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HomeMy WebLinkAboutCD 23 Baypoint Drive ResolutionRESOLUTION NO. 13539 A RESOLUTION OF THE CITY COUNCIL OF SAN RAFAEL UPHOLDING AN APPEAL (AP13-001) AND OVERTURNING THE FEBRUARY 26, 2013 PLANNING COMMISSION DECISION TO GRANT AN APPEAL (AP12-007) AND OVERTURN THE ZONING ADMINISTRATOR'S APPROVAL OF A USE PERMIT (UP12-022) ALLOWING THE OPERATION OF A LICENSED LARGE FAMILY DAY CARE (9-14 CHILDREN MAXIMUM) IN A TWO-STORY SINGLE FAMILY TOWNHOME; THEREFORE, THE USE PERMIT FOR A LARGE FAMILY DAY CARE AT 23 BAYPOINT DRIVE STANDS AS APPROVED WITH CONDITIONS (APN: 009-362-20) THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: WHEREAS, on July 9, 2012, Maria Ramirez, operator of Ramirez Day Care, and her daughter, Leticia Arvizu (acting as the project applicant) submitted a Use Permit application (UPI2- 022)to operate a licensed large family day care for 9-14 children in the two-story single family townhome at 23 Baypoint Drive; and WHEREAS, the proposed large family day care home was proposed to operate between the hours of 6:00 am to 6:00 pm, Monday through Friday; and WHEREAS, the proposed Use Permit application was reviewed by the Land Development, Traffic Engineering, Fire Prevention and Building Divisions of the City of San Rafael and was recommended for approval subject to conditions; and WHEREAS, upon review of the application, the project was determined to be exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 (Existing Facilities); and WHEREAS, the application was deemed complete for processing on August 9, 2012; and WHEREAS, on October 28, 2012, the Zoning Administrator (ZA) held a duly noticed public hearing on the proposed Use Permit, accepting all oral and written public testimony. Six members of the public were present at the hearing, raising a number of concerns and issues about the proposed day care use; and WHEREAS, following the closure of the public hearing, the ZA continued the matter to November 14, 2012 to allow neighbors an opportunity to visit the daycare and talk with the applicant; and WHEREAS, on November 14, 2012, the Zoning Administrator conducted the continued public hearing, accepting all oral and written public testimony. At the end of the hearing, the ZA conditionally approved the Use Permit (UP12-022) allowing the operation of a licensed large family day care for 9-14 children in the two-story single family townhome at 23 Baypoint Drive, finding that the proposed project was consistent with all Performance Standards pursuant to Zoning Ordinance Section 14.17040 (Performance Standards, Family Day Care Home, Large); and WHEREAS, notice of this decision, including transmittal of the meeting minutes and findings and conditions of approval were mailed and/or e-mailed to the applicant, the property owner, and all residents in attendance at the Zoning Administrator hearing; and WHEREAS, on November 21, 2012, Victoria Pollick (adjacent resident at 27 Baypoint Drive), filed a timely appeal (AP12-007)of the Zoning Administrator's conditional approval of Use Permit UPI 2-022, pursuant to Chapter 28 (Appeals) of the City's Zoning Ordinance, citing: 1) noise issues were not fully addressed; 2) noise and vibration are a problem because 23 Baypoint Drive and 27 Baypoint Drive share a common wall; 3) questions the applicant's ability to adhere to use permit conditions of approval because the current childcare is already operating with 9 children, which exceeds the limit allowed without an approved use permit; and 4) whether the operation has approval of the City of San Rafael Fire Department; and; WHEREAS, the project was scheduled and placed on the agenda for the January 29, 2013 Planning Commission meeting and at the time of the hearing, there were only 4 Commissioners in attendance (Commissioners Lubamersky, Paul, Schaefer and Robertson); and WHEREAS, Commissioner Schaefer recused himself from this item due to potential conflict of interest, leaving 3 Commissioners. This did not constitute a quorum and therefore the item could not be heard and the appeal was automatically continued to the next available Planning Commission meeting date (February 12, 2013); and WHEREAS, on February 12, 2013, the San Rafael Planning Commission held a duly - noticed public hearing to consider the Appeal (AP12-007), accepted and considered all oral and written public testimony and the written report of Community Development Department staff and closed said hearing on that date; and WHEREAS, on February 12, 2013, the majority of the Commission found that the appeal did have merit and the Commission was inclined to grant the appeal, thus overturning the Zoning Administrator's approval. However, given that the Draft Resolution before the Commission did not reflect their intention, the Commission