Resolution 13317CITY OF ALAMEDA RESOLUTION NO. 13 317
APPROVING THE APPEAL OF ERNEST RAMIREZ OF KEYSTONE
COMPANY FOR JOHN NG AND OVERTURNING, IN PART, THE PLANNING
BOARD'S DENIAL OF VARIANCE, V00 -26, AND PARTIAL DENIAL OF
MAJOR DESIGN REVIEW, DR00 -117, FOR THE EXPANSION OF THE
WIENERSCHNITZEL COMMERCIAL COMPLEX AT 1700 WEBSTER STREET
WHEREAS, applications were made on November 17, 2000, by Ernest Ramirez for John Ng
requesting a Major Design Review for the expansion of commercial space, the reduction in the size
of an external patio, and the installation of windows to enclose the external patio. Variances are
requested to permit the provision of 15 parking spaces, where 16 parking spaces are required and for
the reduction of the width of planters along the Pacific Avenue frontage to 3 feet wide where a
minimum 5 feet width is required; and
WHEREAS, the applications were accepted as complete on November 17, 2000; and
WHEREAS, the subject property is designated Community Commercial on the General Plan
Diagram; and
WHEREAS, the subject property is located in a C -C (Community Commercial) Zoning
District; and
WHEREAS, the subject parcel is located within the boundaries of the Business and
Waterfront Improvement Project (BWIP) Area; and
WHEREAS, the Planning Board found that enclosure of the patio area with operable
windows shall create an unroofed sales area which requires one additional parking space, pursuant
with AMC, Subsection 30 -7.5; and
WHEREAS, the requirement for one additional parking space for the enclosed patio area and
expansion of the commercial retail buildings would require a total of seventeen (17) off- street
parking spaces, where the project only provides a total of fifteen (15) off - street parking spaces; and
WHEREAS, the Planning Board held a public hearing on this application on December 11,
2000 and has considered all available testimony and information, reviewed the administrative record
and all pertinent maps, drawings, and documents; and
WHEREAS, the Planning Board of the City of Alameda denied Variance, V00 -26, to permit
the provision of fifteen (15) parking spaces, where seventeen (17) parking spaces are required and
for the reduction of the width of planters along the Pacific Avenue frontage to three (3) feet wide
where a minimum five (5) feet width is required and denied, in part, Major Design Review, DR00-
117, amending the approved plans for the commercial complex to expand the corner commercial
suite into the patio area, reduce the size of the patio, and install windows to enclose the patio area,
and reconfiguration of the parking lot, and approved Major Design Review, DR00 -117, in part, for
the twenty -eight (28)- square foot expansion of the Wienerschnitzel building, based on the findings
of, and subject to conditions in, the Planning Board Resolution PB -00 -108; and
WHEREAS, the Planning Board found that the proposal is Categorically Exempt from the
California Environmental Quality Act, pursuant to Section 15303 of the Guidelines, Class 3 (c) -
New construction of small structures; and
WHEREAS, an appeal was filed on December 19, 2000 to the City Council to the Planning
Board's decisions denying Variance, V00 -26 and denying, in part, Major Design Review, DR00-
117; and
WHEREAS, the appellant submitted a written request on January 9, 2001, to reschedule the
City Council's public hearing of this appeal to February 20, 2001; and
WHEREAS, the City Council held a public hearing on this appeal on February 20, 2001, and
considered all available testimony and information, reviewed the administrative record and all
pertinent maps, drawings, and documents; and
WHEREAS, during the public hearing the applicant submitted an alternative plan which
shows sixteen (16) parking spaces, with seven (7) full sized spaces, one (1) disabled parking space,
and eight (8) compact spaces, but was not reviewed by City staff to confirm compliance with City
standards; and
WHEREAS, the City Council finds that there is no merit to the bases of the appeal, relative
to approval of the Variance to permit the provision of 15 parking spaces, where 17 parking spaces
are required, pursuant with Subsection 30 -21.1 of the Alameda Municipal Code after consideration
of all pertinent testimony and information; and
WHEREAS, the City Council of the City of Alameda is not able to make the following
findings with respect to the appellant's bases of appeal, relative to approval of the Variance to permit
the provision of 15 parking spaces, where 17 parking spaces are required, pursuant with Subsection
30 -21.1 of the Alameda Municipal Code:
There are extraordinary circumstances applying to the property relating to the physical
constraints of the parcel, such as size, shape, topography, location or surroundings.
