DATE: November 7, 2023
TO: Paul Buddenhagen, City Manager
FROM: Chadrick Smalley, Community Development Director
SUBJECT: Request To Modify The Conditions Of Approval For A Four Unit Replacement, 1271 64th Street (UPDR21-005)
RECOMMENDATION
Staff recommends the City Council hold a public hearing on the applicant’s request for modification of the Conditions of Approval of Conditional Use Permit and Design Review Permit UPDR21-005 pursuant to Section 9-7.214(b) of the Emeryville Municipal Code (“EMC”).
The applicant requests that the City Council modify or remove Condition of Approval II.B.3 requiring payment of five times cost of the actual permit fee for construction work without required permits, a requirement that is independently set forth in the City’s Master Fee Schedule. Staff recommends that the City Council deny this request. There is no mechanism in the EMC to reduce or eliminate the fee required for work done without permits.
BACKGROUND
On December 8, 2016, the Planning Commission approved Conditional Use Permit and Design Review Permit UPDR16-007 to add an additional floor to an existing building to increase the size of two of the existing four units from 2-bedrooms to 3-bedrooms. The project included exterior building and landscaping modifications, retaining the existing four non-conforming parking spaces at the front of the property, adding electric vehicle charging stations to each vehicular parking space, and providing one short-term and eight long-term bicycle parking spaces. Additionally, the Planning Commission granted an Exception to Standards to exceed the maximum height of fences in Residential zones to decrease the visual impact of the parking from the street.
On December 15, 2020, Building Permit B2017-0223 was issued for the renovation of the four-plex, consistent with UDR16-007. During the process of inspecting the structure under Building Permit B2017-0223, City building inspectors identified that the construction exceeded the originally permitted scope, such that it involved total demolition of the existing residential units. As a result, a Stop Work Order was issued to property owner/applicant Aquis Bryant on May 18, 2021. A Notice of Violation was issued on May 28, 2021, which stated that “Planning Commission approval for the demolition of the previously existing residential structure and construction of a new residential structure” was required, in order to correct the violation and continue construction.
Per EMC Section 9-5.1203(b) the “Demolition of a significant or residential structure shall require approval of a conditional use permit by the City Council, upon a recommendation of the Planning Commission.” Consequently, while the original project scope described in UPDR16-007 only required Planning Commission approval, the new project required the approval of the City Council following a recommendation from the Planning Commission. On October 28, 2021, the Planning Commission recommended approval of the revised project; and on December 21, 2021, the City Council approved the revised project.
When it approved the revised project at the December 21, 2021 meeting, the City Council unanimously voted to amend the draft Conditions of Approval as follows:
Add Condition II.C.4: “Prior to issuance of any Certificate of Occupancy, the applicant shall be required to provide verification of the height of all as-built structures in the project by the City Engineer or designee at the applicant's sole cost and expense.” This condition was in response to a public comment that raised concerns about the potential height of the completed building not exceeding the maximum permitted building height of 30 feet.
Add condition II.B.3: “Prior to issuance of a building permit, the Community Development Director shall confirm that the applicant has paid five times the cost of all eligible permit fees in accordance with the City's Master Fee Schedule - Building Division, which requires such payment for construction work without permits.” While the Council added the description of the fee provisions to the Conditions of Approval for the project, the fee would be required regardless of whether it was included in the Conditions of Approval, or whether the project required Conditions of Approval at all. Both the EMC and the Master Fee Schedule require payment of all applicable fees:
EMC Section 8-1.04(r): “A permit shall not be valid until the fees prescribed by law have been paid, nor shall an amendment to a permit be released until the addition[al] fee, if any, has been paid in accordance with the City of Emeryville Master Fee Schedule.” EMC Section 8-1.04(w): “Any person who commences any work on a building, structure, electrical, gas, mechanical or plumbing system before obtaining the necessary permits shall be deemed as Construction work without required permits and subject to penalty fee assessment established by the City of Emeryville Master Fee Schedule that shall be in addition to the required permit fees.” The Master Fee Schedule (Attachment 8) states on page four: “CONSTRUCTION WORK WITHOUT REQUIRED PERMITS: 5 times cost of the actual permit.” Section 9-7.214(b) of the EMC provides that “Modifications to approved plans or conditions of approval that are not deemed minor by the [Community Development] Director require the approval of the original decision-maker(s). Any person holding a permit granted under these planning regulations may apply for such modification by following the same procedure required for the initial application for the permit. Such modifications may be to the terms of the permit itself or to conditions of approval.” The applicant has requested to have the Condition of Approval regarding the five times fee removed or modified on the basis that the work without permits was not authorized by the property owner and was done by the contractor without the knowledge of the property owner. Pursuant to EMC Section 9-7.214(b), the Council is tasked with hearing and approving such a modification since it was the original decision-maker.