could not take formal action that evening; and WHEREAS, on February 12, 2013, Commissioner Lubamersky moved and Commissioner Wise seconded to direct staff to prepare a revised Resolution granting the appeal and overrunning the ZA's approval and return to their next scheduled meeting. This motion was approved 5-0-1 (with Commissioner Schaeffer abstaining due to potential conflict of interest); and WHEREAS, on February 26, 2013, the Planning Commission considered the revised Resolution with findings for the granting of the appeal and overturning the Zoning Administrator's approval of the Use Permit. Following closure of the public hearing, the Planning Commission granted the appeal and overturned the Zoning Administator approval of Use Permit (UP12-022). Commissioner Robertson moved and Comissioner Lubarmersy seconded to adopt Resolution 13- 03, granting the appeal and overturning the Zoning Administrator's approval. This motion carried by a vote of 5-0-2 (with Commissioner Belleto recusing himself since he was not appointed to the Commission at the February 12`x` meeting and Commssioner Schaefer abstaining due to potential conflict of interest), based on Findings that the proposed project would create too much noise for adjacent neighbors due to the shared common wall townhome design and the cul-de-sac parking arrangement; and WHEREAS, on March 5, 2013, within the statutory 5 day appeal period, Amanda McCarthy, a resident of San Rafael and parent of a child at the family daycare, filed an appeal (AP13-001) of the Planning Commission's action, pursuant to the provisions of San Rafael Municipal Code Chapter 14.28, citing four points of appeal and requesting that the City Council reverse the February 26, 2013 decision of the Planning Commission; and WHEREAS, on May 20, 2013, the City Council held a duly -noticed public hearing to consider the Appeal (AP13-001), accepted and considered all oral and written public testimony and the written report of the Community Development Department staff and closed said hearing on that date; and WHEREAS, following the closure of the public hearing, the City Council discussed the appeal points and the proposal, ultimately voting unanimously to direct staff to prepare a revised Resolution, granting the appeal of the Planning Commission's decision, thereby overturning the Planning Commission decision to overturn the (API2-007)Zoning Administrator's approval of Use Permit UP] 2-022. The Council further recommended that the approval include a condition of approval of the Use Permit (UP12-022) to limit the approval for a period of 6 months, during which time the daycare provider, concerned residents and Community Action Marin staff will meet and confer to address resident concerns about noise, privacy and parking. At the end of the 6 month period, the matter will return to City staff for review and if significant noise or traffic issue are found, the Use Permit may be revoked; and WHEREAS, the City Council considered the revised Resolution to reflect their direction from the May 20, 2013 meeting to grant the appeal and overturn the February 26, 2013 Planning Commission decision, including the appropriate findings and conditions of approval; and NOW, THEREFORE, BE IT RESOLVED, the City Council hereby grants the Appeal (AP13-001) of Amanda McCarthy and overturns the February 26, 2013 Planning Commission decision granting the appeal of the Zoning Administrator's approval of Use Pen -nit (UP12-022), thereby granting approval of the Use Permit for a large family day care for 6 months. The City Council finds that the points of the appeal (identified in bold/italics) can be supported for the following reasons: Appeal Point #1: "While there is a common wall adjoining 23 Baypoint Drive and 27 Baypoint Drive (adjacent neighbor and previous appellant, Victoria Pollick), this common wall consists of private family space, both upstairs and downstairs. No children are allowed in this area (save older children, one at a time and supervised to use the restroom). A solid door separates this area which consists of an open kitchen divided by a counter/bar from an area with a couch, loveseat, and television, or family bedrooms (upstairs). A solid door separates this area from the daycare. This children's area is separated from this common wall by approximately 3© feet and a closed door. " Response and Finding: The Planning Commission's decision was based on their review of the ZA minutes, site visits and analysis of the proposed project's consistency with applicable General Plan 2020 policies and conformance with Zoning Ordinance regulations. In addition, the Commission heard testimony from the ZA decision appellant (adjacent common wall neighbor at 27 Baypoint) that noise and vibrations from activities at the daycare were disruptive. The