HomeMy WebLinkAboutCC Resolution 10421 (835 Fifth Ave Appeal)RESOLUTION NO. 10421
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
DENYING THE APPEAL AND UPHOLDING THE PLANNING COMMISSIONS
DECISION TO UPHOLD THE COMMUNITY DEVELOPMENT DIRECTOR'S
DETERMINATION REGARDING ANCILLARY RETAIL USE IN THE
FIFTH/MISSION RESIDENTIAL/ OFFICE DISTRICT AT 835 FIFTH AVENUE
AP 11-224-16
WHEREAS, on June 29, 1998 Brent Dickens submitted a request to the
Community Development Director for a zoning interpretation to allow ancillary
retail uses within an 8,940 square foot 2 -story office building at 835 Fifth Avenue in
the 5/M R/O zoning district; and
WHEREAS, on July 13,1998 upon review of City Records, including a
review of the Building, Planning and Business License records, the Community
Development Director determined that ancillary retail uses were not approved in
the building, such retail uses were not approved as a part of the use permit (UP 89-
53) approved for the Architecture and Planning firm offices within the 8,940
square foot building, and such retail uses are not permitted in the 5/M R/O
zoning district designation which applies to the site; and
WHEREAS, on March 12,1999 an appeal to the determination of the
Community Development Director was filed by the property owner, Clare
Hackett, as provided under zoning code Section 14.02.040(D); and
WHEREAS, the following arguments were presented in making the case for
the appeal:
1. The building has been Linder single ownership on a single parcel which
fronts on two streets and under two separate zoning districts. The Fourth
Street 4SRC zoning allows retail uses. Although the retail use addresses
were listed at the 854 to 866 Fourth Street building addresses, the subject
building has contained retail uses throughout the entire building extending
to Fifth Avenue in the 5/M R/O office zoning as a part of the Architecture
and Planning firm business. This is allowed at other adjacent retail stores,
such as Beverly's retail building which crosses the two zoning districts.
2. The City Building Department issued a Certificate of Use and
Occupancy for the Building for Occupancy Group B2 which covers
wholesale/retail and office uses.
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WHEREAS, the City Council certifies that the project is exempt from the
provisions of the California Environmental Quality Act (CEQA) pursuant to
CEQA Guidelines Section 15061(b)(3) -General Rule which states CEQA does not
apply to activities which do not have any impact on the environment; and
WHEREAS, on May 11, 1999, the San Rafael Planning Commission held a
duly noticed public hearing on the appeal and determined that the appeal was
without merit; and
WHEREAS, on May 13,1999 the appellant appealed the decision of the
Planning Commission; and
WHEREAS, on June 7,1999 the City Council held a duly noticed public
hearing and considered the appeal, accepting all oral and written public testimony
and the written report of the Planning Division staff.
NOW THEREFORE BE IT RESOLVED, that the City Council finds that the
appeal is without merit and makes the following findings denying the appeal and
upholding the Planning Commission's decision to uphold the Community
Development Director's determination that retail activities are not permitted at 835
Fifth Avenue:
1. The argument that the building has been under single ownership on a
single parcel which fronts on two streets and under two separate zoning
districts; that the Fourth Street 4SRC zoning allows retail uses; that
although the retail use addresses were listed at the 854 to 866 Fourth Street
building addresses, the subject building has contained retail uses
throughout the entire building extending to Fifth Avenue in the 5/M R/O
office zoning as a part of the Architecture and Planning firm business; that
this is allowed at other adjacent retail stores, such as Beverly's retail
building which crosses the two zoning districts is without merit based on
the following facts:
a) That a Use Permit was issued for the property in 1989 (UP 98-53) which
approved use of the 8,940 square foot building as a professional office
building with a condition (hh) that any changes to the approved use be
subject to zoning review and approval. Research of the City Planning,
Building and Business License records reveals no approvals of retail
space in the building.
b) The current 5/MR/O zoning was adopted for the site in 1996 and does
not allow retail uses in this location. Section 14.05.022 of the zoning
regulations table of permitted uses specifically states "(retail) uses (are)
allowed only on cross streets from "C" Street east between Fourth Street
and Fifth Avenue." The subject site is not located on such cross streets.
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2. The argument that the issuance of a certificate of occupancy by the City
Building Department for an occupancy group B2 which covers
wholesale/ retail and office uses is without merit based on the fact that the
issuance of an occupancy permit by the building department addresses the
buildings structural suitability for occupancy and does not affect the City's
land use policies and zoning designations for property which establish what
uses are allowed in certain zoning districts. The building department
occupancy permit covers a group of occupancy types that are similar in
terms of their building construction requirements for health and safety
purposes. The building department authorization is a ministerial action
which must be granted if certain technical requirements are met. The
zoning approvals require a discretionary approval which allows additional
restrictions to be placed on the use of a property.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, California,
hereby certify that the foregoing resolution was duly and regularly introduced and
adopted at a regular meeting of the City Council of said City held on the 7"' day of
June, 1999, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
JEANNE M. LEONCINI, City Clerk
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