2121 san pablo avenue - berkeley, california...2010/04/08 · 2121 san apblo avenue zoning...

$: 2121 San Pablo Avenue - Berkeley, California...2010/04/08 · 2121 SAN APBLO AVENUE ZONING ADJUSTMENTS BOARD Page 2 of 16 April 8, 2010 File: G:\LANDUSE\Projects by Address\San Pablo\2121\UP$
Z O N I N G

A D J U S T M E N T S

B O A R D

S t a f f R e p o r t

2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420

E-mail: [email protected]

FOR BOARD ACTION APRIL 8, 2010

2121 San Pablo Avenue

Use Permit # 10-10000011 to establish a full-service restaurant and bakery that serves beer and wine with meals and offers incidental retail food, beer and wine sales and incidental catering and wholesale of pastries with daily operating hours of 6 a.m. to midnight.

I. Application Basics

A. Zoning Permits Required:

Use Permit to establish a full-service restaurant of more than 2,500 sq. ft., under BMC Section 23E.64.030;

Use Permit to establish beer and wine service with food, under BMC Section 23E.16.040 and Section 23E.64.030;

Use Permit to establish beer and wine retail sales, under BMC Section 23E.16.040 and Section 23E.64.030;

Administrative Use Permit to waive five required off-street parking spaces, under BMC Section 23E.28.140.B

Administrative Use Permit to establish sidewalk seating, under BMC Section 23E.24.010; and

Administrative Use Permit to establish hours of operation of 6 a.m. to midnight within the University and San Pablo commercial node, under BMC Section 23E.64.060.A.

B. CEQA Determination: Categorically exempt under Section 15303 (c) of the California Environmental Quality Act (CEQA) Guidelines (“Conversion of Small Structures”)

C. Parties Involved: Applicant- Anja Voth, 1929 8th Street, Berkeley CA, 94710

Property Owner- Bruce and John Gordon, 2091 Rose Street, Berkeley CA, 94709

2121 SAN APBLO AVENUE ZONING ADJUSTMENTS BOARD Page 2 of 16 April 8, 2010

File: G:\LANDUSE\Projects by Address\San Pablo\2121\UP 10-10000011\Working\ZAB Staff Report 2121 San Pablo 4-8-10.docx

Figure 1: Vicinity Map

Subject Site- 2121 San Pablo Avenue

ZONING ADJUSTMENTS BOARD 2121 SAN PABLO AVENUE April 8, 2010 Page 3 of 16


Figure 2: Site Plan – Original Proposal



Figure 3: Floor Plan

Seating Area for 85 Patrons

Approximately 900 sq. ft.

Kitchen and food

preparation area.

Four bathrooms,

Two ADA

accessible

Incidental food, beer and

wine display area. 165 sq. ft.

Bakery

Existing

Service Door

Cowper Street

San

Pab

lo A

ven

ue



Figure 4: Revised Sidewalk Seating Plan

Figure 5: 1000 Foot Vicinity Alcohol Map of ABC License Types

Four tables, two chairs

per table for a total of

sidewalk seating for eight.

Six-foot wide

clear path of

travel



Other Alcohol Outlets within 1000 Feet Type of Alcohol sales or Service

Rice and Spice Beer and Wine with food service

Siam Cuisine Beer and Wine with food service

Temple Bar Beer and Wine with food service

Chaat and Curries Beer and Wine with food service

Local 123 Beer and Wine with food service

Lanesplitters Beer and Wine with food service

Priya Restaurant Beer and Wine with food service

Temari Beer and Wine with food service

Longs Drugs/ .99 Store Off-Site Beer and Wine

Mi Ranchero Market Off-Site Beer and Wine

Berkeley Bait and Tackle Off-Site Beer and Wine

St. Helena Liquors Off-Site General Sales

Acme Bar On-Site General Service

Table 1: Land Use Information

Site



Location Existing Use Zoning District

General Plan Designation

Subject Property Retail (Previously Metro Lighting) C-W Boulevard Commercial

Surrounding Properties

North Hardware Store, Vacant Lot, Acme Bar C-W Boulevard Commercial

South Repair Garages C-W Boulevard Commercial

East Light manufacturing (Previously Metro Lighting); Residential Units beyond

C-W/R-2

Boulevard Commercial Medium Density Residential

West U-Haul Rental Center C-W Boulevard Commercial

Table 2: Special Characteristics Characteristic Applies

to Project?