Commission ultimately voted (5-0-2, with Commissioners Belletto and Schaefer abstaining) to adopt a resolution granting the appeal of the Zoning Administrator decision and thus overturning the ZA's approval. However, based on City Council review of the appeal on May 20, 2013, including the staff report appeal letter, infonnation submitted in comment letters and public hearing testimony, the Council ultimately voted unanimously to grant the appeal of the Planning Commission decision, with the caveat that the Use Permit would be valid for 6 months. The Council found that the noise impacts that the Commission cited as reason for the denial may not be appropriate given the noise readings presented by the appellant. The Council further voted to allow the day care operator and their neighbors to meet and confer to address the issues of noise and drop-off/pick-up and thus granted the Use Permit for a period of 6 months, during which time the daycare provider (Ramirez Family Daycare), concerned residents, staff from Community Action Marin and the Baypoint Lagoon HOA, will work together to address potential impacts from the daycare regarding noise, privacy and parking safety. The framework for the discussion will be based on the points identified in a letter from the appellant (Amanda McCarthy) to the Council dated May 5, 2013, identifying 6 points that may potentially ameliorate concerns, as listed below: 1. Replace the doors and/or windows of the home to be more "soundless" 2. Installing an A/C system so that the windows do not need to be open when it is hot 3. Conducting a study of "comps" near other "large" home daycares to determine any effect of home daycares on property value while also engaging a realtor and appraiser/broker to fully understand any implications for the fixture sale of your home (my understanding is that there is no difference between 8 children and 14 children) 4. Requiring a set drop-off and pick-up time "set window" to reduce any perceived impacts of these activities 5. Requiring a 6 -month or 1 -year (biannual or annual) renewal of the permit 6. Revocation of the permit if any conditions agreed to by neighbors surface Appeal Point #2: "The side yard is not and has never been used as a play area. Therefore, the play area has a 10 foot wide buffer that is not used for play that is adjacent to a neighbor's yard (19 Baypoint Drive). " Response and Finding: The Planning Commission determined that the outdoor activities of the daycare would have a negative impact on the outdoor recreational spaces for the adjacent neighbors due to the design of the townhomes in the project vicinity (cul-de-sac with small yards), and the close proximity of the side yard to the outdoor play area for the daycare. However, the Council determined that while the daycare did introduce a noise element to the neighborhood, there may be ways to mitigate for the noise such that the impact from the daily daycare operations would be more acceptable to adjacent residents. To that end, The Council voted unanimously to grant the appeal, approving a Use Permit for a 6 month tune period, during which time, the daycare provider, concerned residents and staff from Community Action Marin will work together to address potential impacts from the daycare regarding noise, privacy and parking safety. Appeal Point #3: "It should be noted that at maximum, should 14 children be present in one day, an increase of 28 car trips would be documented. This would be spaced out over the entire day, as shown in the typical daily log of the day (Attachment E). Based on the existing neighborhood use of the roadway, this is not expected to be a significant, not substantial, nor noticeable increase in traffic. In addition, there is ample street parking such that parents are able to park on each side of the "driveway" at anytime. Parents do not enter the driveway that provides access to each of the homes, garages, and guest spaces. " Response and Finding: The Planning Commission determined that the loading and unloading of potentially 14 children near the small cul-de-sac presented a safety concern for the children because of limited visibility for vehicle backup in the driveway and potential conflict of vehicles exiting onto the common driveway in the cul-de- sac. The Council determined that there was an opportunity for the daycare provider and the residents to work together and resolve potential drop- off and pick-up concerns. As such, the Council unanimously voted to grant the appeal with the caveat that the Use Permit be granted for 6 months only and that all parties work together to consider the suggestions proposed |mthe appellant and listed inthe response ioAppeal Point #| above. The Council has added Condition of Approval #2tothe previously approved conditions, stipulating that