extending onto the University roadway, with bidirectional curb ramps. Existing conflicting right pocket striping to be removed by the project.
Further, the project is subject to the ZAB standard conditions of approval regarding construction noise and air quality, waste diversion, toxics, and stormwater requirements, thereby ensuring the project would not be detrimental to the neighborhood.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The project approved by the ZAB is in compliance with all state and local environmental requirements.
ALTERNATIVE ACTIONS CONSIDERED
Pursuant to BMC 23.410.040(G)(2), the Council may (1) continue the public hearing, (2) reverse, affirm, or modify the ZAB’s decision, or (3) remand the matter to the ZAB. 6 Defined in Public Resources Code 21155 as corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours.
7 Defined in CEQA Section 21064.3 as a site containing a rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
ZAB Appeal: 1598 University Avenue PUBLIC HEARING
September 26, 2023
Action Deadline:
Pursuant to BMC Section 23.410.040(I), if the disposition of the appeal has not been determined within 30 days from the date the public hearing was closed by the Council (not including Council recess), then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied.
CONTACT PERSONS
Jordan Klein, Director, Planning & Development Department, (510) 981-7534 Alene Pearson, Deputy Director of Planning, (510) 981-7489 Katrina Lapira, Project Planner, (510) 981-7488
Attachments:
1: Resolution
Exhibit A: Findings and Conditions – Revised, dated September 26, 2023 Exhibit B: Project Plans, received May 3, 2023
2: Appeal Letter dated June 1, 2023
3: ZAB Notice of Decision, dated May 18, 2023
4: ZAB Supplemental Memorandum, dated May 11, 2023
5: ZAB Staff Report, dated May 11, 2023
6: Incomplete Letter to Applicant, dated October 20, 2022 7: Index to Administrative Record
8: Administrative Record
9: Public Hearing Notice
RESOLUTION NO. ##,###-N.S.
AFFIRMING THE ZONING ADJUSTMENTS BOARD’S APPROVAL OF USE PERMIT # ZP2022-0099 TO DEMOLISH A NON-RESIDENTIAL STRUCTURE AND CONSTRUCT A 127,492 SQUARE-FOOT, EIGHT-STORY (89 FEET- 2 INCHES) MIXED-USE RESIDENTIAL BUILDING CONTAINING 207 DWELLING UNITS (21 VERY LOW – INCOME) AND 5,943 SQUARE FOOT COMMERCIAL SPACE, WITH 39 AUTOMOBILE PARKING SPACES AND 92 BICYCLE PARKING SPACE, UTILIZING
STATE DENSITY BONUS LAW, AND DISMISSING THE APPEAL
On January 26, 2022, Trachtenberg Architects (the Applicant) submitted a complete SB 330 preliminary housing development project application and was directed to submit a Use Permit Application.
On July 7, 2022, the Applicant submitted an SB 330 application for a Use Permit (ZP2022-0099) to demolish a non-residential structure and develop a mixed-use residential building utilizing State Density Bonus.
On January 23, 2023, after three rounds of comments from staff, the application was deemed complete.
On May 5, 2023, the Applicant submitted a revised, complete SB 330 preliminary housing development project application that superseded the previous application, vesting the project to the zoning, design, subdivision and fee requirements in effect as of that date.
On May 11, 2023, the Zoning Adjustments Board (ZAB) conducted a public hearing for the use permit application. After hearing public comments and holding discussion, the ZAB approved the use permit with revised of approval by a vote of 9-0-0-0-0 (Duffy, Gaffney, Kahn, Lunaparra, O’Keefe, Sanderson, Thompson, Tregub, Yung).
On May 18, 2023, a Notice of Administrative Decision approving the application was issued by the ZAB, which established a 14-day appeal period.
On June 1, 2023, Elizabeth Kowal, a neighbor at 1523 Addison Street, filed an appeal of the ZAB’s decision with the City Clerk to City Council.
On or before September 12, 2023, staff posted the public hearing notices near the site and mailed notices to property owners and occupants within 300 feet of the project site and to all registered neighborhood groups that cover this area.
WHEREAS, on September 26, 2023, the Council held a public hearing to consider the ZAB’s decision, and, in the opinion of this Council, the facts stated in, or ascertainable
from the public record, including comments made at the public hearing, warrant approving the project.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council hereby adopts the findings made by the ZAB in Exhibit A, affirms the decision of the ZAB to approve Use Permit #ZP2022-0099, adopts the conditions in Exhibit A and the project plans in Exhibit B, and dismisses the appeal.