Explanation

Alcohol Sales/Service Yes Beer and wine service with restaurant use and incidental retail beer and wine sales for off-site consumption. The applicant is applying for a Type 41, beer and wine license through the ABC.

Environmental Management Area

No

Construction involving underground excavation or dewatering may raise health and environmental concerns. However, the proposed project does not involve extensive excavation. Only interior remodels are proposed.

Table 3: Project Chronology Date Action

January 25, 2010 Application submitted

February 25, 2010 Application deemed complete

March 25, 2010 Public hearing notices mailed/posted

April 8, 2010 ZAB hearing

April 26, 2010 PSA deadline1

1. Project must be approved or denied within 60 days after being determined to be exempt from CEQA, or 60 days after adoption of a negative declaration, or 180 days after adoption of an EIR (Govt. Code Section 65950).

Table 4: Development Standards



Standard BMC Sections 23E.64.070-080

Existing Addition/ (Reduction)

Proposed Total

Permitted/ Required

Lot Area (sq. ft.) 8,005 No Change 8,005 N/A

Gross Floor Area (sq. ft.) 3,512 No Change 3,512 N/A

Parking Automobile 0 No change 0 12 (5 new off-street spaces required with the proposed change of use from legal non-conforming retail

to food service)

Bicycle 0 +6 6 0

II. Project Setting

A. Neighborhood/Area Description:

The subject site is located on the northeast corner of San Pablo Avenue and Cowper Street, two blocks south of University and within the San Pablo and University node of the West Berkeley commercial area. There is a variety of commercial uses within the vicinity on San Pablo Avenue, including food service, retail, household and personal services and automotive repair. The uses to the east of the subject property on Cowper Street are primarily residential. The subject site abuts an R-2 Zone on the east side of the property. To the west across San Pablo Avenue is a U-Haul truck rental center.

B. Site Conditions:

The site contains a one-story commercial building that occupies the entire lot. The building contains three commercial tenant spaces. One of the existing tenant spaces is occupied by a retail hardware store (2119 San Pablo Ave.) and the other two spaces, 2121 San Pablo Ave. and 1101 Cowper Street, were previously occupied by Metro Lighting. Metro Lighting used 2121 San Pablo as their retail showroom and 1101 Cowper as a space to manufacture and assemble their products. The subject commercial space is approximately 3,512 sq. ft., containing 2,938 sq. ft. of floor area on the ground floor and a 574 sq. ft. mezzanine level, which has previously been used as an office and storage space for the commercial space below.

III. Project Description The applicant is proposing to establish a restaurant and bakery with beer and wine service, incidental retail sales of specialty food, incidental retail sales of specialty beers and wines for off-site consumption, incidental wholesale and catering of pastries, sidewalk seating, and hours of operation from 6 a.m. to 10 p.m. Sunday through Thursday and 6 a.m. to 11 p.m. Friday and Saturday (proposed hours were 6 a.m. to midnight, but have since been revised as noted). The proposed project requires a Use Permit to allow a full service restaurant, a Use Permit for alcohol sales and service, an Administrative Use Permit to waive five new off-street parking spaces that are required because of the change in use from retail to food service, an Administrative Use Permit to



allow for extended hours of operation within a node, and an Administrative Use Permit to establish sidewalk seating. The applicant has described the project as a bakery and restaurant that would primarily serve the residents of the neighborhood and offer patrons a full-service and homely dining experience. The applicant has applied for a Type 41 Alcohol Beverage License from the California Department of Alcoholic Beverage Control (ABC), which authorizes the sale of beer and wine for consumption on the premises in a restaurant setting as well as incidental retail sale of beer and wine for off-site consumption.