the use pen -nit abuU return for Zoning Administrator review after the month time period has ended. Appeal Point #4: "In terms of suitabilityfor m largefamily day care . . �or/hr majority of the day, momore than seven children are present on the premises. Any additional children up to the maximum mf/4children include xchchildren who are quietly doing homework, or sleeping (ages typically are 5-12). " Response and Findin : The Planning Commission determined that the proposed large family daycare use would bcdetrimental 0n properties in the projectvicinity, and that small family day care (0-8children) was umore appropriate size for the duyeore operation on site. However, the Council recognized the need for large family day care (9-14 children) in San Rafael and the benefit it provides xauservice tothe community. The Council heard testimony from adjacent neighbors that the noise from the daycare was an intrusion on their peace and quiet during the day. However, after discussing the potential conflicts, the Council felt that the parties may be able to find a solution that would mitigate the innpucim in uway that would allow the daycare to bemore compatible with the neighborhood. Ultimately, the Council voted unanimously to grant the appeal and approve the Use Pen -nit for 6 months, with the caveat that the parties work together to consider the suggestions proposed by the appellant (see response to Appeal Point 41 above) as possible conditions of project approval. BE IT FURTHER RESOLVED, huucd on the Council's action to grant the appeal and overturn the Planning Commission's decision, the Use Permit stands as conditionally approved for 6 months. The proposed minor interior alterations and operation of a large family day care use at 23 Buypoini Drive are cxcnop1 from review under the California Cuvioounuuntul Quality Act (CE0/\), pursuant to Section 1530 1 a (Existing Facilities) of the CEQA Guidelines; and BE IT FURTHER RESOLVED, that the time within which Nseekjudicial review of this decision is governed by Code of Civil Procedure Section 1094.6. BE IT FURTHER RESOLVED, the custodian ofdocuments which constitute the record of proceedings upon which this decision is based is the Community Development Department; and NOW, THEREFORE, BE IT F0RU[0UKR RESOLVED, that the City Council does hereby grant the appeal and overturn the February 2620|3Planning Commission decision granting an appeal and overturning the November 14, 2012 Zoning Administrator's approval of a Use Permit (UP !2'022)for u large family day care based onthe following findings: 0S0PERNIUT FUN|NDNGS(UPl2-A22) The proposed large family day care use, asconditioned, is inaccordance with the City o[ San Rafael General Plan 2d2O, the objectives ofTitle l4of the City of San Rafael Municipal Code (the Zoning Ordinance), and the puqpmmco of the Planned Development (PD 1562) Zoning District inwhich the site iolocated because: |) the child care service use is consistent with Ocncru| p)un Policy NU -ll (needed neighborhood serving uses) and General Plan 9o|icyNU'52 (encouraging new businesses that provide needed services), 2) large family day care isuconditionally allowable use inthe Planned Development zoning district; and 3) the proposed large family day care meets the Performance Standards per Section 14.17.040 of the Zoning Ordinance, including a license from the State of California (license 4214005252). However, while the Council did find that the proposed project did meet all performance standards for large family day cares, the Council also found that the performance standards were lacking a strong framework of objective measures to analyze project specific impacts. With a better framework in place, the Council felt there may be an opportunity to minimize the daycare's impact on adjacent properties. As such, the Council voted that the prudent course of action would be to conditionally approve the proposed Use Permit for 6 months, during which time the daycare provider and all effected parties shall coordinate their efforts to try and find ways to mitigate the potential impacts from the daycare use, as delineated in Finding #2 below. The proposed large family day care use, as conditioned, would not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity of 23 Baypoint Drive, or to the general welfare of the City of San Rafael because: 1) the proposed project is a conditionally allowed use under the zoning code; 2) the proposed project does not propose any exterior changes to the building or expansion to the building; 3) the proposed project has been reviewed by appropriate City Departments and appropriate HOA; and 4) the proposed passenger loading plan was approved by the Traffic Division. Resident concerns expressed about traffic safety along Baypoint Drive were not specifically associated