Exhibits
A: Findings and Conditions, dated September 26, 2023
B: Project Plans, received May 3, 2023
A t t a c h m e n t 1, Exhibit A
F i n d i n g s a n d C o n d i t i o n s
SEPTEMBER 26, 2023
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
1598 University Avenue
Use Permit #ZP2022-0099 to demolish a non-residential structure and construct a 127,492 square-foot, eight-story (89 feet-2 inches) mixed-use residential building containing 207 dwelling units (21 Very Low-Income) and 5,943 square foot commercial space, with 39 automobile parking spaces and 92 bicycle parking spaces, utilizing State Density Bonus.
PERMITS REQUIRED
Use Permit to demolish two non-residential buildings, under Berkeley Municipal Code (BMC) Section 23.326.070
Use Permit to establish a mixed-use residential building, under BMC Section 23.204.020 Use Permit to create 5,000 square feet of new floor area in the University Commercial District, under BMC Section 23.204.030(A)
Use Permit to establish residential uses on the ground floor, under BMC 23.204.060(B)(3) Use Permit to reduce the rear setback (interior) to provide greater privacy along the side setback (south) that abuts residential district, under BMC 23204.060 Administrative Use Permit Administrative Use Permit for projections that exceed the maximum building height limit, under 23.304.050(A)
CONCESSIONS/WAIVERS UNDER GOVERNMENT CODE SECTION 65915-65918 Concession to allow for a reduction in open space to 10,365 square feet, where 41,400 square feet is required under BMC Section 23.204.060(D)(1)
Waiver to reduce the ground floor commercial use feature street frontage along University Avenue from 75 percent to 31.8 percent, under BMC Section 23.204.060(D)(6) Waiver to reduce the minimum ground floor area for a commercial use feature from 20 percent to
19.8 percent, under 23.204.060 (D)(6)
Waiver to increase the building height to 89’-2 where the requirement is 48’ under BMC Section
23.204.060(D)(1)
Waiver to increase the number of stories to eight where the maximum is four under BMC Section
23.204.060(D)(1)
Waiver to increase the FAR to 4.47, where the maximum is 3 under BMC Section
23.204.060(D)(1)
Waiver to reduce the rear setback to a 5-foot average where the requirement is a 20-foot average, under BMC Section 23.204.060(D)(1)
Waiver to reduce the side setback (University) to 0 feet where the requirement is a 2-foot average, under 23.204.060(D)(1)
1598 UNIVERSITY- USE PERMIT #ZP2022-0099 FINDINGS & CONDITIONS September 26, 2023 Page 2 of 25
1598 UNIVERSITY- USE PERMIT #ZP2022-0099 FINDINGS & CONDITIONS September 26, 2023 Page 3 of 25
I. CEQA FINDINGS
1. The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations, §15000, et seq.) pursuant to Section 15332 of the CEQA Guidelines (“Infill Development Project”).
The project meets all of the requirements of this exemption, as follows:
A. The project is consistent with the applicable general plan designation, policies, and the zoning district regulations.
As noted on page 16 of the May 11 Staff Report (Attachment 5), the project is consistent with the Avenue Commercial General Plan land use designation, University Commercial zoning district.
B. The project occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses
As noted on page 3 and 9 of the May 11 Staff Report (Attachment 5), the project is located within the city limits and is located on a 28,936 square foot lot, which is less than five acres.
C. The project site has no value as habitat for endangered, rare or threatened species.
As noted on page 10 of the May 11 Staff Report (Attachment 5), the project site is located in a developed, urban area along University Avenue and has no value as a habitat for endangered, rare or threatened species.
D. Approval would not result in any significant effects relating to traffic, noise, air quality or water quality.
Standard COAs and project specific COAs 19, 66-67 (Attachment 1, Exhibit A) will mitigate and reduce project impacts related to traffic, noise, air quality or water quality.
E. The site can be adequately served by all required utilities and public services.
As noted on page 10 of the May 11 Staff Report (Attachment 5), the project site is located in a developed, urban area along University Avenue that is currently served by all required utilities and public services.
2. Furthermore, none of the exceptions in CEQA Guidelines Section 15300.2 apply, as follows:
(a) the site is not located in an environmentally sensitive area, (b) there are no cumulative impacts, (c) there are no significant effects, (d) the project is not located near a scenic highway, (e) the project site is not located on a hazardous waste site pursuant to Government Code Section 65962.5, and (f) the project would not affect any historical resource.
