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Resolution 14256CITY OF ALAMEDA RESOLUTION NO.14256 OVERTURNING THE PLANNING BOARD'S DECISION TO DENY MAJOR DESIGN REVIEW AND VARIANCE (PLN07-0020) ALLOWING THE CONSTRUCTION OF A TWO-STORY COVERED DECK LOCATED SEVEN FEET AND THREE INCHES FROM THE REAR PROPERTY LINE AT 2243 SANTA CLARA AVENUE WHEREAS, an application was made on October 2, 2007, by Italo Calpestri to build a rear two-story deck, at the existing four-unit building apartment building located at 2243 Santa Clara Avenue; and WHEREAS, the Planning Board held a public hearing on this application on March 24, 2008, examined the pertinent maps, drawings, documents and testimony, and denied the Variance and Major Design Review; and WHEREAS, the applicant submitted an application to appeal the Planning Board's decision on April 1, 2008; and WHEREAS, the City Council held a public hearing on August 5, 2008 and examined pertinent maps, drawings, documents and testimony; and WHEREAS, the subject property is located in an R-6, Hotel Residential zoning district; and WHEREAS, the City Council held a public hearing on August 5, 2008 and examined pertinent maps, drawings, documents and testimony; and WHEREAS, the City Council has made the following findings relevant to the Variance: 1. There are exceptional or extraordinary circumstances applying to the property involved or to the proposed use of this property. The office and apartment buildings on the site were both constructed in 1941, prior to the adoption of the current zoning code in 1958. Consequently, the apartment building is located 14 feet from the rear property line instead of the 20 feet required by the current AMC. This extraordinary circumstance limits the property owner's ability to bring the site into conformance with current private open space requirements without the rear yard setback variance. Other multi-family residential properties constructed in conformance with current zoning regulations can or do provide private open space without a rear yard setback variance. A field study and research shows that the subject building is one of five out of a total of 48 multi-family buildings in the vicinity that have nonconforming rear yard setbacks and do not provide private open space. In addition, the buildings on the site, which are listed as "S" historic resources on the City of Alameda Historic Building Study List, are protected from major alterations and demolition due to their age and architectural significance. The extraordinary set of circumstances applying to the subject property necessitate a rear yard setback variance in order to create conforming private open space while preserving the ` historic structure. 2. Because of such exceptional or extraordinary circumstances, the literal enforcement of specified provisions of this section would result in practical difficulty or unnecessary hardship such ' as to deprive the applicant of a substantial property right possessed by other owners of property in the same class of district. The rear of the property is the only feasible location on the parcel for the creation of private open space. A parking lot and driveway are located in front of the apartment building; an entry porch that provides ingress and egress for the four apartment units is located to the east (right side) of the structure; and a five foot side yard with one foot of clearance at two points between two side staircases and the property line — is located to the west (left side) of the building. If the Variance is not granted, and the AMC rear yard setback regulations are literally enforced, the property owner and his tenants would continue to be deprived of a substantial property right — the right to enjoy private open space on the property possessed by other property owners in the same class of district. Private open space in the R -6 zoning district and other residential zoning districts is common among developed parcels in the vicinity of the subject property and throughout Alameda. In addition, by creating private open space when none currently exists on the property, the property owner is bringing the property more into compliance with the current AMC. 3. The granting of the variance will not, under the circumstances of the particular case, be detrimental to the public welfare or injurious to persons or property in the vicinity. The proposed project, as conditioned, will not have adverse effects on adjacent properties or on the public. The upper and lower -level decks would be attached to the rear of the apartment building, which faces a solid wall with no windows to the north — the rear of the Alameda Elks Gym building; the Alameda Elks parking lot to the east; and an outdoor storage area for a multi - family apartment building to the west. The Fire Department has verified that the construction of the proposed deck structure would not present a problem for emergency access or jeopardize public safety. The California Building and Fire Codes would require a three -foot separation, at most, between the proposed deck structure and the rear of the Alameda Elks building. The proposed decks would be over 7 feet from the property line and over 11 feet from the rear wall of the Elks building. WHEREAS, the City Council has made the following findings relevant