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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. UMiGINAL 1V -X\ 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. PAGE- 2 - 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 PAGE- 3 -