II. HOUSING ACCOUNTABILTY ACT FINDINGS
A. The Housing Accountability Act, Government Code Section 65589.5(j) requires that when a proposed housing development complies with applicable, objective general plan and zoning standards, a local agency may not deny the project or approve it with reduced density unless the agency makes written findings supported by substantial evidence that: (A) the development would have a specific adverse impact on public health or safety unless disapproved or approved at a lower density; and (B) there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval or approval at a lower density.
B. Because the project complies with applicable, objective general plan and zoning standards, §65589.5(j) does apply to this project. No significant, quantifiable, direct and unavoidable
1598 UNIVERSITY- USE PERMIT #ZP2022-0099 FINDINGS & CONDITIONS September 26, 2023 Page 4 of 25
impacts, based on objective, identified written public health or safety standards, polices, or conditions, have been identified.
III. DENSITY BONUS FINDINGS
1. Pursuant to Government Code Section 65915, the Zoning Adjustments Board finds that:
A. Under the City’s methodology for implementing density bonuses, the “base project” consists of 138 units;
B. The project will provide at least 21 qualifying units in the 138-unit “base project”, as more fully set forth in Condition 39;
C. The project is entitled to a density increase of 50 percent over the otherwise maximum allowable residential density under the Zoning Ordinance and General Plan Land Use Element, under the requirements of Government Code Section 65915(b) and (f), plus three concessions or incentives. This equates to a density bonus of 69 units above the Base Project, for a total of 207-units.
2. In accordance with Government Code Section 65915(d) and (k), the Zoning Adjustments Board hereby grants the following concession in order to provide for affordable housing costs:
A. To allow for a reduction in open space provided to 10,365 square feet, where the requirement is 41,400 square feet under BMC Section 23.204.060(D)(1); and
3. In accordance with Government Code Section 65915(d), in order to allow construction of the proposed project with the density permitted under State law, the Zoning Adjustments Board finds that the approval of the concessions is required to provide for affordable rents, as provided in Government Code Section 65915(d)(1)(A) because 1) approval of the concession would result in identifiable and actual cost reduction; 2) approval of the concession would not have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources; and 3) would not be contrary to State or Federal law.
4. In accordance with Government Code Section 65915(e) the Zoning Adjustments Board hereby grants the following waivers:
To reduce the ground floor commercial use feature street frontage along University Avenue from 75 percent to 31.8 percent, under BMC Section 23.204.060(D)(6) To reduce the minimum ground floor area for a commercial use feature from 20 percent to 19.8 percent, under 23.204.060 (D)(6)
To increase the building height to 89’-2 where the requirement is 48’ under BMC Section 23.204.060(D)(1)
To increase the number of stories to eight where the maximum is four under BMC Section 23.204.060(D)(1)
To increase the FAR to 4.47, where the maximum is 3 under BMC Section
23.204.060(D)(1)
To reduce the rear setback to a 5-foot average where the requirement is a 20-foot average, under BMC Section 23.204.060(D)(1)
To reduce the side setback (University) to 0 feet where the requirement is a 2-foot average, under 23.204.060(D)(1)
To reduce the side setback (University) to 0 feet where the requirement is a 2-foot average, under 23.204.060(D)(1)
1598 UNIVERSITY- USE PERMIT #ZP2022-0099 FINDINGS & CONDITIONS September 26, 2023 Page 5 of 25
These waivers are required because state law requires the City to modify development standards as necessary to accommodate these density bonus units, and because the Zoning Adjustments Board hereby finds that the density bonus units can best be accommodated by granting these waivers.
5. In accordance with Government Code Section 65915(e), in order to allow construction of the proposed project with the density permitted under State law, the Zoning Adjustments Board finds approval of waivers is required 1) construct the proposed project at the density permitted under State law; 2) approval of requested waivers would not have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources; and 3) approval of the requested waivers would not be contrary to State or Federal law.