This finding cannot be made. There are no extraordinary property related constraints because the
vacant lot is not unusual in any respect. In addition, the applicant demonstrated that he is not
constrained in the development of the site by obtaining final Design Review approval and receiving
a building peg nit for the construction of two conforming commercial suites, as approved by the City
Council.
2
2. Because of extraordinary circumstances, the literal enforcement of the Zoning
Ordinance standards would result in practical difficulty or unnecessary hardship such
as to deprive the applicants of a substantial property right possessed by other owners
of the property in the same district.
This finding cannot be made. There is not an extraordinary circumstance which results in a practical
difficulty or unnecessary hardship because the applicant has the ability to redesign the circulation
on the site and relocate the building on the site To require the applicant to change his plans to
relocate the building on the site or reconfigure the buildings, would not represent the deprivation of
a substantial property right. Other owners of similar vacant properties are required to provide
development plans which conform with City parking and landscaping standards. Therefore, the
applicant's requirement to conform with these parking standards does not constitute the loss of a
property right that other owners of similar vacant property enjoy.
3. The granting of the Variance, under the circumstances of this particular case, will not
be detrimental to the public welfare or injurious to persons or property in the vicinity.
This finding cannot be made. To peimit the reduction in required parking for a standard retail use
would create the detriment of generating the need for more on- street parking, especially in the
unmetered adjacent residential areas.
WHEREAS, the City Council finds that there is merit to the bases of the appeal, relative to
approval of the Variance to permit the reduction of the width of planters along the Pacific Avenue
frontage to 3 feet wide where a minimum 5 feet width is required, pursuant with Subsection 30 -21.1
of the Alameda Municipal Code after consideration of all pertinent testimony and information; and
WHEREAS, the City Council of the City of Alameda is able to make the following findings
with respect to the appellant's bases of appeal, relative to approval of the Variance to permit the
reduction of the width of planters along the Pacific Avenue frontage to 3 feet wide where a minimum
5 feet width is required, pursuant with Subsection 30 -21.1 of the Alameda Municipal Code:
1. There are extraordinary circumstances applying to the property relating to the physical
constraints of the parcel, such as size, shape, topography, location or surroundings.
This finding can be made. The extraordinary circumstance applying to this property is that it is a
commercially zoned property which is located on a comer lot which abuts two residentially
developed properties on each street frontage. In order to decrease the impact of this commercial use
on both adjacent properties, the project proposal would increase the width of the landscaped areas
between the commercial use and both adjacent residential properties and increase the level of
landscaping to include additional trees. The landscaped areas would be increased to five (5) feet in
width, where a minimum one (1) foot of landscaped area is required along the northerly boundary,
and the landscaped area along the easterly boundary would be increased to 6.5 -feet in width, where
three (3) feet is the minimum required landscaped area
2. Because of extraordinary circumstances, the literal enforcement of the Zoning
Ordinance standards would result in practical difficulty or unnecessary hardship such
as to deprive the applicants of a substantial property right possessed by other owners
of the property in the same district.
This finding can be made. The literal enforcement of the Zoning ordinance would result in the
practical difficulty of preventing the provision of additional landscaping to provide an additional
buffer zone between the commercial use and both adjacent properties. This would result in an
unnecessary hardship by exposing both abutting residential uses to negative visual characteristics
of the proposed commercial activity.
3. The granting of the Variance, under the circumstances of this particular case, will not
be detrimental to the public welfare or injurious to persons or property in the vicinity.
This finding can be made. Decreasing the planter width along the Pacific Avenue frontage from the
required 5 -feet width to a 3 -feet width would provide a negligible visual effect. Because this planter
borders an access and exit driveway, vegetation would be limited to prevent a visual barrier.
Therefore, the reduction of the planter width would have little effect upon visually screening the
parking area from the street. In addition, the proposal to increase the landscape buffer on both the
northerly and easterly sides of the property would serve to provide more landscaping and greater
capacity for additional trees to soften the hardscape of the parking area and provide a superior buffer
along both property lines.
