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ACTION CALENDAR October 27, 2009

To: Honorable Mayor and Members of the City Council From: Phil Kamlarz, City Manager

Submitted by: Dan Marks, Director, Planning and Development

Subject: ZAB Appeal: 1854-78 Euclid Avenue

RECOMMENDATION Adopt a Resolution dismissing the appeal and affirming the Zoning Adjustments Board’s decision to approve Use Permit No. 09-100000012 to establish a new Quick Service Restaurant, to waive the additional parking space required for the change of use, and to combine two commercial tenant spaces into one at 1854-78 Euclid Avenue in the Commercial Neighborhood (C-N) district.

Alternatively, if Council believes there may be an over-concentration of food uses in the subject area that contributes to a reduction in the diversity of commercial uses, then Council should set this matter for hearing.

FISCAL IMPACTS OF RECOMMENDATION No fiscal impact.

CURRENT SITUATION AND ITS EFFECTS On June 11, 2009, the Zoning Adjustments Board (ZAB) discussed the issues related to the application for a new food service at the location referenced above. On June 25, 2009, the Board approved the proposal with a vote of 7-1-1-0 (YES: Allen, Alvarez Cohen, Anthony, Doran, Matthews, Mikiten, Williams; NO: Shumer; ABSTAIN: Al-Hadithy). On July 13, 2009, Jamal Fares filed an appeal with the City Clerk.

BACKGROUND On February 3, 2009, the Bay Architects submitted a Use Permit application to merge two of the existing tenant spaces into a single space for a total of five spaces, establish a Quick Service restaurant in the newly formed unit, and reduce the required parking for the new restaurant from one space to zero spaces as part of a larger project to renovate the subject building. The existing building includes six tenant spaces: three are leased to food service establishments and three are occupied by retail/general commercial uses. The proposed building configuration would include only five spaces: four food services and one general commercial use.

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As described in more detail below, in 2004, the City Council requested that staff undertake the work necessary to establish quotas for food uses in this commercial area due to a perceived over-concentration of food uses. Due to other priorities, staff has been unable to undertake this work, and had indicated to Council at that time that there was sufficient basis in the purposes of the district to address the over-concentration issues. Since then, staff has recommended denial of a previous food service which was ultimately approved by the ZAB. In this instance, Staff indicated at the ZAB meeting of June 11, 2009, that, in its judgment, the addition of new food uses in this area would interfere with achieving the desired balances of land uses for this C-N district; for this reason, Staff once again recommended denial of the Use Permit. However, the Board concluded that the new use will serve students, University staff and residents of the area, and increase activity in this district that is experiencing a down turn, thereby supporting the local economy and neighborhood in general. ZAB noted several vacancies in this commercial district, and concluded that an additional food service use would not be expected to make it more difficult to achieve a diverse mix of uses at that location. As a result, ZAB instructed staff to return with findings and conditions for approval; at the following meeting of June 25, 2009, staff returned with the Board’s finding for approval and ZAB approved the application on consent. That same evening, the Board also approved another use permit application for a new Full Service Restaurant nearby at 1828 Euclid.

On July 13, 2009, Jamal Fares, owner of the Hummingbird Café at 1814 Euclid, appealed the Board’s approval of the new food service. The appellant did not attend the public hearings for this project, nor did he submit a statement to the Board about his objections to the project.

RATIONALE FOR RECOMMENDATION Mr. Fares’ appeal letter lists the following reasons for opposing this project:

1. Neighborhood over saturation of food service businesses; 2. 1878 Euclid Ave was already a successful retail bakery business; 3. Future tenant for 1878 Euclid Avenue has opposed retail conversions in the past,

including for space in 1854-87 Euclid Avenue.

This appeal does not state any objection to the ZAB’s approval of the tenant space conversion (i.e., converting two units into one) or parking reduction.

Issue 1: Neighborhood over saturation of food service businesses;

Staff Response: The appellant’s concern about the potential over-concentration of food uses in the Northside commercial district was addressed during the ZAB’s consideration of this matter on June 11 and 25, 2009. Staff’s report indicated that the new food service uses were inconsistent with the General Plan Economic Development Policy (ED-4) that calls for the maintenance of a diverse

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mix of commercial goods and services in the shopping district.*

Table 1. Summary of Existing Uses in the Northside commercial district.