IV. FINDINGS FOR APPROVAL
6. As required by Section 23.406.040(E)(1) of the BMC, the project, under the circumstances of this particular case existing at the time at which the application is granted, would not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City because:
A. The project is a higher-density development in proximity to entitled and in-progress mixed uses of a comparable density along University Avenue, transit, commercial districts, and amenities that is compatible with the purposes of the zoning district and the surrounding uses and buildings. The project site is located within the C-U commercial district, within the UASP. The project provides 207 new dwelling units sized from studios to two-bedroom units. Twenty-one of the units will be restricted as affordable housing units for very-low- income residents. Over 5,000 square feet of commercial space will be provided primarily along California Street, accompanied by a pedestrian oriented on-site public plaza. The proposal also includes a 9,165 square foot open space feature at the ground floor. The ground floor also includes residential amenities like a club room, fitness center, and long- term bicycle parking room. The project site is well served by public transportation, with several AC transit bus stops along University Avenue, BART within a half-mile, and several bicycle share kiosks within a half-mile radius. The project adds additional dwelling units, new commercial floor area, and an at-grade garden on the ground floor, furthering the mixed-use uses that are compatible purposes of the district and not detrimental to neighborhood-serving commercial uses;
B. New shadows will be cast on existing residential and commercial buildings throughout the year. During the summer months new shadows will shade existing residential units to the west, south, and east of the project (1632 University, 2091 California, 2020 California, 1543 Addison, 1537 Addison, 1528 University, and 1530 University). New shadows shall also be cast existing residential units north and west (1597 University, 1587 University, 1535 University, and 1530 University) of the project during the winter months. These changes in sunlight pattern are found to be reasonable given the orientation of these properties in relation to the subject building and their close proximity given the urban residential environment. These affects are not found to be detrimental because limited in duration and
1598 UNIVERSITY- USE PERMIT #ZP2022-0099 FINDINGS & CONDITIONS September 26, 2023 Page 6 of 25
will not persist for extended periods throughout the year. Shadow impact on adjacent dwellings are to be expected, because the subject site is located in the C-U district, which allows heights of up to 48 feet without a use permit and roof top projections beyond the base height with an administrative use permit; and
C. The project is subject to the City’s standard conditions of approval regarding construction noise and air quality, waste diversion, toxics, and stormwater requirements, thereby ensuring the project would not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.
V. OTHER FINDINGS FOR APPROVAL
7. As required by Section 23.326.070 of the BMC, to approve the demolition of non-residential buildings, the ZAB must find that the demolition is required for the development of a new building and will not be materially detrimental to commercial needs of the impacted neighborhood. The proposed demolition of the existing non-residential buildings will not be detrimental needs of the neighborhood, as the project redevelops underdeveloped lots that are primarily used for surface parking with a new mixed-use building, with ground floor commercial that is compatible with existing development patterns along University Avenue. The project is aligned with the UASP goals and district’s objectives to promote appropriate new mixed-use infill development that is compatible with the commercial and residential areas within C-U district.
8. As required by Section 23.204.060(E) of the BMC, to approve a Use Permit for a project in the C-U district, the ZAB must find that the proposed use or structure is compatible with the purpose of the district, the surrounding uses and buildings, and does not interfere with the continuity of retail and service facilities at the ground level.
A. The project infills an underutilized site with a mixed-use building with ground floor commercial space fronting California Street, residential services (i.e. leasing office, lobby, bike storage, fitness center, club room) on the ground floor along University, and 207 dwelling units on the upper floors;
B. The project is consistent with the UASP and C-U district and will revitalize the corridor with additional housing and creates a service-oriented and commercial street-wall along both University Avenue and California Street.; and
C. With respect to the existing residential uses that abut the rear of the site, the project breaks down the massing by including an open-air courtyard on the ground floor, which results in a rear average setback of 57 feet, and stepping back the building with balconies at floors seven and eight.
9. As required by Section 23.204.060, a Use Permit for the reduction of rear setback within a commercial district, provided that the reduction enhances privacy or improved amenities in the Residential District. In the Base Project, the rear setback (interior) is reduced from a 20- foot average to 0 feet. This reduction allows for the massing of the building to move away from the Southern property line and results in 20-foot average setback that confronts the R2-A district.
The reduction also allows for more useable open space on the ground floor, a residential
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amenity. Generally, this reduction improves privacy along the southern property line, between the commercial and residential districts.
10.As required by BMC Section 23.304.050(A), the Zoning Adjustments Board finds that the proposed rooftop equipment, which exceeds the district height limit, does not exceed 15 percent the average floor area of the building’s floors. None of the equipment structures will be used as habitable or commercial space.