IV. Community Discussion A. Neighbor/Community Concerns:

Staff has received one letter of concern from the neighbors at 1111 Cowper Street, dated 3/29/2010 (see attachment # 8). The letter outlines several concerns including: 1) the sale of beer and wine for off-site consumption (neighbors support beer and wine on-site with meals), 2) hour of operation, neighbors believe that a 10 p.m. closing time would be more appropriate for the area, 3) the sidewalk seating plan relating to a clear path of travel and potential impacts relating to litter and noise, 4) pickup and delivery trucks on Cowper Street, and 5) potential odors from the restaurant and bakery. Staff has forwarded these concerns to the applicant and received a response letter (see attachment #8). Staff has analyzed the concerns from the neighbor and the responses in the letter from the applicant and provides staff analysis in Section V. Issues and Analysis below.

B. Committee Review: There are no exterior changes to the building proposed in this application and thus, it is not subject to review by any other City board, commission or committee. Future façade upgrades and new signage will be subject to Design Review.

V. Issues and Analysis A. Key Issues:

1. Full Service Restaurant: The proposed full service restaurant use is an allowed use

in the C-W district, subject to the approval of a Use Permit (Zoning Ordinance 23E.64.030). The proposed project will establish a full service restaurant in an existing ground floor commercial space, which will enhance the pedestrian oriented activity within the University and San Pablo node. The menu will consist of traditional North German fare as well as pastries made fresh in the on-site bakery (See applicant statement in attachment # 5 for more detail). Consistent with the definition for Full Service Restaurants (Zoning Ordinance Chapter 23F.04) the proposed project will primarily serve food for immediate consumption on the premises, with payment after consumption and table service by wait staff.



Establishing a restaurant, bakery and catering business within 200 feet of the residential area to the east would be compatible with the character of the local community, which is commercial as well as residential. Further, the food service would not adversely affect the adjacent residences because the business would not operate past 10 p.m. Sunday through Thursday nor past 11 p.m. on Friday and Saturday, would keep trash within the building, and would serve the local neighborhood.

Interior remodel work will be completed to create a seating area, kitchen, scullery, baking area, food preparation/clean-up/storage room, small office and an additional three restrooms (four restrooms total), subject to building department approval and permits.

2. Alcohol Service and Retail Sales: The service of beer and wine is allowed in the C-

W district, subject to the approval of a Use Permit (Zoning Ordinance Section 23E.64.030). The applicant intends for the establishment to operate as a restaurant, with the primary purpose of serving food with beer and wine complementary to the food service. The applicant has also applied to sell retail beer and wine for off-site consumption, which would serve as an incidental use to the main food service use. The Zoning Ordinance describes an incidental use as: “A secondary use of a lot and/or building. An Incidental Use shall not exceed twenty-five percent (25%) of the floor area of the primary use, and if it consists of the commercial sales of a different line of products or services than the primary use, such incidental use may not generate gross receipts in excess of thirty-three percent (33%) of the gross receipts generated by the primary Use”. (Section 23F.04 Definitions, Use, Incidental).

In this case the total sales of retail beer and wine for off-site consumption would account for approximately 2-3 % of the sales and approximately 5% of the total floor area.

The applicant has applied for a Type 41 Alcohol Beverage License from the California Department of Alcoholic Beverage Control (ABC), which authorizes the sale of beer and wine for consumption on the premises in a restaurant setting as well as retail sales for off-site consumption. Type 41 establishments must operate and maintain the licensed premises as a bona fide eating place1 and must make actual and substantial sales of meals, during the normal meal hours that they are open, at least five days a week. A Type 41 Alcohol Beverage License allows for both on site service as well as retail sales for off-site consumption. Alcoholic beverage service is also regulated by Zoning Ordinance Section 23E.16.040. This section requires special findings if an existing establishment has

1 Licensed premises that are maintained in good faith and used for the regular service of meals to patrons. The premises must have suitable

kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day.



