Agenda

Zoning Adjustments Board 
Thursday, March 11, 2010
Special Meeting – 6:00 PM
Regular Meeting – 7:00 PM
City Council Chambers, 2134 Martin Luther King Junior Way. 2nd Floor
Berkeley, CA  94704  (Wheelchair Accessible)

Public Testimony Guidelines
The Board Chairperson may limit the number of speakers and the length of time allowed to each speaker. 
To speak at a public hearing, complete a speaker card and submit to Planning Staff (1) as early as possible
at the meeting, or (2) at the Permit Service Center, 2120 Milvia Street, before 5:00 PM on the dayof the
hearing.  At the start of the meeting the Board may rearrange the agenda or place additional agendized items
on the Consent Calendar, so it is important to submit speaker cards at the start of the meeting to avoid losing
the chance to speak to an item.

The Board encourages the public to submit comments in writing or by email, in advance of the meeting.  See
Correspondence and Notice of Decision Requests at the end of this Agenda for procedures.

Planning and Development Department, Land Use Division

________________________________________________________________________________________

6:00 PM – Special Meeting

Roll Call:         Deborah Matthews (Chair), appointed by Mayor Bates
                          Robert Allen (Vice-Chair), appointed by Councilmember Wengraf
                          Michael Alvarez Cohen, appointed by Councilmember Wozniak
                          Jesse Anthony, appointed by Councilmember Anderson
                          Danfeng Koon, appointed by Councilmember Worthington
                          Ryan Lau, appointed by Councilmember Moore
                          Elisa Mikiten, appointed by Councilmember Maio
                          Sara Shumer, appointed by Councilmember Arreguin  
                          George Williams, appointed by Councilmember Capitellli

Workshop / Training Session: The Board will have a discussion with the City Attorney and
Planning Staff regarding Ex Parte Communications, Conflict of Interest Considerations,
Findings, and Other Topics of General Interest Related to the Conduct of Board Meetings

Public Comment

Adjourn

7:00 PM – Regular Meeting

Roll Call:        Deborah Matthews (Chair), appointed by Mayor Bates
                         Robert Allen (Vice-Chair), appointed by Councilmember Wengraf
                         Michael Alvarez Cohen, appointed by Councilmember Wozniak
                         Jesse Anthony, appointed by Councilmember Anderson
                         Danfeng Koon, appointed by Councilmember Worthington
                         Ryan Lau, appointed by Councilmember Moore
                         Elisa Mikiten, appointed by Councilmember Maio
                         Sara Shumer, appointed by Councilmember Arreguin  
                         George Williams,
appointed by Councilmember Capitellli

Ex Parte Communication Disclosures
In the context of adjudicative matters that come before the ZAB, ex parte communications are
those which occur outside the formal hearing process.  ZAB members should avoid ex-parte
contacts on matters pending before the ZAB as much as possible, as they may represent, or be
perceived to represent, the receipt of evidence that can unfairly influence a Board member’s
decision on a matter before the Board.  If such contacts do occur, they must be placed in the
record and disclosed to all interested parties sufficiently in advance of the decision to allow
rebuttal. 

Public Comment 
The Board invites comment on topics not otherwise on the agenda.  Each Speaker is limited to a
maximum of three minutes.

Agenda Changes
The Board Chair may reorder the agenda at the beginning of the meeting.

Consent Calendar: 
The Consent Calendar allows the Board to take action with no discussion, on projects to which no one objects.  The Agenda includes three types of Consent Calendar items:  (1) Approval of
previous meeting minutes; (2) Modifications of existing Use Permits (which have not been noticed
for public hearings); (3) Items being continued to another meeting (Board action has been
postponed to another meeting).  The Board Chairperson will announce items for the Consent
Calendar at 7:05 p.m.  The Board may place additional Agenda items on the Consent Calendar, if
no one present wishes to testify on an item.  Anyone present who wishes to speak on an item
should raise his or her hand and advise the Chairperson, and the item will be pulled from the
Consent Calendar.  Modification Projects may be discussed by the Board at this meeting or set for
a public hearing at a later meeting.  Items already noticed for a public hearing will be heard
following Continued Items, or, if necessary, posted for a public hearing at a subsequent meeting.

1.       Approval of Previous Meeting Minutes 
          Minutes from 02/25/10 meeting
                                                   Recommendation: APPROVE
 
2.       1421 Second Street
          Performance Report: Use Permit #06-10000045 – Pacific Steel Castings
          Owner/Operator/Representative: Christina Chan, 1333 Second Street, Berkeley, CA
                                                        Continued From:  February 11, 2010
                                                      Recommendation: CONTINUE TO APRIL 22, 2010

3.       7 Alamo Avenue 
         Use Permit #08-10000108 to construct a new, three-story, approximately 4,500-square-
          foot single family home with an average height of 30.5 feet and a maximum height of
          40.5 feet.
          Applicant: Daniel Frederick, Daniel Frederick Architecture, 1045 Keith Avenue,
          Berkeley, CA 94707
          (Zoning: R-1(H), Single-Family Residential / Hillside District; Planner: Leslie Mendez)
                                                       