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VI. STANDARD CONDITIONS OF APPROVAL FOR ALL PROJECTS
The following conditions, as well as all other applicable provisions of the Zoning Ordinance, apply to this Permit:
1. Conditions Shall be Printed on Plans
The conditions of this Permit shall be printed on the second sheet of each plan set submitted for a building permit pursuant to this Use Permit, under the title ‘Use Permit Conditions.’ Additional sheets may also be used if the second sheet is not of sufficient size to list all of the conditions.
The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2” by 11” sheets are not acceptable.
2. Compliance Required (BMC Section 23.102.050)
All land uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations. Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property.
3. Approval Limited to Proposed Project and Replacement of Existing Uses (BMC Sections
23.404.060.B.1 and 2)
A. This Permit authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.
B. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.
4. Conformance to Approved Plans (BMC Section 23.404.060.B.4) All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.
5. Exercise and Expiration of Permits (BMC Section 23.404.060.C) A. A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.
B. A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.
C. The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction. The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant. A determination that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certification).
D. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.
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6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D) Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit, except as set forth in Standard Condition #5 above.
7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless the Permit is modified by the Board. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.
8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless of the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.
9. Transparency Acknowledgement (BMC Section 13.104.030) Prior to the issuance of a building permit for any Project subject to this Chapter:
A. A Responsible Representative of the Permittee shall certify under penalty of perjury that:
(1) the Permittee has reviewed Chapter 13.104 of the Berkeley Municipal Code; and (2) the Permittee will be responsible for demonstrating compliance with this Chapter.
B. The Permittee shall provide to the City a Contractor Pay Transparency Acknowledgment on a form approved by the City for this purpose. A Responsible Representative of the Permittee shall certify under penalty of perjury that the Contractor and all Qualifying Subcontractors performing work on the Project will comply with Chapter 13.104 of the Berkeley Municipal Code and with Labor Code sections 226(a) and 2810.5 for each employee who works on the Project.
10. Pay Transparency Attestations Following Project Completion (BMC Section 13.104.040) Within 10 days of the approved final inspection of any Project subject to this Chapter, each Permittee shall provide to the City for each Contractor and Qualifying Subcontractor a Pay Transparency Attestation on a form approved by the City. On each Pay Transparency Attestation, a Responsible Representative of the Contractor or Qualifying Subcontractor shall attest under penalty of perjury that the Contractor or Qualifying Subcontractor complied with Chapter 13.104 of the Berkeley Municipal Code and Labor Code sections 226(a) and 2810.5 for each employee who performed work on the Project. The City will maintain Pay Transparency Attestation forms for period of at least three years after their date of receipt by the City.
11. Posting of Ordinance (BMC Section 13.104.050)
Each day work is performed on the Project, each Permittee shall post, and keep posted in a conspicuous location where it may be easily read by employees during the hours of the workday, a notice that: (A) contains the text of Chapter 13.104 of the Berkeley Municipal Code; (B) explains that workers can report violations of Labor Code sections 226 and 2810.5 to the Labor Commissioner of the State of California; and (C) provides current contact information, including
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office address, telephone number, and email address of the Labor Commissioner of the State of California.
12. Conditions of Approval (BMC Section 13.104.060)
The requirements of Sections 13.104.030 through 13.104.050 shall be included as conditions of approval of any Use Permit or Zoning Certificate for any Project that is subject to this Chapter.
Failure to comply with the requirements of any provision of this Chapter shall be grounds for issuance of an administrative citation under Chapter 1.28 and/or the revocation or modification of any Use Permit issued for the Project under Chapter 23B.60.
13. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project.
The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specified herein.
Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.
VII. ADDITIONAL CONDITIONS IMPOSED BY THE ZONING ADJUSTMENTS BOARD Pursuant to BMC 23.406.040(E), the Zoning Adjustments Board attaches the following additional conditions to this Permit:
Prior to Submittal of Any Building Permit:
14. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction-related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and actions to the project planner on a weekly basis. Please designate the name of this individual below:
Project Liaison ____________________________________________________ Name Phone #
15. Plan Revision. Submit revised floor plans that reflect the step back at the facade that were illustrated in the renderings.
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16. Neighbor- Applicant Meeting. The applicant shall provide documentation showing that they have met with neighbors to discuss additional project considerations.
17. Final Design Review. The Project requires approval of a Final Design Review application by the Design Review Committee.
18. Address Assignment. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Use Permit. The new address(es) shall be assigned and entered into the City’s database prior to the applicant’s submittal of a building permit application.
19. Traffic Study. Provide a memo analyzing existing and existing plus project traffic operations at University Avenue / California Street. Project shall use findings to revise the signal timing at University Avenue /California Street, updating pedestrian crossing times and implementing a leading pedestrian interval.