with the proposed daycare use, but related to traffic in general. Parking issues specific to the loading and unloading of children at the site have been addressed by adding conditions of approval to minimize potential impacts identified by concerned neighbors, including COA #6, which prohibits parking in the cul-de-sac area and guest parking spaces, and COA #9 which requires a Use Permit amendment (with a public notice and hearing) for any future large family day care facility proposed at 23 Baypoint Drive. At the Council hearing, residents raised concerns about noise from the child care facility, and the Council heard testimony from the appellant that the added noise was not excessive relative to the amount of time the children will spend outdoors (2 hours/day). In addition, the house at 23 Baypoint Drive faces the street and the outdoor play area fronts on the street side of Baypoint Drive. This will minimize noise impacts to the adjacent property at 19 Baypoint and 27 Baypoint because the outdoor play area is not adjacent to the recreational spaces for these adjacent properties. Ultimately, the Council voted unanimously to limit the Use Permit for a 6 month period only (Condition of Approval #2). During this time frame, the daycare provider, concerned residents, staff from Community Action Marin and the Baypoint Lagoon HOA, will work together to address potential impacts from the daycare regarding noise, privacy and parking safety. The framework for the discussion will be based on the points identified in a letter from the appellant (Amanda McCarthy) to the Council dated May 5, 2013, identifying the following points that may ameliorate concerns, as listed below: a) Replace the doors and/or windows of the home to be more "soundless" b) Installing an A/C system so that the windows do not need to be open when it is hot c) Conducting a study of "comps" near other "large" home daycares to determine any effect of home daycares on property value while also engaging a realtor and appraiser/broker to fully understand any implications for the future sale of your home (my understanding is that there is no difference between 8 children and 14 children) d) Requiring a set drop-off and pick-up time "set window" to reduce any perceived impacts of these activities e) Requiring a 6 -month or I -year (biannual or annual) renewal of the permit D Revocation ofthe pen -nit i[any conditions agreed 0o6vneighbors surface. The proposed child care aunicc (as conditioned) complies with each of the applicable provisions of the Zoning Ordinance because it has been n:viovvcd by the Zoning Administrator and found to be u conditionally allowable use in the Planned Development Zoning District pursuant tuZoning Code Section 14.04.020. Further, the proposed project would meet the applicable requirements under the Perfon-nance Standards for Large Family Day Care in Section |4.l7.04Oofthe Zoning Ordinance. USE PERMIT (UPI 2-022) CONDITIONS OF APPROVAL COMMUNITY DEVELOPMENT DEPARTMENT Planninii4 Division |. Except usmodified by these conditions of approval, this Use Pennk([|P|2'022) approves u large family day care facility for upboumaximum o[|4 children. Hours of operationfor drop off and pick upshall bebetween the hours of6:30an'to6:00pm, Monday through Friday. Outdoor playtime is limited to \ hour in the morning (generally hciweuu 11:00 um— 12:00 pm) and } hour inthe afternoon (generally between 1:30pm-2:30pm). Any increase \nthe hours of operation or increase in the amount of outdoor playtime would require an amendment to Use Pen -nit (UP|2'U22). 2. This Use Pen -nit (UP|2-022)isvalid for 6months only, muntil December 3,2@13.Atthecnd of this 6month period,the Use Permit shall bereviewed bythe Planning Division staff to review the continued operation of the use and review the progress bythe various parties on implementing measures tnaddress the neighbors' concerns and detooninucompliance with conditions of approval, as outlined in Condition of Approval #3 below. Based on the review, the Use Permit may be extended or not extended subject to the procedures outlined in Condition o[Approval #4below. Within the 6 nn/n1h time period, the daycare providcr, uunuonxd residents, staff from Community Action Marin and the BoypohU Lagoon H(}&, will mcci and confer to address potential impacts from the daycare regarding noise, privacy and parking safety. a. City staff will initiate an introductory meeting between the four partiestoestablish the[rarnework, explain this condition of approval and encourage umoperative process to find solutions. The 6umown,k for the discussion will be based on the points identified in a letter from the appellant (Amanda McCarthy) tothe Council dated May 5, 20/3, as on file with the Community Development Department, identifying 6 points that may be incorporated