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PLN20-0047 - Appeal of Design Review Approval - 1245 McKay Avenue - Applicant: Alameda Point Collaborative, Inc. Public Hearing to Consider an Appeal of Design Review Approval No. PLN20-0047 to Allow the Rehabilitation of an Approximately 50,517-Square Foot Existing Building
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To: Honorable President and Members of the Planning Board
From: Henry Dong, Planner III
EXECUTIVE SUMMARY
On March 16, 2020, the Planning Director approved a Design Review application for the rehabilitation of an existing building at 1245 McKay Avenue for adaptive reuse as a senior living convalescent home. The Design Review approval and plans are attached as Exhibits 1 and 2. Mr. John Healy (“Appellant”) filed a timely appeal of the Planning Director’s decision on March 26, and submitted supplemental materials on April 20 (collectively, “Appeal,” attached as Exhibit 3).
Staff recommends that the Planning Board deny the Appeal and uphold Design Review Approval No. PLN 20-0047 based on the findings and subject to the conditions in the draft Resolution (Exhibit 5).
BACKGROUND
The subject property is an approximately 3.67-acre site located at 1245 McKay Avenue which contains two existing main buildings, 5 accessory structures totaling approximately 79,279 square feet, landscaping, 116 paved parking spaces, and wrought iron fencing. The site’s General Plan land use classification is Office and the site’s zoning is Administrative-Professional District.
In December 2018, following the Planning Board’s recommendation, the City Council adopted a Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) in compliance with the California Environmental Quality Act (CEQA), and took action to rezone the property previously occupied by the federal government to facilitate its reuse for the McKay Wellness Center (project) by changing the General Plan designation to Office, removing the Government Combining District zoning designation, and maintaining the Administrative-Professional zoning district designation.
Following the City Council’s action, opponents of the project filed a CEQA challenge in Alameda County Superior Court, raising many of the same arguments included in the Appeal. Following a hearing on the merits, the Court upheld the City’s MND and denied the petition for writ of mandate in its entirety. An appeal is pending.
In April 2019, the voters approved a ballot measure affirming the City’s rezoning action and rejected an initiative measure to rezone the property to Open Space and terminate the project.
On January 28, 2020, the applicant submitted a Design Review application to rehabilitate the first building on the subject property for adaptive reuse consistent with the Council’s land use decisions. On March 5, Planning staff mailed public notices in accordance with Alameda Municipal Code (AMC) Section 30-36.2 (Exhibit 4), and on March 16, 2020 the Planning Director approved Design Review Application No. PLN20-0047 to allow the rehabilitation of an approximately 50,517-square-foot existing building for adaptive re-use as a senior living convalescent home, which involves certain exterior modifications, including:
• Replacement of the exterior siding with new horizontal tile siding;
• Replacement of the existing windows with new fixed/awning windows;
• Redesign of exterior entrance on the south elevation;
• Installation of a new interior walkway connecting two wings on the north elevation; and
• Enclosure of existing staircases, breezeways, and balconies around the building.
The Appellant filed a timely Appeal, which does not raise any substantive architectural arguments related to the Design Review approval. Instead, the Appeal raises numerous arguments entirely unrelated to Design Review, without any supporting evidence.
DISCUSSION
Standard of Review
This Appeal is governed by AMC Section 30-25. More specifically, AMC Section 30-25.1 provides that any decision of the Planning Director may be appealed to the Planning Board by any person aggrieved or affected by the decision. AMC Section 30-25.5 provides that appeals shall be scheduled for public hearing and decision by the Planning Board no later than the third regularly scheduled and held meeting following submittal of the appeal or call for review. An alternative date for the hearing may be selected by mutual agreement of the original applicant, the City and appellant. The June 8, 2020 meets this timing requirement.
AMC Section 30-25.5 provides that the Planning Board reviews the Planning Director’s decision de novo. The “Planning Board… may consider the introduction of all pertinent material, including all documents constituting the administrative record.” Id. “At the hearing, any party or person may appear in person or by agent or attorney to provide testimony.” Id. The Planning Board may reverse or affirm, in whole or in part, or may modify the decision of the Planning Director. Id.
Decision at Issue - Design Review Approval
The City of Alameda’s Design Review process is described in AMC Sections 30-36 and 30-37. AMC Section 30-37 requires Design Review approval for exterior modifications to an existing building. Decisions on Design Review applications are made by designated Planning staff (AMC Section 30-36.1) and must be noticed to owners of property located within 100 feet of the project site (AMC Section 30-36.2).