 Continued From: NONE
                                                      Recommendation: CONTINUE OFF CALENDAR
 

4.      1006 Creston Road
           Appeal of Administrative Use Permit #09-20000034 to reconstruct a 2-story,
           approximately 3,100-sq. ft., fire-damaged residence as-of-right, to add approximately 
           1,800 sq. ft. of new floor area to the original building envelope, to include a new
           Accessory Dwelling Unit in the lower level of the building and roof deck atop.
           Applicant: Mark Anderson, AIA, of Anderson Anderson Architecture, 90 Tehama Street,
           San Francisco, CA 94105
           (Zoning: R-1(H), Single-Family Residential, Hillside Overlay; Planner: Fatema Crane)
                                                       Continued From: NONE
                                                     Recommendation: SET FOR HEARING ON APRIL 8, 2010

5.        2244 Dwight Way
           Appeal of Administrative Use Permit #09-20000078 to construct a 3-story, 1,661-sq. ft.
           addition at the rear of an existing 2,668- sq. ft., 2-story duplex.
           Applicant: Charles Huddleston, 1305 Boulevard Way, Walnut Creek
           (Zoning: R-4, Multifamily Residential District; Planner: Fatema Crane)
                                                      Continued From: NONE
                                                    Recommendation: SET FOR HEARING ON APRIL 8, 2010

Appeal of Administrative Use Permit/Staff Level Design Review:
 Appeals of Administrative Use Permit and Design Review applications are not subject to public
hearing and no public testimony will be taken at this time.  The Board may set the matter for public
hearing, or affirm the Zoning Officer’s or Design Review Secretary’s decision.

6.          778 Contra Costa Avenue
             Appeal of Administrative Use Permit #08-20000123
to construct an approximately
             1,449-square-foot addition, including a new third story at the front of the existing two-
             story dwelling, and construct new second and third story decks located at the rear of the
             dwelling.
             Applicant: Elizabeth Gannaway & Kourosh Ghassemi, 778 Contra Costa Ave., Berkeley, 
             CA 94707
             (Zoning: R-1(H), Single-Family Residential, Hillside Overlay District; Planner: Leslie
             Mendez)
                                                         Continued From: NONE
                                                       Recommendation: EITHER
 
                                                                                              1. APPROVE Administrative Use 
                                                                                                  Permit #08-10000123 pursuant to
                                                                                                  BMC Section 23B.32.040 with
                                                                                                  amendments to the plan specified
                                                                                                  by Condition #10 to eliminate the
                                                                                                  new third story and third story roof
                                                                                                  deck, but allow the construction
                                                                                                  of an approximately 305-square-
                                                                                                  foot, two-story addition located at
                                                                                                  the front of an existing residence
                                                                                                  and a new 261-square-foot second
                                                                                                  story deck located at the rear of the 
                                                                                                  dwelling. 
                                                                                         OR
                                                                                               2. DENY Administrative Use Permit
                                                                                                   #08-10000123 based on findings
                                                                                                   of detriment.

Continued Public Hearings: 

7.        2312 Telegraph Avenue      
     
     Variance / Use Permit #09-10000039 to establish beer and wine sales in an existing
           grocery store and delicatessen in a district where these sales are prohibited, and to
           extend the hours of operation for the store from 7 a. m. to 10 p. m. daily to 7 a. m. to 10
           p. m. Sunday through Friday and 7 a. m. to 11 p. m. on Saturdays
           Applicant: Fuad and Muna Ayyad for Samer Market, Inc., 2312 Telegraph Avenue,
           Berkeley
           (Zoning:  C-T, Telegraph Avenue Commercial; Planner:  Fatema Crane).
                                                     Continued From: February 11, 2010
                                                   Recommendation: EITHER
                                                                                        A. 1) DENY
the request for a
                                                                                        Variance and associated Use
                                                                                        Permit
to establish the sale of
                                                                                        beer and wine in the Telegraph
                                                                                        Avenue Commercial district; and 

                                                                                            2) APPROVE that aspect of Use
                                                                                            Permit #09-10000039
which will
                                                                                            modify Condition #13 of Use
                                                                                            Permit 07-10000026 to extend
                                                                                            the operating hours for the
                                                                                            existing store beyond those
                                                                                            hours previously established in
                                                                                            the Use Permit.
                                                                                 OR
                                                                                        B. APPROVE Variance and Use
                                                                                             Permit #09-100000039 to
                                                                                             establish alcoholic beverage
                                                                                             sales at the subject grocery and
                                                                                             take-out deli and establish
                                                                                             operating hours subject to the
                                                                                             Findings and Conditions of
                                                                                             Attachment 2, or Findings and
                                                                                             Conditions of Attachment 2 that 
                                                                                             have been modified by Board
                                                                                             action.
  