In support of this finding, staff provided an inventory of commercial uses in the district. See the current data in Table 1, below, that includes the new Full Service Restaurant at 1828 Euclid.

Use Number of storefronts

Percentage of total storefronts

Food service* 19 56%

Retail/grocery 5 15

Personal service 3 9

Office 2 5

Vacancies 5 15

*Note: Existing food service total does not include the proposed service use.

The Zoning Adjustments Board (ZAB) did not find the predominance of food services in the area to be a detrimental condition. Rather, the Board asserted that food uses were an effective land use in this district because they service a diverse population of residents, workers and students; and several Board members stressed the importance of filling the existing commercial vacancies as the Northside commercial district responds to systemic shifts of the larger economy. They approved the application because they found it to be consistent with the Zoning Ordinance requirements for such a use, and to be generally non-detrimental with respect to the concentration of uses in the area.

Therefore, staff believes that the City Council could reach a similar conclusion and uphold the Board’s decision. The Board’s adopted findings related to the food service proposal are copied below.

The proposed Quick Service restaurant is favorable because it will serve students, University staff and residents of the area. It will also increase activity in this district that is experiencing a down turn, thereby supporting the local economy and neighborhood in general.

The complete findings and staff reports are attached for reference and further detail.

Previous consideration of food service limitations: Concern about the predominance of food services in the Northside commercial district has been

* Neighborhood and Avenue Commercial Districts, General Plan Economic Development Element,

page ED-7: “Maintain a diverse mix of commercial goods and services in the shopping districts. Use needs assessments to determine what basic goods and services are lacking, and establish criteria of appropriateness for neighborhood businesses that address the following issues…”

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before the City Council in the past. On June 17, 2003, the City Council referred to the Planning Commission a request from the Northside Merchants group to amend the Zoning Ordinance by adding a restaurant and food service quota in the Northside commercial district. On March 23, 2004, the Planning Commission responded to Council Referral 24-03 (CF 24-03) and reported that it did not recommend Use Limitations for food services in this district because the potential over-concentration of these uses could be addressed as a general non-detriment consideration during discretionary review of any permit application. The Council disagreed with the Commission’s conclusion and reiterated its request for a zoning ordinance amendment to address this issue. However, staff has been unable to respond to the request for modifications to the zoning regulations to establish food service quotas due to work plan constraints. Since 2004, ZAB has approved two new food services in the Northside district: a Carry Out Food Service at 1842 Euclid (2006), and a Full Service Restaurant at 1828 Euclid on June 25, 2009, discussed above. On February 27, 2006, the City Council upheld the Board’s decision to approve the food service at 1842 Euclid when the matter was on appeal. The Board and Council approved these uses although staff presented findings for denial due to over-concentration consistent with CF 24-03. Therefore, it appears that there may no longer be a concern about the possible over-concentration of food services in the Northside commercial district as stated in CF 24-03. Staff will address this issue as part of its next presentation to Council on the Policy Planning work program.

Issue 2: 1878 Euclid Ave was already a successful retail bakery business.

Staff Response: Mr. Fares’ statement about the success of the most recent bakery in the subject tenant space does not relate to any specific zoning ordinance requirement or the issue of detriment for consideration of a change of use.

Issue 3: Future tenant for 1878 Euclid Avenue has opposed retail conversions in the past, including for space in 1854-87 Euclid Avenue.

Staff Response: Subeil Nassar, the perspective tenant for the subject food service, identified himself at the public hearing of June 11, 2009, although he is not identified in this application. He is related to Samer Nassar, owner of the Brewed Awakening café at 1807 Euclid, who had previously opposed Use Permit applications for food services in this district. Opposition by a relative to another application is not relevant to consideration of this new food service because it has no bearing on whether the proposed use would satisfy the findings for general non-detriment and approval.

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ALTERNATIVE ACTIONS CONSIDERED

Pursuant to BMC Section 23B.32.060, the Council may take one of the following actions on an appeal of a Zoning Adjustments Board decision:

1. Affirm Zoning Adjustments Board Decision: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer do not warrant further hearing, the Council shall affirm the decision of the Zoning Adjustments Board and dismiss the appeal, in which case the application is approved.

2. Set for Public Hearing: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer warrant further hearing, the Council shall set the matter for a public hearing.