To grant Design Review approval, each of the following required findings must be met (AMC Section 30-37.5):
1. The proposed design is consistent with the General Plan, Zoning Ordinance, and the City of Alameda Design Review Manual;
2. The proposed design is appropriate for the site, is compatible with adjacent or neighboring buildings or surroundings, and promotes harmonious transitions in scale and character in areas between different designated land uses; and
3. The proposed design of the structure(s) and exterior materials and landscaping are visually compatible with the surrounding development, and design elements have been incorporated to ensure the compatibility of the structure with the character and uses of adjacent development.
In summary, staff found the proposed design is consistent with the General Plan, Zoning Ordinance, and the City of Alameda Design Review Manual. Uses that are permitted in the respective zoning district are also consistent with the General Plan. The Design Review Approval evaluated the exterior rehabilitation and minor alterations to the existing structure itself, and found the proposed physical improvements to the building were architecturally compatible with the building’s existing architectural style. Staff determined the design is appropriate for the site because the proposed modifications maintain the height, overall form, and defining elements of the existing building such as the long horizontal form, the continuous ribbon style windows, the overhanging flat roof, and the horizontal projecting sunshade feature. The project maintains the existing character of the building and does not change the building’s relationship with adjacent or neighboring buildings, nor does it affect the transitions in scale and character of existing buildings in the neighborhood. In addition, the proposed modifications are designed to be compatible with the existing building and utilize similar fixed/awning windows, horizontal exterior siding, and decorative wood cladding around the building which are also compatible with the design elements found on buildings in the surrounding neighborhood.
Staff also reviewed the project against the Objective Design Review Standards (Standards) adopted by the Planning Board on February 10, 2020, which apply to transitional and supportive housing. Staff reviewed the plans according to the Standards and found them to be compliant in all categories except for standards 1A, which require no gates on private streets into the development, and 3.A.1, which requires the front entrance to the building to face the public street. The proposed project would close off an existing entrance on McKay Avenue and establish a new front entrance facing the interior parking lot. This design was proposed by the applicant to provide a simplified and secure floor plan with direct access to the parking lot. The project would also maintain an existing gate located on the private street that enters the property in order to maintain a secure perimeter for the safety of the senior tenants. The adopted Standards provide applicants the option to request discretionary Design Review approval of a design element that does not comply with the Objective Standards. Under the discretionary Design Review process, the Planning Director determined that the design of the McKay Avenue elevation establishes sufficient window transparency and architectural articulation to maintain interaction with the public street despite not having a physical entrance on that side of the building. The gate maintained at the private entrance to the facility is an existing condition on the property, consistent with wrought iron fencing on adjacent properties, and serves to provide security for the seniors at the facility.
The Planning Director’s Design Review approval was based on the Findings set forth in Exhibit 1; nothing raised in the Appeal contradicts the Findings.
Appeal
The remainder of the staff report summarizes the Appellant’s arguments, followed by staff’s response.
Appellant Argument #1 - General Plan, Zoning, and City Charter Inconsistency. Appellant argues that the proposed use is inconsistent with and violates the Zoning Ordinance, the General Plan, and the City Charter (Measure A).
Staff Response. When reviewing and approving design review, the relevant factors that are being considered are aesthetics and design of a building, not the proposed use. In 2018, based on the Planning Board’s recommendation, the City Council determined the McKay Wellness Center project to be consistent with the General Plan and Administrative - Professional zoning district designation when it adopted the MND and approved the General Plan and Zoning Map amendments necessary for the proposed use of the land. As described below, the project is also consistent with the City Charter.
The project is consistent with the Office General Plan designation. The project is consistent with the Office land use designation in the General Plan. The General Plan provides land use classification descriptions that apply to uses indicated on the General Plan Diagram. Land Use Element Section 2.2 describes the Office land use classification as:
“Professional and administrative offices not located in business districts or business parks: FAR .40 for one story; .45 for two stories. Medium-density residential is a permitted use.”
Here, the project’s proposed use as a senior living convalescent home is consistent with the General Plan because the Office land use designation consists of accounting, insurance, real estate, law, and health-related services allowed in the A-P, Administrative-Professional District, and allows for senior living convalescent homes and similar uses, such as assisted living facilities and housing.