At the September 28, 2023 Planning Commission meeting, the three Commissioners present voted unanimously to recommend that the City Council deny the request and that the Conditions of Approval be upheld as originally instituted.
DISCUSSION
The applicant has submitted a variety of materials as part of the application for modification of the permit, which have been attached (Attachments 1-5). To modify this Conditional Use Permit, the City Council would need to confirm and make the findings required for all conditional use permits as required by EMC Section 9-7.505. The conditional use permit findings made by the City Council at the December 21, 2021 meeting (when the revised project was approved) are included in Resolution No. 21-140 (Attachment 8).
However, a property owner is responsible for all construction on their property and the payment of all fees related to any development projects on their property, regardless of how or why construction activities occur. And regardless of the property owner’s intent or any contractor’s intent, the EMC and the Master Fee Schedule require payment of five times the building permit fee for work done without permits. Thus, even if the Conditions of Approval for UPDR16-007 did not expressly require such payment, it would still be required. Finally, neither the EMC nor the Master Fee Schedule provide for or otherwise allow ad hoc reduction of this fee for an individual project.
FISCAL IMPACT
The Building Division has calculated the fees due for the Project in consideration of the requirements of the Master Fee Schedule as outlined above. The fees for the demolition permit are $1,423.15 and $62,282.77 for the building permit, for a total of $63,705.92.
Staff’s recommendation to uphold the original Conditions of Approval for UPDR16-007 has no fiscal impact.
Staff Communication with the Public
As noted above, on September 28, 2023, the Planning Commission held a public hearing on the application to modify the Conditions of Approval for UPDR16-007. One public commenter indicated support for staff’s recommendation to uphold the original conditions of approval and associated fees and expressed a desire for the project to be completed. The Planning Commission voted unanimously to uphold the original Conditions of Approval.
CONFLICT OF INTEREST
None.
CONCLUSION
Staff does not recommend modification of the Conditions of Approval to remove the five times cost of the actual permit fee for construction work without required permits. This fee is required by the City’s Master Fee Schedule and there is no mechanism in the EMC to reduce or eliminate the fee required for work done without permits.
PREPARED BY: Navarre Oaks, Senior Planner
REVIEWED BY: Miroo Desai, Planning Manager
Approved and Forwarded to the
City Council of the City of Emeryville:
Paul Buddenhagen, City Manager
ATTACHMENTS:
Applicant Attachment - Building Permit
Applicant Attachment - Text Message Screenshot
Applicant Attachment - Email with Architect
Applicant Attachment - Correction Notice
Applicant Attachment - Tenant Agreement
Conditions of Approval, December 21, 2021
Master Fee Schedule (see page 4: “CONSTRUCTION WORK WITHOUT REQUIRED PERMITS: 5 times cost of the actual permit”) Resolution No. 21-140
Modify the Conditions of Approval for a Four Unit Replacement, 1271 64th Street (UPDR21-005) City Council Meeting | November 7, 2023
City of Emeryville
CALIFORNIA
MEMORANDUM