3. Remand to the Zoning Adjustments Board: If the Council determines that the facts ascertainable from the record prepared by the Zoning Officer warrant reconsideration of the application by the Zoning Adjustments Board, or if the applicant has submitted revisions to the application, the Council shall remand the matter to the Zoning Adjustments Board to reconsider the application, in which case it shall specify whether or not the Zoning Adjustments Board shall hold a new public hearing, and shall identify those issues which the Zoning Adjustments Board is directed to reconsider. (Council must specify issues that the Zoning Adjustments Board is directed to investigate and reconsider. A new decision may be appealed in the normal manner unless otherwise directed by Council. If 60 days pass, and the Zoning Adjustments Board has made no subsequent decision, then the original decision and the original appeal of that decision shall be placed back on the Council agenda in the same manner as a new decision and appeal.)

Action Deadlines:

1. Date appeal first appeared on Council agenda: October 27, 2009

2. If none of the three actions shown above is taken by November 26, 2009 (30 days from the date the appeal first appears on the agenda), the decision of the Zoning Adjustments Board is deemed affirmed.

3. A public hearing must commence within 60 days of the date the vote to hold a hearing is taken.

CONTACT PERSON Deborah Sanderson, Land Use Planning Manager, 510-981-7410

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Attachments: 1. Resolution

Exhibit A: Findings and Conditions of Approval, dated June 25, 2009 Exhibit B: Project Plans, received March 3, 2009

2. Appeal by Jamal Fares, received July 13, 2009 3. ZAB Staff Report, June 11, 2009 4. ZAB Staff Report, June 25, 2009 5. Index to Administrative Record 6. Administrative Record

RESOLUTION NO. ##,###-N.S.

DISMISSING THE APPEAL AND AFFIRMING THE ZONING ADJUSTMENTS BOARD’S DECISION TO APPROVE USE PERMIT NO. 09-100000012 TO ESTABLISH A NEW QUICK SERVICE RESTAURANT, TO WAIVE THE ADDITIONAL PARKING SPACE REQUIRED FOR THE CHANGE OF USE, AND TO COMBINE TWO COMMERCIAL TENANT SPACES INTO ONE AT 1854-78 EUCLID AVENUE IN THE COMMERCIAL NEIGHBORHOOD (C-N) DISTRICT WHEREAS, on February 3, 2009, The Bay Architects filed an application to merge two of the existing tenant spaces into a single space for a total of five spaces at the property 1854-78 Euclid Avenue, to establish a Quick Service restaurant in the newly formed unit, and to reduce the required parking for the new restaurant from one space to zero spaces as part of a larger project to renovate the subject building; and WHERAS, on March 3, 2009, the application was deemed complete; and WHEREAS, on June 11, 2009, the Zoning Adjustments Board held a duly noticed public hearing, closed the public hearing, found that the new Quick Service Restaurant will serve students, University staff and residents of the area, increase activity in this district that is experiencing a down turn thereby supporting the local economy and neighborhood in general, and be generally non-detrimental; and instructed staff to prepare Findings and Conditions for them to approve the project; and WHEREAS, on June 25, 2009, the Zoning Adjustments Board considered the revised findings and conditions submitted by staff and approved this Use Permit application as proposed; and WHEREAS, on July 13, 2009, Jamal Fares appealed the Board’s decision but did not demonstrate that any detrimental impact will result from the new Quick Service Restaurant use; and WHEREAS, on October 27, 2009, the City Council considered the record of the proceedings before the ZAB, and the staff report and correspondence presented to the Council, and, in the opinion of this Council, the facts stated in, or ascertainable from this information, do not warrant further hearing; and NOW THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley hereby affirms the decision of the ZAB to approve Use Permit No. 09-10000012 to approve the project at 1854-78 Euclid Avenue subject to the findings and conditions contained in Exhibit A and the Project Plans in Exhibit B, and dismisses the appeal. Exhibits A: Findings and Conditions of Approval, dated June 25, 2009 B: Project Plans, received March 3, 2009

ZAB Appeal:

1854-78 Euclid Ave Administrative Record

Attachment 6 to this report, ZAB Appeal: 1854-78 Euclid Avenue 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, City Council’s Web site http://www.cityofberkeley.info