an ABC license of the same type, other than alcohol service incidental to food service, within a 1,000-foot radius of the project site. There are 13 establishments within a 1,000-foot radius of the project site that either sell retail beer and wine or serve beer or beer and wine under a Type 40,2 41 or 423 ABC license (see map above). Of these 13 establishments, only four sell retail beer and wine for off-site consumption. Per Zoning Ordinance Section 23E.16.040.B.2, the following findings of “Public Convenience or Necessity” can be made for the retail sales of beer and wine as an incidental use at the restaurant. Beer and wine service with meals is not subject to findings of “Public Convenience or Necessity”. a. The proposed project will promote the City’s economic health by contributing to

the draw/attraction of the San Pablo and University Avenue node. The project will attract a variety of customers and will serve as a higher-end restaurant with specialty beer and wines. The applicant intends to purchase locally produced products, helping to support the City and region’s economy. The project will promote the West Berkeley Plan (area plan) policies which encourage cultural and entertainment uses and restaurants.

b. The economic benefits associated with retail sales of beer and wine at the

establishment while small, 2-3% according to the applicant, are important to encourage the small retail food component of the business. In addition, in order to be competitive with other restaurants which have a similar cultural theme to the business model, such as Poulet at 1685 Shattuck Avenue and The Spanish Table at 1814 San Pablo Avenue, the restaurant would benefit from offering retail sales of their specialty beers and wines.

c. The applicant has not operated a licensed establishment which has been the

subject of verified complaints or violations regarding alcohol, public safety or nuisance statutes or regulations. The attached conditions of approval for the proposed project provide for the ZAB to modify or revoke this use permit upon finding that the maintenance or operation of the proposed establishment violates any of the conditions of approval or is detrimental to persons residing or working in the neighborhood, or to the general welfare of the City.

d. The proposed establishment is not located within 1,000 feet of any Berkeley

Unified School District (BUSD) school. Although the proposed location is within 1,000 feet of a park located at 2121 Tenth Street, this park is several blocks away from the restaurant and the limited, high end specialty beer and wine sales will not likely be purchased and consumed at this park.

e. The Police Department has been notified of the proposed project and was still

analyzing the potential impacts at the time this staff report was completed. In

2 Type 40 license (On Sale Beer- Bar, Tavern)

3 Type 42 license (On Sale Beer and Wine- Public Premises- Bar, Tavern)



verbal communications with the Police Department, staff was told that there was little to no concern with the proposed service of beer and wine with meals and that given the nature of the retail sales, specialty beers and wines with limited shelf space, that the Police Department was not likely oppose the application. Staff will update the ZAB with the outcome of the Police Department’s review at the public hearing.

Staff supports the approval of the use permit since the customers would primarily consume the beer and wine in the restaurant with meals. Retail sales of specialty beers and wines for off-site consumption would constitute approximately 2% of the overall business and would be incidental to the main use.

3. Hours of Operation: Commercial uses within the C-W district are typically permitted

to operate between the hours of 7 a.m. and 10 p.m. (Zoning Ordinance Section 23E.64.060). However, within a node, uses may operate between 6 a.m. and 12 a.m. with an Administrative Use Permit. Initially, the applicant had proposed to have hours of operation from 6 a.m. to midnight daily, however after receiving a letter of concern from a neighbor on Cowper Street, the applicant has agreed to revise their request. The applicant proposes to operate 6 a.m. to 10 p.m. Sunday through Thursday and 6 a.m. to 11 p.m. Friday and Saturday. The 6 a.m. opening time would allow the bakery to service the community early in the morning and the extended closing time of 11 p.m. on Friday and Saturday would allow for the establishment to accommodate patrons seeking a later dinner. Considering the proposed site is within a node, which encourages pedestrian oriented commercial activity, the hours proposed by the applicant are consistent with other similar venues in the West Berkeley Commercial District and would provide an amenity to the surrounding neighborhood.