New Public Hearings: 

8.       1222 University 
          Use Permit Modification MODUP#10-70000004 to extend the allowable work hours
          during construction. The Berkeley Unified School District (BUSD) requests that Condition
          #14, imposed as part of Use Permit 09-20000036, be amended to conform to the usual
          ordinance-allowed hours of 7 am to 7 pm on weekdays and 9 am to 8 pm on weekends 
          and legal holidays.
          Applicant: Berkeley Unified School District, 1707 Russell Street, Berkeley
          (Zoning: C-1, General Commercial District; R-2 – Restricted Two-Family Residential
          District; R-2A – Restricted Multiple Family Residential District; Planner: Steven Buckley)
                                  Continued From: NONE
                                Recommendation: APPROVE Use Permit Modification #10-70000004
                                                                  pursuant to Zoning Ordinance Section 23B.56.020.C
                                                                  and subject to Findings and Conditions.

Additional Agenda Items:

A.       Information/Communication
B.       Business Meeting
C.       Chair’s Report
D.       Current Business/Committee Appointment
E.       Future Agenda Items
F.       Other Matters
G.       Adjourn

Correspondence and Notice of Decision Requests
• Communications to Berkeley boards, commissions or committees are public record and will
become part of the City’s electronic records, which are accessible through the City’s website. 
Please note: e-mail addresses, names, addresses, and other contact information are not
required, but if included in any communication to a City board, commission or
committee, will become part of the public record. 
If you do not want your e-mail address or
any other contact information to be made public, you may deliver communications via U.S. Postal
Service or in person to the secretary of the relevant board, commission or committee.  If you do
not want your contact information included in the public record, please do not include that
information in your communication.  Please contact the secretary to the relevant board, commission
or committee for further information.
• To distribute correspondence to Board members prior to the meeting date -- submit
comments by 12:00 noon, seven (7) days before the meeting.  Please provide 15 copies
of any correspondence with more than ten (10) pages.
• Correspondence received by the 5 pm Tuesday before the meeting will be posted on the ZAB
web site for review by the Board and public prior to the meeting. Correspondence received later,
and after the meeting, will be posted to the web site following the meeting.
• Any correspondence received after this deadline will be given to Board members on the meeting
date just prior to the meeting.
• Staff will not deliver to Board members any additional written (or e-mail) materials received after
12:00 noon on the day of the meeting. 
• Members of the public may submit written comments themselves early in the meeting.  To
distribute correspondence at the meeting, please provide 15 copies and submit to the Zoning
Adjustments Board Clerk just before or at the beginning of the meeting.
• Written comments or a request for a Notice of Decision should be directed to the ZAB Secretary
at:  Land Use Planning Division (Attn: Steven Buckley, ZAB Secretary), 2120 Milvia Street,
Berkeley, CA 94704 OR at zab@ci.berkeley.ca.us

Communication Access
To request a meeting agenda in large print, Braille, or on cassette, or to request a sign language
interpreter for the meeting, call the Current Planning Division at 981-7410 (voice) or 981-7474
(TDD); at least five (5) working days notice will ensure availability. 

Legal Notice Concerning Your Legal Rights
If you object to a decision by the Zoning Adjustments Board to approve or deny a use permit or
variance for a project, the following requirements and restrictions apply:
1. If you challenge the decision of the City in court, you may be limited to raising only those issues
you or someone else raised at the public hearing described in this notice, or in written
correspondence delivered to the Zoning Adjustments Board at, or prior to, the public hearing.
2. You must appeal to the City Council within fourteen (14) days after the Notice of Decision of the
action of the Zoning Adjustments Board is mailed.  It is your obligation to notify the Current
Planning Division in writing of your desire to receive a Notice of Decision when it is completed.
3. Pursuant to Code of Civil Procedure Section 1094.6(b), no lawsuit challenging a City Council
decision, as defined by Code of Civil Procedure Section 1094.6(e), regarding a use permit,
variance or other permit may be filed more than ninety (90) days after the date the decision
becomes final, as defined in Code of Civil Procedure Section 1094.6(b). Any lawsuit not filed
within that ninety (90) day period will be barred.
4. Pursuant to Government Code Section 65009(c)(1), no lawsuit challenging a City Council
decision, as defined by Code of Civil Procedure Section 1094.6(e), regarding a use permit,
variance or other permit may be filed more than ninety (90) days after the date the decision becomes
final, as defined in Code of Civil Procedure Section 1094.6(b).  Any lawsuit not filed within that ninety
(90) day period will be barred.
5. Pursuant to Government Code Section 66020(d)(1), notice is hereby given to the applicant that
the 90-day protest period for any fees, dedications, reservations, or other exactions included in any
permit approval begins upon final action by the City, and that any challenge must be filed within this
90-day period.
6. If you believe that this decision or any condition attached to it denies you any reasonable
economic use of the subject property, was not sufficiently related to a legitimate public purpose,
was not sufficiently proportional to any impact of the project, or for any other reason constitutes
a “taking” of property for public use without just compensation under the California or United States
Constitutions, the following requirements apply:
A. That this belief is a basis of your appeal.
B. Why you believe that the decision or condition constitutes a "taking" of property as set  forth
    above.
C. All evidence and argument in support of your belief that the decision or condition constitutes a
    “taking” as set forth above.
If you do not do so, you will waive any legal right to claim that your property has been taken, both before the
City Council and in court.