20. Construction Noise Reduction Program. The applicant shall develop a site-specific noise reduction program prepared by a qualified acoustical consultant to reduce construction noise impacts to the maximum extent feasible, subject to review and approval of the Zoning Officer.
The noise reduction program shall include the time limits for construction listed above, as measures needed to ensure that construction complies with BMC Section 13.40.070. The noise reduction program should include, but shall not be limited to, the following available controls to reduce construction noise levels as low as practical:
A. Construction equipment should be well maintained and used judiciously to be as quiet as practical.
B. Equip all internal combustion engine-driven equipment with mufflers, which are in good condition and appropriate for the equipment.
C. Utilize “quiet” models of air compressors and other stationary noise sources where technology exists. Select hydraulically or electrically powered equipment and avoid pneumatically powered equipment where feasible.
D. Locate stationary noise-generating equipment as far as possible from sensitive receptors when adjoining construction sites. Construct temporary noise barriers or partial enclosures to acoustically shield such equipment where feasible.
E. Prohibit unnecessary idling of internal combustion engines.
F. If impact pile driving is required, pre-drill foundation pile holes to minimize the number of impacts required to seat the pile.
G. Construct solid plywood fences around construction sites adjacent to operational business, residences or other noise-sensitive land uses where the noise control plan analysis determines that a barrier would be effective at reducing noise.
H. Erect temporary noise control blanket barriers, if necessary, along building facades facing construction sites. This mitigation would only be necessary if conflicts occurred which were irresolvable by proper scheduling. Noise control blanket barriers can be rented and quickly erected.
I. Route construction related traffic along major roadways and away from sensitive receptors where feasible.
21. Damage Due to Construction Vibration. The project applicant shall submit screening level analysis prior to, or concurrent with demolition building permit. If a screening level analysis
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shows that the project has the potential to result in damage to structures, a structural engineer or other appropriate professional shall be retained to prepare a vibration impact assessment (assessment). The assessment shall take into account project specific information such as the composition of the structures, location of the various types of equipment used during each phase of the project, as well as the soil characteristics in the project area, in order to determine whether project construction may cause damage to any of the structures identified as potentially impacted in the screening level analysis. If the assessment finds that the project may cause damage to nearby structures, the structural engineer or other appropriate professional shall recommend design means and methods of construction that to avoid the potential damage, if feasible. The assessment and its recommendations shall be reviewed and approved by the Building and Safety Division and the Zoning Officer. If there are no feasible design means or methods to eliminate the potential for damage, the structural engineer or other appropriate professional shall undertake an existing conditions study (study) of any structures (or, in case of large buildings, of the portions of the structures) that may experience damage. This study shall establish the baseline condition of these structures, including, but not limited to, the location and extent of any visible cracks or spalls; and include written descriptions and photographs.
The study shall be reviewed and approved by the Building and Safety Division and the Zoning Officer prior to issuance of a grading permit. Upon completion of the project, the structures (or, in case of large buildings, of the portions of the structures) previously inspected will be resurveyed, and any new cracks or other changes shall be compared to pre-construction conditions and a determination shall be made as to whether the proposed project caused the damage. The findings shall be submitted to the Building and Safety Division and the Zoning Officer for review. If it is determined that project construction has resulted in damage to the structure, the damage shall be repaired to the pre-existing condition by the project sponsor, provided that the property owner approves of the repair.
Prior to Issuance of Any Building & Safety Permit (Demolition or Construction)
22. Tree Protection. Tree protection fencing shall be shown on all demolition, site, landscaping, grading, and utility plans, and shall be installed prior to demolition, grubbing, or grading around the five existing Crepe Trees located along California Street. Fences shall be 6 feet in height, composed of chain link with posts sunk into the ground. Fences are to remain until all grading and construction is completed.
23. Construction Noise Management - Public Notice Required. At least two weeks prior to initiating any construction activities at the site, the applicant shall provide notice to businesses and residents within 500 feet of the project site. This notice shall at a minimum provide the following:
(1) project description, (2) description of construction activities during extended work hours and reason for extended hours, (3) daily construction schedule (i.e., time of day) and expected duration (number of months), (4) the name and phone number of the Project Liaison for the project that is responsible for responding to any local complaints, and (5) that construction work is about to commence. The liaison would determine the cause of all construction-related complaints (e.g., starting too early, bad muffler, worker parking, etc.) and institute reasonable measures to correct the problem. A copy of such notice and methodology for distributing the notice shall be provided in advance to the City for review and approval.
