Resolution 12724CITY OF ALAMEDA RESOLUTION NO. 12724
UPHOLDING THE PLANNING BOARD'S DECISION THAT THE PROPOSAL FOR A
TRIPLEX AT 2615/2617 SANTA CLARA AVENUE IS SUBSTANTIALLY IDENTICAL
TO A 1986 PROPOSAL FOR A TRIPLEX ON THIS PARCEL AND THAT NO NEW
DECISION WILL EE MADE ON THIS PROPOSAL
WHEREAS, an application was made on August 21, 1995
requesting a design review, to allow demolition of two residences
and construction of a triplex; and
WHEREAS, On September 19, 1995 the Planning Director reviewed
this Design Review submittal for demolition of two structures and
construction of triplex and found that it is substantially similar
to a 1986 proposal of a triplex on this parcel and that no new
decision would be made; and
WHEREAS, On October 3, 1995, the applicant appealed the
Planning Director's decision;
WHEREAS, the Planning Board held a public hearing on this
application on November 13, 1995, and examined pertinent maps,
drawings, and documents; and
WHEREAS, On November 13, 1995, the Planning Board unanimously
upheld the Planning Director's decision; and
WHEREAS, the subject property is designated medium density
residential on the General Plan Diagram; and.
WHEREAS, the subject property is located in a R-4
(Neighborhood Residential) Zoning District; and
WHEREAS, On December 19, 1995 the City Council held a public
hearing, and has examined pertinent maps, drawings, and documents;
and
WHEREAS, the City Council concurs in the findings of the
Planning Board, and upholds the Planning Board's decision; and
WHEREAS, the City Council has made the following findings with
respect to the appellant's bases of appeal (in bold):
1. The Planning Department and the Planning Director are
under statutory duty to process, and to accept or reject
on the merits, any application for design review for
which, like the application in question, proper forms
have been filed and appropriate fees have been paid. The
Planning Director abrogated that duty by refusing to
process, and thus effectively denying without reference
to the merits, the application in question.
1
The appellant is correct that generally the Planning
Department must process any application that is properly
filed with the City, even though the Planning Director
may believe that the application will ultimately be
denied on its merits. The key issue here is that the
project can be evaluated on its merits and that there is
a possibility that the project can be approved. This is
not the case with the project proposal submitted by Mr.
Murphy. Because Murphy's proposal does not comply with
Measure A, it cannot be approved. Mr. Murphy was so
advised in 1986 by the then Planning Director. The
current application under appeal, Design Review 95-78, is
in essence the same proposal which was rejected in 1986.
Furthermore, the Planning Director's decision is not an
issue of judgement and the applicant/ appellant does not
assert in the appeal that the application can be found
consistent with Measure A. It is not reasonable that the
City must accept and process repetitious applications
that are clearly inconsistent with the City's regulations
and cannot be revised to comply.
b) The application in question is neither identical nor
substantially identical to any previous application for
design review submitted to the Planning Department and
the Planning Director by appellant.
In 1986, the applicant proposed the demolition of two
residential structures located at 2611 and 2615 Santa
Clara Avenue and an accessory building located at 2617
Santa Clara Avenue to accommodate construction of a
triplex. The Planning Director has found that the 1995
Design Review application is substantially the same to
the 1986 proposal for the following reasons:
1) Both projects were proposed to be developed on the
identical larger parcel held by the applicant; and
2) The section of the parcel proposed for development
is the same because both the 1986 and the 1995
proposals involved property at 2611, 2615 and 2617
Santa Clara Avenue; and
3) Both applications involve the demolition of two
residences and development of a triplex in
contravention to Measure A; and
4) One residence (2615 Santa Clara Avenue) was
proposed to be demolished in both the 1995 Design
Review and 1986 proposal and the property at 2617
Santa Clara was proposed to have an accessory
building demolished in 1986 and in the current
application the dwelling would also be demolished.
Because of these commonalities, the Planning Director
determined that the application is substantially the same
as the 1986 request which the Planning Director rejected
in 1986.
c) Provisions of Chapter 4 of the former Alameda Zoning
Ordinance, prohibiting the construction of new buildings
or additions to existing buildings which would result in
multiple dwelling units, i.e. units intended to house
three or more families, were illegal and unenforceable,
both on their face and as applied (See Response to (d)
below).
d) Provisions of Article III of the present Alameda
Zoning Ordinance, prohibiting the construction of new
buildings or additions to existing buildings which would
result in multiple dwelling units, i.e. units intended to
house three or more families, are illegal and
unenforceable, both on their face and as applied.
The appellant asserts that the Planning Department must
determine the legality of ordinances and provide factual
basis to substantiate the legality of the provisions
limiting a structure to 2 units. He further asserts the
court found in Murphy v. City of Alameda that in order
for the City to enforce its Zoning provisions it must
first prove the provision is "necessary for the
protection of the public health, safety, or welfare of
the population of the City..." (see Attachment # 3, Page
5 of applicant/appellant letter dated October 23, 1995).
The appellant is incorrect about the responsibilities of
the Planning Director to provide the substantiation of
the legality of the zoning provisions as part of the
decision on a permit application. The Planning Director
assumes adopted City Ordinances are valid and does not
question City ordinances each time they are applied as
part of permit review because it would lead to a time
consuming and unproductive process. The
applicant/appellant has available other avenues which
provide for the exercise of a challenge to the legality
of the ordinances. Such avenues do not include that the
Planning Department process repetitious applications for
projects that cannot be approved but that Mr. Murphy may
pursue appeals to the Planning Board, City Council and
ultimately to the courts. Mr. Murphy has already
exercised such avenues following the 1986 determination
of the Planning Director regarding the triplex proposal.
The fact that he did not conclude that process to his
satisfaction is not a reason why the City should
undertake a second review of a question asked and
answered.
THEREFORE BE IT RESOLVED that the City Council upholds the
Planning Board's decision that the proposal to construct a triplex
at 2615 and 2617 Santa Clara Avenue is substantially identical to
a 1986 proposal of a triplex on this parcel and that no new
decision will be made on this proposal.
I, the undersigned, hereby certify that the foregoing
Resolution was duly and regularly adopted and passed by the Council
of the City of Alameda in regular meeting assembled on the 19th
day of December , 1995, by the following vote to wit:
AYES: Councilmembers Arnerich, DeWitt, Lucas,
Mannix and President Appezzato - 5.
NOES: None.
ABSENT: None.
ABSENTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the
official seal of said City this 20th day of December , 1995.
Diane "B. Felsch, City Clerk
City of Alameda