WHEREAS, the City Council finds that there is merit to the bases of the appeal, relative to
the Major Design Review for the expansion of the commercial suite into the patio area, the reduction
in the size of an external patio, the installation of windows to enclose the external patio, and the
reconfiguration of the on -site parking after consideration of all pertinent testimony and information;
and
WHEREAS, the City Council of the City of Alameda is able to make the following findings
with respect to the appellant's bases of appeal, relative to the Major Design Review for the
expansion of the commercial suite into the patio area, the reduction in the size of an external patio,
the installation of windows to enclose the external patio, and the reconfiguration of the on -site
parking, as follows:
1. The project will have no adverse effects on persons or property in the vicinity because:
Expanding the commercial suite into the patio area:
This finding can be made. While the proposed expansion of commercial floor space would not
create a significant design issue, the expansion would result in a parking deficit of two parking
spaces which would create additional demand for on- street parking. However, this parking deficit
could be mitigated if the Planning Board is able to approve Parking In -Lieu fees to address this
parking deficit, pursuant to AMC., Subsection 30 -7.13( c ).
4
Enclosing the patio area with operable windows and a door:
This finding can be made. The enclosure of the patio with windows and a door would not by itself
cause a detriment because patio windows that can be opened would not alter the outdoor dining
experience of this space.
Reconfigure the parking lot:
This finding can be made. The proposed reduction in the planter width along the Pacific Avenue
frontage and the increase of the northerly and easterly planter widths would not significantly alter
the appearance of the site, would improve the visual buffer between the commercial use and the
abutting residential uses, and, therefore, would not result in a detriment to the neighborhood.
2. The additions will be compatible and harmonious with the design and use of
surrounding properties because:
Expanding the commercial suite into the patio area:
This finding can be made. The proposed expansion of commercial floor space would create a street
frontage which is compatible and harmonious with the design of the surrounding commercial
properties especially if the patio windows which front upon Webster Street could be opened to
promote and improve street interaction with the business which occupy the buildings. If parking in-
lieu fees could be approved by the Planning Board, the increased parking demand could be mitigated
for the life of the use.
Enclosing the patio area with operable windo
s and a door:
This finding can be made. The enclosure of the patio with windows that can be opened to the street
and a door to the parking lot would be harmonious with the design of the surrounding commercial
properties because patio windows that can be opened would not alter the consistent street facade
which is a standard of the historical development of commercial structures within the Webster Street
district. This enclosure would not by itself be non - harmonious because the windows that can be
opened would not alter the outdoor dining experience of this space.
Reconfigure the parking lot:
This finding can be made. The proposed reduction in the planter width along the Pacific Avenue
frontage and the increase of the northerly and easterly planter widths would not significantly alter
the appearance of the site and, therefore, would be harmonious with the design of the surrounding
neighborhood, especially if additional trees are planted in this planter, exceeding the minimum trees
required by the parking ordinance.
3. The proposal will be consistent with the City's Design Review Guidelines because:
Expanding the commercial suite into the patio area:
This finding can be made. The proposed expansion of commercial floor space would create a street
frontage which is compatible and harmonious with the design of the surrounding commercial
properties.
Enclosing the patio area with operable windows and a door:
This finding can be made. The enclosure of the patio with windows and a door would be
harmonious with the design of the surrounding commercial properties because it would not alter the
consistent street facade which is a standard of the historical development of commercial structures
within the Webster Street district.
Reconfigure the parking lot:
This finding can be made. The proposed reduction in the planter width along the Pacific Avenue
frontage and the increase of the easterly planter width would not significantly alter the appearance
of the site and, therefore, would be harmonious with the design of the surrounding neighborhood,
especially if more trees are planted in the larger planter area.
WHEREAS, the City Council of the City of Alameda hereby determines that the proposal
is Categorically Exempt from the California Environmental Quality Act, pursuant to Section 15303
of the Guidelines, Class 3 (c) - New construction of small structures; and
WHEREAS, the project involves construction, expansion, or conversion of a building for
non - residential use, the applicant /property owner shall meet the requirements of the Alameda
Municipal Code, Section 27 -1 ( "Affordable Housing Unit/Fee Plan prepared by the applicant and
approved by the City Manager's designee, the Building Official.").
NOW, THEREFORE, BE IT RESOLVED that the City Council grants the appeal in part and
denies the appeal in part by upholding the Planning Board's denial of Variance, V00 -26, to permit
the provision of 15 parking spaces, where 17 parking spaces are required, but overturns the Planning
Board's denial of Variance, V00 -26, to permit the reduction of the width ofplanters along the Pacific
Avenue frontage to 3 feet wide where a minimum 5 feet width is required and approve, Major
Design Review, DR00 -117, amending' the approved plans for the commercial complex to expand
the comer commercial suite into the patio area, reduce the size of the patio, and install windows to
enclose the patio area, and reconfiguration of the parking lot, subject to the following conditions:
1. This approval shall not be in full force and effect until the applicant /property owner secures
Planning Board approval for payment of parking in -lieu fees from the Planning Board,
pursuant with AMC., Subsection 30 -7.13 (c ).