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24. Construction Phases. The applicant shall provide the Zoning Officer with a schedule of major construction phases with start dates and expected duration, a description of the activities and anticipated noise levels of each phase, and the name(s) and phone number(s) of the individual(s) directly supervising each phase. The Zoning Officer or his/her designee shall have the authority to require an on-site meeting with these individuals as necessary to ensure compliance with these conditions. The applicant shall notify the Zoning Officer of any changes to this schedule as soon as possible.
25. Demolition. Demolition of the existing building cannot commence until a complete application is submitted for the replacement building. In addition, all plans presented to the City to obtain a permit to allow the demolition are subject to these conditions.
26. Construction and Demolition Diversion. Applicant shall submit a Construction Waste Management Plan that meets the requirements of BMC Chapter 19.37 including 100% diversion of asphalt, concrete, excavated soil and land-clearing debris and a minimum of 65% diversion of other nonhazardous construction and demolition waste.
27. Toxics. The applicant shall provide documentation verifying approval/ clearance from either Department of Toxics and Substances Control, the Regional Water Board, or Alameda County Local Oversight Program will be required to ensure vapor from the historic gas stations does not need to be better addressed with additional sampling or a soil vapor barrier.
28. Toxics. The applicant shall contact the Toxics Management Division (TMD) at 1947 Center Street or (510) 981-7470 to determine which of the following documents are required and timing for their submittal:
A. Environmental Site Assessments:
1) Phase I & Phase II Environmental Site Assessments (latest ASTM 1527-13). A recent Phase I ESA (less than 2 years old*) shall be submitted to TMD for developments for:
All new commercial, industrial and mixed use developments and all large improvement projects.
All new residential buildings with 5 or more dwelling units located in the Environmental Management Area (or EMA).
EMA is available online at:
http://www.cityofberkeley.info/uploadedFiles/IT/Level_3_-_General/ema.pdf 2) Phase II ESA is required to evaluate Recognized Environmental Conditions (REC) identified in the Phase I or other RECs identified by TMD staff. The TMD may require a third-party toxicologist to review human or ecological health risks that may be identified.
The applicant may apply to the appropriate state, regional or county cleanup agency to evaluate the risks.
3) If the Phase I is over 2 years old, it will require a new site reconnaissance and interviews.
If the facility was subject to regulation under Title 15 of the Berkeley Municipal Code since the last Phase I was conducted, a new records review must be performed.
B. Soil and Groundwater Management Plan:
1) A Soil and Groundwater Management Plan (SGMP) shall be submitted to TMD for all non- residential projects, and residential or mixed-use projects with five or more dwelling units, that: (1) are in the Environmental Management Area (EMA) and (2) propose any excavations deeper than 5 feet below grade. The SGMP shall be site specific and identify
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procedures for soil and groundwater management including identification of pollutants and disposal methods. The SGMP will identify permits required and comply with all applicable local, state and regional requirements.
2) The SGMP shall require notification to TMD of any hazardous materials found in soils and groundwater during development. The SGMP will provide guidance on managing odors during excavation. The SGMP will provide the name and phone number of the individual responsible for implementing the SGMP and post the name and phone number for the person responding to community questions and complaints. 3) TMD may impose additional conditions as deemed necessary. All requirements of the approved SGMP shall be deemed conditions of approval of this Use Permit.
C. Building Materials Survey:
1) Prior to approving any permit for partial or complete demolition and renovation activities involving the removal of 20 square or lineal feet of interior or exterior walls, a building materials survey shall be conducted by a qualified professional. The survey shall include, but not be limited to, identification of any lead-based paint, asbestos, polychlorinated biphenyl (PBC) containing equipment, hydraulic fluids in elevators or lifts, refrigeration systems, treated wood and mercury containing devices (including fluorescent light bulbs and mercury switches). The Survey shall include plans on hazardous waste or hazardous materials removal, reuse or disposal procedures to be implemented that fully comply state hazardous waste generator requirements (22 California Code of Regulations 66260 et seq). The Survey becomes a condition of any building or demolition permit for the project.
Documentation evidencing disposal of hazardous waste in compliance with the survey shall be submitted to TMD within 30 days of the completion of the demolition. If asbestos is identified, Bay Area Air Quality Management District Regulation 11-2-401.3 a notification must be made and the J number must be made available to the City of Berkeley Permit Service Center.