The project is consistent with existing Zoning. The project’s use as a senior living convalescent home is an expressly permitted use within the Administrative-Professional (AP) Zoning District. The AP Zoning District is applied in areas where administrative and professional offices, medical and related facilities are the proper uses as indicated by the General Plan. AMC Section 30-4.7.b.2 indicates “Uses Permitted” by right in the AP Zoning District include:
“Medical facilities, including, but not limited to the following: (a) Dental clinics, (b) Hospitals, (c) Medical clinics, (d) Medical laboratories, (e) Nursing and convalescent homes, (f) Radiologist laboratories, (g) Rest homes, (h) Sanitariums.” (Emphasis added.)
The project does not violate AMC Section 30-8. Appellant claims that the project violates AMC Section 30-8 Conversion to Multiple Houses. AMC 30-8 prohibits the conversion of any structure to “multiple houses” without a permit. The project is not proposing conversion of multiple houses which is defined as a condominium in AMC 30-2, therefore this section is not applicable.
The project does not violate the City Charter/Measure A, which prohibits multifamily housing. The project is not multifamily housing; it is a senior living convalescent home. The senior living convalescent home does not constitute a “dwelling unit” as defined in AMC Section 30-2 (i.e., a group of rooms, including a kitchen, bath and sleeping quarters, designed and intended for occupancy by one (1) family) because occupants would not have independent kitchen facilities. The approved set of plans show countertops with plug-in cooktops, similar to Cardinal Point and other approved senior assisted living facilities, and do not have gas service or 220 volt electrical service hook ups that constitute a kitchen under the Building Code.
Appellant Argument #2 - Environmental Review. Appellant argues that the decision to approve Design Review did not comply with CEQA based on staff’s reliance on McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80 (“McCorkle”) and, as a separate and independent basis, on the Mitigated Negative Declaration due to a pending appeal.
Staff Response.
The City properly relied on McCorkle. The City properly relied on McCorkle, which held that discretionary design review of an otherwise permitted use is not subject to CEQA. The City’s discretion is limited to design review, not the use of the building, since no use permit is required for the McKay Wellness Center in the Administrative-Professional Zoning District. There is no authority in the City’s Design Review regulations to consider issues related to environmental impacts of the use, which were already studied in the previously adopted MND and determined by the City Council to be consistent with the underlying zoning. The Court in McCorkle upheld the City of St. Helena’s finding that the issues addressed during design review did not require the separate invocation of CEQA. Appellant has offered no evidence of any environmental impacts from the proposed exterior modifications to the existing building.
The City properly relied on the Mitigated Negative Declaration, which has been upheld by a California court. As a separate and independent basis, the City cited to the MND for CEQA clearance. Although the Design Review approval does not require an MND, to the extent needed, the environmental impacts of the project were previously analyzed in the MND, and none of the circumstances warranting further CEQA review are present. The MND has been upheld by a California court.
Filing an appeal of the trial court’s decision does not affect the processing of further project approvals. Although an appeal of the trial court’s decision has been filed, responsible agencies must assume that the MND complies with CEQA and must continue to process the project application in accordance with relevant time limits. Public Resources Code Section 21167.3(b). The City’s approval of design review during pending litigation constitutes permission for the applicant to proceed with the project at the applicant’s risk before a final decision in the court action.
The approval was properly noticed. Appellant claims that the Design Review approval was not properly noticed in either the original CEQA proceedings or these proceedings, nor was notice given to responsible agencies.
Staff properly noticed the Design Review approval pursuant to applicable law, including AMC Section 30-36.2, which requires mailed notice of the City’s Design Review Approval to the owners of property within 100 feet of the project site. The notices clearly stated the City of Alameda’s environmental determinations. No additional notice is required, and Appellant has offered no evidence that these notices were defective in any way or cited to any legal authority to support his conclusion that additional notice is required. The MND has been upheld by a California court, which expressly rejected claims that the MND was improperly noticed.
The Hazardous Materials Mitigation Measures are included in the Draft Resolution. Appellant claims that none of the formal mitigation measures required in the adopted MND and MMRP were included in the Design Review Approval.
The MMRP and mitigation measures adopted by the City Council are legal requirements that remain in place and must be implemented with the project, separate from the current approval sought by the applicant, which is design review of exterior modifications to the existing building. However, staff has added a condition of approval to the draft Resolution (Exhibit 5) to clarify that the project must adhere to the mitigation measures in the MMRP.
Appellant Argument #3 - Historic Resources. Appellant argues that the decision to approve Design Review was done incorrectly because the property is listed on the Historical Building Study List and should be considered historically significant.