2. This approval supersedes and replaces the conditions of Design Review approval contained
in the City Alameda Resolution No. 13215. However, this approval does not alter the
original conditions of Use Permit, UP- 99 -45, approval.
3. Parking in -lieu fees shall address a parking deficit of up to two parking spaces for a total
parking need of seventeen (17) parking spaces. However, if the applicant submits an
alternative project proposal which provides sixteen (16) on -site parking spaces which comply
with all City standards to the satisfaction of the Planning Director and the Public Works
Director, then parking in -lieu fees shall be accepted for a deficit of one (1) parking space.
4. The Wienerschnitzel complex shall be expanded in substantial compliance with plans
prepared for the Bayview Investment Group, titled " Wienerschnitzel", prepared by Keystone
Architecture Interior Planning, last dated November 16, 2000, consisting of eight (8) sheets,
as marked Exhibit "A" and on file in the office of the City of Alameda Planning Department,
subject to the following conditions:
5. The final plans, submitted for the Building Permit shall include the following elements to
be approved to the satisfaction of the Planning Director:
a. An amended color board and illustration shall be provided to the satisfaction of the
Planning Director. The color board amendments shall show the following:
The color and material of the proposed awnings.
The color and trim of the building complex.
3. Tile (instead of brick) shall be used along the lower course of the buildings'
facade. This tile course shall extend along the entire frontage of the buildings
and any barriers (including the barrier for the outdoor dining area) on the
Webster Street frontage and the Pacific Avenue frontage.
Landscape /irrigation and lighting plans shall be submitted. Parking lot
landscaping shall include trees at a ratio of one tree for every four parking
spaces or four (4) trees. An additional three (3) shall also be added in the
larger landscaped area, for a total of seven (7) trees.
5. An eight -foot high sound -wall at the property line, between both adjacent
residential properties.
6. Awnings shall be installed as part of the final design along the facade of both
street frontages.
7. A convex minor and warning light system for the exit driveway onto Webster
Street.
7
b. A Sign Permit application shall be submitted to the satisfaction of the Planning
Director.
c. An amended site plan showing the location of the required bicycle racks.
d. Windows in the patio area shall have a multiple track system or hardware acceptable
to the Planning Director which shall allow the windows to be easily opened to a
minimum of fifty percent of the window area onto the street frontage and the parking
area.
e. The door from the Wienerschnitzel building to the patio area shall be retained and
this door, the door from the other commercial suite (i.e., Double - Rainbow), and the
door from the patio to the rear parking lot shall remain open and unlocked throughout
the business hours of both businesses. All doors shall be designed to enter and exit
from both sides.
f. An amended landscaping and irrigation plan shall be submitted to show the
installation of the 4 trees, with irrigation, in the patio area.
g.
A detailed plan of the drive - through window and all external support elements (i.e.,
menu board, order board and public address system shall be provided, subject to the
satisfaction of the Planning Director. Only one free standing sign shall be permitted
per lot. The public address system shall incorporate an Automatic Volume Control
Module as defined in the May 12, 2000 correspondence from Downing Sound &
Communications, Inc., contained in the Addendum to the Regular Agenda Item #5-
A.
The facade at the driveway exit on Webster Street shall be minimized and/or adjusted
to maximize auto/pedestrian visibility at this exit to the satisfaction of the Planning
Director and the City Engineer.
6. Sign permit approval by the Planning Department is required for all proposed signage. No
signage shall be placed on the site, building, and windows which is not permitted by an
approved sign permit.
7 All windows especially windows fronting Webster Street and Pacific Avenue shall remain
unobstructed by any signage not approved by the City Sign Permit process. Banners, flags,
and grand opening signs shall be prohibited unless approved by the City.
8. A cooking exhaust odor reduction scrubber shall be installed to the satisfaction of the
Planning Director and the County Health Department. This scrubbing system shall be in use
for all cooking exhaust from the restaurant during all hours of operation.
8
TRANSPORTATION FEE
9. The property owner shall contribute an amount specified by the City Engineer, not to exceed
an annual fee of $0.013 per square foot of building area or $50 per employee, whichever is
greater, as a pro -rata share of BART Shuttle service provided by AC Transit.
10. Prior to the issuance of the Building Permit for the site, the applicant shall be required to
provide a pro rata payment of traffic mitigation fees to the satisfaction of the City Engineer.