D. Hazardous Materials Business Plan:
1) A Hazardous Materials Business Plan (HMBP) in compliance with BMC Section
15.12.040 shall be submitted electronically at http://cers.calepa.ca.gov/ within 30 days if on-site hazardous materials exceed BMC 15.20.040. HMBP requirement can be found at http://ci.berkeley.ca.us/hmr/
Prior to Issuance of Any Building (Construction) Permit
29. Parcel Merger. The applicant shall secure approval of any parcel merger and/or lot line adjustment associated with this Use Permit.
30. Percent for Public Art: Consistent with BMC §6.13 the applicant shall either pay the required in- lieu fee or provide the equivalent amount in a financial guarantee to be released after installation of the On-Site Publicly Accessible Art.
31. Affordable Housing Mitigation Fee: Consistent with BMC §22.20.065, and fee resolution applicable to this project, the applicant shall provide a schedule, consistent with a schedule approved by the City Manager or her designee, outlining the timeframe for payment of the AHMF, and they shall pay this fee.
31. HVAC Noise Reduction. Prior to the issuance of building permits, the project applicant shall submit plans that show the location, type, and design of proposed heating, ventilation, and
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cooling (HVAC) equipment. In addition, the applicant shall provide product specification sheets or a report from a qualified acoustical consultant showing that operation of the proposed HVAC equipment will meet the City’s exterior noise requirements in BMC Section 13.40.050. The City’s Planning and Development Department shall review the submitted plans, including the selected HVAC equipment, to verify compliance with exterior noise standards.
32. Interior Noise Levels. Prior to issuance of a building permit, the applicant shall submit a report to the Building and Safety Division and the Zoning Officer by a qualified acoustic engineer certifying that the interior residential portions of the project will achieve interior noise levels of no more than 45 Ldn (Average Day-Night Levels). If the adopted Building Code imposes a more restrictive standard for interior noise levels, the report shall certify compliance with this standard.
33. Solar Photovoltaic (Solar PV) and Battery Energy Storage Systems (ESS). A solar PV system shall be installed, subject to specific limited exceptions, as specified by the Berkeley Energy Code (BMC Chapter 19.36). Energy storage system (ESS) readiness (new single-family, duplex, and townhouse homes) or ESS installation (new multifamily and most nonresidential buildings) shall be completed as specified by BMC Chapter 19.36. Location of the solar PV system and the ESS, if applicable, shall be noted on the construction plans.
34. Electric Vehicle (EV) Charging.
At least 5 percent of the project parking spaces for residential parking shall have installed Level 2 (40 amp) electric vehicle (EV) charging stations, at least 25 percent shall have installed low power Level 2 EV charging receptacles (20 amp), and at least 20 percent shall be “EV Capable” equipped with raceway, electrical panel service capacity, and an electrical system to support future Level 2 (40 amp) EV charging stations, or any more stringent EV charging requirements as specified by the Berkeley Green Code (BMC Chapter
19.37). Required Level 2 charging stations and low power Level 2 EV charging receptacles shall be installed, maintained, and made available for building resident use. EV charging station installations, EV charging receptacles, and EV Capable spaces shall be noted on the construction plans. Public access parking spaces shall provide any applicable mandatory accessibility provisions.
35. Nonresidential Electric Vehicle (EV) Charging.
At least 10 percent of project parking spaces for
nonresidential use shall have installed Level 2 (40 amp) electric vehicle (EV) charging stations and/or DC Fast Charging Stations, and least 40 percent shall be “EV Capable” equipped with raceway, electrical panel service capacity, and an electrical system to support future Level 2 (40 amp) EV charging stations, or any more stringent EV charging requirements, as specified by the Berkeley Green Code (BMC Chapter 19.37). EV charging station installations and EV Capable spaces shall be noted on the construction plans. Public access parking spaces shall provide any applicable mandatory accessibility provisions.
36. Water Efficient Landscaping. Landscaping, totaling 500 square feet of more of new landscaping or 2,500 square feet or more of renovated irrigated area, shall comply with the State’s Model Water Efficient Landscape Ordinance (MWELO). MWELO-compliant landscape documentation including a planting, grading, and irrigation plan shall be included in site plans. Water budget calculations are also required for landscapes of 2,500 square feet or more and shall be included in site plans. The reference evapotranspiration rate (ETo) for Berkeley is 41.8.