to the Major Design review: 1 The project is : compatible with its site, any adjacent and neighboring buildings and surroundings, and promotes harmonious transitions in scale and character in areas between designated land uses. The subject site is located on a block with predominately multi- family residential and office buildings. The two -story rear deck structure would be compatible with the adjacent and neighboring properties because many of the apartment buildings on the block were built with upper and lower- level balconies and access decks. The two apartment buildings located to the west of the subject property each have multi -level access decks. As conditioned in the resolution, the proposed doors and sidelight windows on the rear elevation would be compatible with the existing apartment building and the adjacent office building on the same parcel to the south. The new doors and windows must be made of either metal or wood, include true divided- lites, must be made of either metal or wood, and match the style of the existing windows on the rear of the building. NOW, THEREFORE, BE IT RESOLVED ` THAT the City Council has determined that this project is Categorically Exempt from the California Environmental Quality Act (CEQA), pursuant to Sections 15301(e), 15303(e), and 15331 of the CEQA Guidelines as follows: Section 15301(e) exempts additions to existing structures provided that the addition will not result in an increase of more than 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less. Section 15303(e) exempts the construction of limited' numbers new, small structures, including accessory structures. Section 15331 exempts historic resource restoration, rehabilitation, maintenance and repair projects BE IT FURTHER RESOLVED THAT the Council of the City of Alameda hereby approves PL07-0020 Major Design Review and Variance to allow the construction of a two-story deck seven feet and three inches from the rear property line at 2243 Santa Clara Avenue with the following conditions: 1. The new windows and doors on the rear of the structure shall include true divided-lites, must be made of either metal or wood, and will match the style of the existing windows on the rear of the building. 2. The rear yard — not including the area directly below the proposed deck structure — shall remain landscaped and the existing accessibility to the rear yard shall not be compromised. 3. EXPIRATION. The Major Design Review and Variance approvals shall expire two (2) years after the date of approval or by August 5, 2010, whichever is later, unless all of the above conditions have been met to the satisfaction of the Planning and Building Director prior to the date of expiration or, alternatively, an extension request is filed and approved by the City Council prior to the date of expiration unless authorized construction or use of the property has commenced. The applicant may apply for a time extension, not to exceed two (2) years. An extension request will be subject to approval by the City Council and must be filed prior to the date of expiration. 4. HOLD HARMLESS. The applicant shall defend (with counsel reasonably acceptable to the City), indemnify, and hold harmless the City of Alameda, its Redevelopment Agency, the Alameda City Planning Board and their respective agents, officers, and employees from any claim, action, or proceeding (including legal costs and attorney's fees) against the City of Alameda, Alameda Redevelopment Agency, Alameda City Planning Board and their respective agents, officers or employees to attack, set aside, void or annul, an approval by the City of Alameda, the Planning and Building Department, Alameda City Planning Board, the City of Alameda Redevelopment Agency or City Council relating to this project. The City shall promptly notify the applicant of any claim, action or proceeding and the City shall cooperate in such defense. The City may elect, in its sole discretion, to participate in the defense of said claim, action, or proceeding. NOTICE. No judicial proceedings subject to review pursuant to California Code of Civil Procedure Section 1094.5 may be prosecuted more than ninety (90) days following the date of this decision plus extensions authorized by California Code of Civil Procedure Section 1094.6 NOTICE. The conditions of project approval set forth herein include certain fees and other exactions. Pursuant to Government Code Section 66020 (d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations and exactions. The applicant is hereby further notified that the 90 -day appeal period, in which the applicant may protest these fees and other exactions, pursuant to Government Code Section 66020 (a) has begun. If the applicant fails to file a protest within this 90 -day period complying with all requirements of Section 66020, the applicant will be legally barred from later challenging such fees or exactions. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda during the Regular Meeting of the City Council on the 5th day of August, 2008, by the following vote to wit: AYES: Councilmembers deHaan, Matarrese, Tam and Mayor Johnson - 4. NOES: None. ABSENT: Councilmember Gilmore - ABSTENTIONS: None. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 6th day of August, 2008. Lara Weisiger, City lerk City of Alameda