Staff Response. Although the property is listed on the Historical Building Study List, it is not a historic resource under CEQA. The court addressed and expressly rejected this same issue (i.e., claims that the MND failed to consider historical resources impacted by the project), and upheld the MND.
The property was included in a 40-year old survey, the Historical Building Study List, “based on field observation” of potential structures that either had architectural significance, environmental significance, or design integrity. However, due to more recent information, this 40-year old listing of the project site is no longer accurate.
In 2003, the U.S. General Services Administration and the State Office of Historic Preservation determined the site and its remaining structures are not eligible for inclusion on the National Register of Historic Places because they have lost their historic integrity and association with the historic use of the property.
Appellant Argument #4 - COVID-19. Appellant argues that the timing of the appeal and running of the appeal period violate the spirit and law of the Presidential, Gubernatorial, and all local Emergency Orders for COVID-19.
Staff Response. None of the emergency orders issued during the pandemic impact local requirements for filing appeals. The City Council has not suspended these rules and they remain in effect. Appellant offers no evidence or argument for why or how these Emergency Orders have been violated.
Appellant Argument #5 - Adequate Staff Work. Appellant argues that Planning staff failed to complete the proper amount of due diligence as required by the application and subsequent modifications and answers made by APC to HHS, and that staff has not taken the time to look at the budget proposed by the applicant as the financial assumptions are “not based on reality.”
Staff Response. Planning staff took action when it had sufficient information in the record about the architectural design of the project to determine whether the required Design Review findings could be met (i.e., the proposed architectural changes to the exterior of the building are: (1) consistent with the General Plan, Zoning Ordinance, and the City of Alameda Design Review Manual; (2) compatible with adjacent or neighboring buildings or surroundings, and promotes harmonious transitions in scale and character in areas between different designated land uses; and (3) visually compatible with the surrounding development).
Based upon a complete and thorough review of the application, staff was able to make the necessary findings to approve the project. Appellant has cited no specific evidence to support his claims. Pursuant to AMC Sections 30-36 and 30-37, the City’s discretion over Design Review is expressly limited to these three planning and architectural design considerations. The AMC does not authorize Planning staff to review an applicant’s financial resources or an applicant’s communications with outside agencies to determine whether the architectural plan should be approved, as they are irrelevant to Design Review.
Appellant Argument #6 - Violation of Hearing Procedures. Appellant claims the Design Review approval violates AMC provisions for hearing procedures, citing AMC Section 1-8.01.
Staff Response. City staff complied with all relevant procedural requirements in approving the Design Review application, including the noticing requirement for Design Review set forth in AMC Section 30-36.2. AMC Section 1-8.01, which does not apply to Design Review approval, only applies to “…any administrative proceeding conducted under… [the AMC]…by a Hearing Officer or Hearing Examiner.”
Appellant Argument #7 - Design Review Approval violates Council Resolution Nos. 15461, 15474, 15476 and Ordinance No. 3234.
Staff Response. The Design Review approval is consistent with Resolution No. 15461, adopted December 4, 2018 (which adopted a Mitigated Negative Declaration, MMRP, and General Plan amendments to allow for private use of the subject property for the project), and Ordinance No. 3234, adopted December 18, 2018 (which amended the zoning map to remove the G overlay for the subject property). The Design Review approval is also consistent with Resolution Nos. 15474, adopted January 2, 2019, and 15476 (which amended Resolution No. 15474), adopted January 10, 2019, which submitted a ballot measure to the electors confirming the City Council’s actions to permit reuse of the property to allow for the project. Appellant fails to present evidence or otherwise identify how the Design Review approval violates the referenced legislation.
ENVIRONMENTAL REVIEW
Denying the appeal and upholding the Design Review Approval for a permitted use is not subject to CEQA. McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, Public Resources Code Section 21080. As a separate and independent basis, a Mitigated Negative Declaration was adopted by the City Council on December 4, 2018 for the McKay Wellness Center in accordance with CEQA, and no further review is required pursuant to Public Resources Code section 21166 and CEQA Guidelines Section 15162.
RECOMMENDATION
Staff recommends that the Planning Board conduct a de novo hearing, deny the appeal, and uphold the Planning Director’s approval of Design Review No. PLN20-0047, based on the findings and subject to conditions in the draft Resolution.
Exhibits:
1. March 16, 2020 Design Review Approval
2. Project Plans
3. Appeal
4. Public Notice for Design Review
5. Draft Resolution