4. Sidewalk Seating: The applicant has proposed to establish sidewalk seating in front of the building on San Pablo Avenue. Sidewalk seating is allowed with an Administrative Use Permit under section 23E.24.010. Initially, the applicant had proposed to establish sidewalk seating for 17 patrons in front of the building. However, given zoning and public works requirements the applicant has submitted a revised sidewalk seating plan with a total of four tables and eight seats (See attachment sidewalk seating plan in figure 4 above). The sidewalk seating would maintain a 6’ wide clear path of travel and the applicant would obtain one million dollars of liability insurance as required by the Zoning Ordinance. Sidewalk seating in front of the business would provide an amenity for patrons and create a connection between the business and the public right-of-way, thereby enhancing activity within the node. Because the seating would be on San Pablo Avenue which is technically a state highway, the proposed sidewalk seating would also have to be approved by Caltans before final approval. Additionally, the sidewalk seating would be subject to the conditions of approval outlined in Attachment #1, which includes that no alcohol service may occur at the sidewalk seating tables.



5. Delivery and Pickup Trucks: Staff has received a letter from a neighbor on Cowper Street who is concerned that the restaurant will have many deliveries and that the deliveries will negatively impact the residential character of the block if deliveries are allowed on Cowper Street. While this is a legitimate concern, it should be noted that the previous use at this site, Metro Lighting retail, assembly and manufacturing, did have deliveries to the existing service door on Cowper Street (See Figure 3 above). The applicant has indicated that it is infeasible to have deliveries come through or trash go out of the front doors, but that she would work with the delivery trucks to arrange a practice of parking on San Pablo Avenue when feasible. Given that San Pablo Avenue is a main thoroughfare and the likely route that delivery truck will take, having delivery trucks park on San Pablo Avenue and cart items to the side service door on Cowper seems feasible and does not seem to create a unreasonable service pattern that would be detrimental to the residential neighborhood to the east on Cowper Street. It should also be noted that of many of the commercial uses on San Pablo Avenue, many have side service doors on the side streets that are commonly used as the main delivery point. (See response from applicant relating to deliveries in Attachment #9)

6. Incidental Retail, Catering and Wholesale of Pastries: The applicant has applied to sell incidental retail food for off-site consumption, which will total approximately 10-12% of the business as well as establish catering and wholesale sales of pastries, which would account for approximately 5% of the business. The retail food display area will constitute approximately 165 sq. ft. of the total floor area and will allow patrons to purchase specialty German food products and pre-prepared dishes to carryout and cook at home. The catering and wholesale sales of pastries will be a very small part of the business and the applicant intends to make infrequent deliveries using her personal vehicle. The applicant has no intention of maintaining a commercial vehicle for the delivery of wholesale or catered pastries.

7. Odors from the Proposed Restaurant and Bakery Use: Staff received a letter from a neighbor who indicated that they were concerned with the potential odors coming from the restaurant and bakery (See section IV.A above and Attachment # 9). Because the application proposes a change of use from retail to food service, the applicant will be required to install the appropriate cooking hood and odor mitigation appliances as required per the California Building Code during the tenant improvement process after a Use Permit is issued. According to the applicant statement (Attachment #5) the cooking on-site will not pose unreasonable odors because the business does not involve frying, grilling or curing.

8. Parking: As noted above, the applicant has asked to waive 5 parking spaces – the

difference between the 7 required for general commercial space and 12 required for food service. The applicant would offset the reduction in vehicle parking by offering employees financial incentives to use public transportation and by installing three bicycle racks to create another alternative to vehicle travel.



The Zoning Adjustments Board must make two findings (one from Conditions 1-4 and one from Conditions 5 & 6, below) under Berkeley Municipal Code Section 23E.28.140.B, adopted in 2005 to allow increased flexibility for the parking requirements pertaining to commercial development.