as additional conditions of approval toameliorate concerns, um listed below: i Replace the doors and/or windows of the home Wbemore "soundless", ii. InstallingonA/c system aothat the windows donot need \uheopen when itimhot Conduodn�uStudy of"comnpa" near other large" homcduyoureoho dotcnnincany effect ofhome duycucosonproperty value while also engaging urru|norand appraiser/broker tofully understand any implications for the future sale ofyour homnc(my understanding isthat there is no difference between 8cbi|dren and 14 children) iv. Requiring a set drop-off and pick-up time "set window" to reduce any perceived impacts of these activities V. Requiring a 6 -month or 1 -year (biannual or annual) renewal of the permit vi. Revocation of the permit if any conditions agreed to by neighbors surface 4. The 6 month review is to be administered by Planning Division staff, and shall follow the following procedures: a. At least 4 weeks prior to the expiration date, the applicant shall be responsible to submit in writing an update and status on their discussions with concerned residents, staff from Community Action Marin and Baypoint Lagoons HOA. b. Planning Division staff will mail a 15 -day public hearing notice for a Zoning Administrator public hearing to request any written or oral comments on operation of the use and the discussions/agreements made by the working group. If there are no significant issues raised from the affected parties, the Zoning Administrator shall have the authority to extend the Use Permit in perpetuity and incorporate as conditions of approval any and all agreements made by the parties for continued operation of the large family day care. If there are significant issues raised or lack of agreement, the Zoning Administrator shall refer the matter for review and action by the City Council. This may result in the non -extension of the Use Permit, requiring that the large family day care cease and operate as a small family day care (8 or fewer children) in a single family home. e. No application fee will be required for this review. 5. The subject property shall be used in substantial conformance with the floor plans and parking/loading plans submitted and stamped Approved May 20, 2013, and shall be the same as required for issuance of a building permit (if necessary), subject to the listed conditions of approval. 6. The applicant shall inform clients in writing (printed in both English and Spanish, or any appropriate language required by the client) that the approved parking and loading plan is located along Baypoint Drive and no client parking is allowed in the garage driveway apron, the cul-de-sac, or guest parking spaces in the cul-de-sac. A copy of the parking and loading plan instructions to clients shall be forwarded to the Planning Division. 7. No accessory structure over 80 square feet is allowed in the side yard of the property. No stationary play equipment shall be located in required side yards. 8. Outdoor activities may only be conducted between the hours of 7:00 am to 6:30 pm. 9. Any new child care service other than the existing approved Ramirez Child Care Services at 23 Baypoint Drive would require an amendment to Use Permit (UP12-022). Such an amendment review shall be done at the Zoning Administrator level, with required public notice. 10. All requirements of the San Rafael Municipal Code and of the implementing zone classification of Planned Development (PD 1562) for the subject property must be complied with unless set forth in the permit and by the conditions of approval. 11. The approval of this permit shall be contingent on approval by the San Rafael Fire Department. Any changes resulting from requirements of the San Rafael Fire Department shall be submitted to the Community Development Department for review and approval prior to commencement of construction. 12. Minor modifications or revisions to the project shall be subject to review and approval of the Community Development Department, Planning Division. Modifications deemed not minor by the Community Development Director shall require review and approval by the original decision making body, the Zoning Administrator. 13. The applicant shall comply with all applicable requirements of the City, County, State, and other responsible agencies. 14. This Use Permit (UP12-022) is only valid as long as the facility maintains a valid license from the State of California as a Family Day Care Home. The day care is currently approved by the State of California under Facility # 214005252. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, 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 Monday, the 3rd day of June 2013, by the following vote, to wit: AYES: COUNCILMEMBERS: Colin, Connolly, Helier, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, City Clerk