The Central Peimits Office shall accept the payment and advise the Planning Department
once the payment has been received.
BICYCLE FACILITIES
11. The property owner /applicant shall provide a bicycle rack for at Least four employees.
Bicycle facilities shall be installed in locations convenient to the building access points and
acceptable to the City Engineer.
TRUCK ROUTES
12. All truck deliveries to the proposed facility must remain on the established truck routes and
shall not occur earlier than 7:00 a.m. nor later than 10:00 p.m..
URBAN RUNOFF
13. The project must conform with the City's Urban Runoff Program. The final development
plan must incorporate long term storm water pollution prevention controls to the satisfaction
of the City Engineer.
GEOTECHNICAL REPORT
14. A geotechnical report, by a registered geotechnical engineer shall be reflected in the final
development plans. The report's findings and recommendations shall be to the satisfaction
of the City Engineer.
15. Improvement plans must show all proposed utilities, including pipe sizes, slopes, elevations,
etc. to the satisfaction of the City Engineer.
WASTE MANAGEMENT
16. The property owner /applicant shall incorporate all applicable standard conditions for Waste
Management and Recycling Functions into the final design subject to approval of the City
Engineer. This shall also include procedures for the disposal of contaminated soil and
petroleum tanks found on the site.
9
STREET FRONTAGE IMPROVEMENTS
17. The final improvement plan shall include details on the reconstruction and replacement of
all frontage improvements (i.e., curb, gutter, and sidewalk), pursuant to City standards and
to the satisfaction of the City Engineer. This shall include but not be limited to the removal
of the utility pole in the Pacific Avenue right -of -way and undergrounding the respective
service to the satisfaction of the City Engineer.
AFFORDABLE HOUSING FEE
18. The applicant shall meet the following requirements of Alameda Municipal Code Section
27 -1 ( "Affordable Housing Unit/Fee Requirements "):
a. Prior to the issuance of a Building Permit, the applicant shall prepare an Affordable
Housing Unit/Fee Plan for review by the City Manager's designee, the Housing
Development Manager.
b. Prior to the issuance of a Certificate of Occupancy, the applicant shall pay the
required Affordable Housing Fee, or provide the necessary housing units, as
calculated in the approved Plan.
DEED RESTRICTION
19. Prior to Final Design Review approval for the issuance of the Building Permit for the revised
project, the applicant/property owner shall file a deed restriction with the Alameda County
Recorder's Office which shall note the required installation of the door from the
Wienerschnitzel restaurant to the common patio area and the maintenance of this door and
the door from the patio area to the parking lot to be left unlocked and open at all times
throughout the business hours of both businesses. This deed restriction shall be prepared to
the satisfaction of the Planning Director.
VESTING
20. Design approval is valid for six months after the date of this approval. Final Design Review
approval shall be obtained prior to August 20, 2001, unless the applicant applies for and is
granted a six (6) month extension by Design Review Staff prior to said expiration. Only one
(1) extension may be granted.
HOLD HARMLESS
21. The City of Alameda requires that the applicant, or its successors in interest, defend,
indemnify, and hold harmless the City of Alameda or its agents, officers, and employees
from any claim, action, or proceeding against the City or its agents, officers, and employees
to attack, set aside, void, or annul, an approval of the City concerning this Variance and
Major Design approval, which action is brought within the time period provide for in
10
Government Code Section 66499.37. The City of Alameda shall promptly notify the
applicant of any claim, action or proceeding and the City shall cooperate fully in the defense.
If the City fails to promptly notify the applicant of any claim, action, or proceeding, or if the
City fails to cooperate fully in the defense, the applicant shall not hereafter be responsible
to defend, indemnify, or hold harmless the City.
ACKNOWLEDGMENT OF CONDITIONS
22. The applicant/property owner shall acknowledge in writing all of the conditions of approval
and must accept this permit subject to those conditions and with full awareness of the
applicable provisions of Chapter 30 of the Alameda Municipal Code in order for this
Variance and Major Design Review to be exercised.
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 or final action on any appeals 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 the
requirements of Section 66020, the applicant will be legally barred from later challenging such fees
or exactions.
11
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 a regular meeting assembled on the
20th day of February, 2001, by the following vote to wit:
AYES:
NOES: Councilmembers Daysog and Kerr - 2.
Councilmembers DeWitt, Johnson and Mayor Appezzato -
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this
21st day of February, 2001.
Diane Felsch, City Clerk
City of Alameda