B. To approve any reduction of the off-street parking spaces under Section

23E.28.130, or under other sections that refer to this section, the Zoning Officer

or Zoning Adjustments Board must find that the reduction will not substantially

reduce the availability of on-street parking in the vicinity of the use. The

Zoning Officer or Board must find that at least one of each of the two

groups of conditions below apply:

[Group A]

1. The use is located one-third of a mile or less from a Bay Area Rapid Transit (BART) station, intercity rail station or rapid bus transit stops; or

2. The use is located one-quarter of a mile or less from a publicly accessible parking facility, the use of which is not limited to a specific business or activity during the new use’s peak parking demand; or

3. A parking survey conducted under procedures set forth by the Planning Department finds that within 500 feet or less of the use, on the non-residential street where the use is located, at least two times the number of spaces requested for reduction are available through on-street parking spaces for at least two of the four hours of the new use’s peak parking demand; or

4. The use includes one of the following neighborhood-serving uses: Retail Products Store(s), Food Service Establishments, and/or Personal/Household Service(s). These uses include, but are not limited to: Dry Cleaning and Laundry Agents, Drug Stores, Food Products Stores, Household Items Repair Shops, and/or Laundromats; and

[Group B]

5. The parking requirement modification will meet the purposes of the district related to improvement and support for alternative transportation, pedestrian improvements and activity, or similar policies; or

6. There are other factors, such as alternative transportation demand management strategies or policies in place, which will reduce the parking demand generated by the use.

Staff recommends that this reduction be granted, since the project meets both Conditions 3 and 4 (although meeting one condition would be sufficient) and Condition 5:



Support for Condition 3, Parking Survey:

A parking study conducted by the applicant under the procedures set forth by the Planning Department indicates that approximately 50 percent of the on-street parking spaces within 500 feet of the proposed project are available for at least two hours of the four hours of the restaurant’s peak parking demand between 6 p.m. and 8 p.m.

Support for Condition 4, Neighborhood-Serving Use:

The project entails establishing a restaurant that would serve the neighborhood and enhance the economic and social vitality of San Pablo Avenue.

The project would encourage the use of public transit because the restaurant would establish bicycle parking and would be located within one block of three AC transit bus stops on San Pablo Avenue.

Support for Condition 5, Meets Purposes of the District/Trip Reduction Strategies:

The reduction in the required number of parking spaces for the restaurant would be consistent with the purposes of the C-1 zoning district because the location provides easy access for customers to walk, ride bicycles, or use public transportation, which would increase pedestrian oriented activity along San Pablo Avenue.

The reduction in the required number of parking spaces for the restaurant would be offset by instituting incentives for restaurant employees and customers to use public transportation and bicycles. As required by the conditions of approval, the incentives would include a commuter check program based on the number of required parking spaces waived, and the installation of a new bicycle rack in front of the restaurant. Commuter check is a national program that companies use to take advantage of Federal tax incentives to subsidize their employees’ public transit costs.

B. General and Area Plan Consistency: General Plan Policy Analysis: The 2002 General Plan contains several policies applicable to the project, including the following:

1. General Plan Policy LU-27–Avenue Commercial Areas: Maintain and improve

Avenue Commercial areas… as pedestrian-friendly, visually attractive areas of pedestrian scale and ensure that Avenue areas fully serve neighborhood needs as well as a broader spectrum of needs.

Staff Analysis: The project would advance these policies by establishing a full-service restaurant that would diversify the range of community-oriented commercial activity and thereby provide an appealing pedestrian experience. The application would establish a restaurant in an existing vacant commercial building, thereby



maintaining the context of the building as a commercial space and would enhance the activity within the University and San Pablo commercial node.

VI. Recommendation

Because of the project’s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, Staff recommends that the Zoning Adjustments Board:

A. APPROVE Use Permit # 10-10000011 pursuant to Section 23B.32.040, Section

23E.24.010.A, 23E.64.060.A, Section 23E.64.090.B, Section 23E.64.090.C, Section 23E.64.090.H, Section 23E.28.140.B.4 and Section 23E.28.140.B.5 and subject to the attached Findings and Conditions (see Attachment 1).

Attachments:

1. Findings and Conditions 2. Project Plans, received 1/25/2010 3. Photos 4. Notice of Public Hearing 5. Applicant Statement 6. Comments from Police (To be presented to the ZAB as supplemental information at the hearing). 7. Parking Survey 8. Revised Sidewalk Seating Plans 9. Correspondence Received Staff Planner: Nathan Dahl, [email protected], (510) 981-7410

2121 san pablo avenue - berkeley, california...2010/04/08 · 2121 san apblo avenue zoning...

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