2200 oxford street - berkeley, california · 8.10.2009 · area. all construction is limited to...

Z O N I N G

A D J U S T M E N T S

B O A R D

S t a f f R e p o r t

2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail:

[email protected]

FOR BOARD ACTION OCTOBER 8, 2009

2200 Oxford Street

UP #09-10000047 to modify use permit #04-10000114 for an approved restaurant/catering establishment with beer and wine service to add full liquor service, patio seating, sidewalk seating and live entertainment; (C-2

Central Commercial, JWC/GMS)

I. Application Basics

A. Zoning Permits Required: · UP(PH) for outdoor courtyard seating abutting R-5 use, under BMC 23E.16.020,

23E.68.030 and 23E.68.060.C; · AUP for live entertainment in outdoor patio adjacent to R-5 use, under BMC

Section 23E.68.030 and 23E.68.060; · AUP for sidewalk café seating, under BMC Section 23E.24.010; and · Expanded alcohol service, under BMC Section 23E.16.040—consistent with

privileges of ABC License Type 47 with additional Catering License Type 58; B. CEQA Determination: Categorically exempt pursuant to Section 15301 of the

CEQA Guidelines (―Existing Facilities‖). C. Parties Involved:

· Applicant Ari Derfel Terrain LLC P.O. Box 11286 Berkeley, CA 94712

· Property Owner Oxford Street Development LLC P.O. Box 29585

San Francisco, CA 94129-0585

2200 OXFORD STREET ZONING ADJUSTMENTS BOARD of 14 October 8, 2009

File: G:\LANDUSE\Projects by Address\Oxford\2200 (Brower Center)\UP 09-10000047\drafts\ZAB Staff Report_2200 Oxford_word 2003gs2.doc

Figure 1: Vicinity Map

ZONING ADJUSTMENTS BOARD 2200 OXFORD STREET October 8, 2009 of 14


Figure 2: Site Plan



Table 1: Land Use Information Location Existing Use Zoning District/

Downtown Plan Sub-Area

General Plan Designation

Subject Property Vacant Storefront approved for full-service restaurant

C-2/Oxford Edge Downtown Commercial

Surrounding Properties

North Restaurants, mixed-use building; Stadium Apartments

C-2/Oxford Edge Downtown Commercial

South Oxford Plaza Apartment Building (R-5 type)

C-2/South Downtown Commercial

East UCB Campus, Alumni Bldg and Edwards Stadium Complex

R-5/High Density Residential

Institutional

West Restaurants, GAIA Building (arts center and apartments)

C-2/Core Downtown Commercial

Table 2: Special Characteristics Characteristic Applies

to Project?

Explanation

Alcohol Sales/Service Yes Application has been made to increase permitted alcohol service consistent with privileges of ABC License Type 47 for the sale of beer, wine and hard liquor with additional Catering License Type 58.

Liquefaction Yes Project is within an identified Seismic Hazards Area. All construction is limited to existing interior space and no structural changes are being made to building, which was built in 2009.

Soil/Groundwater Contamination

Yes Project is within an Environmental Management Area. All construction is limited to existing interior space and no excavation is required.

Table 3: Project Chronology Date Action

5/16/08 Application submitted

8/30/09 Application deemed complete

9/24/09 Public hearing notices mailed/posted

10/8/09 ZAB hearing

10/29/09 PSA deadline1

1. Project must be approved or denied within 60 days after being deemed complete if exempt from CEQA, or 60 days after adoption of a negative declaration, or 180 days after adoption of an EIR (Govt. Code Section 65950).



Table 4: Development Standards Standard BMC Sections 23E.68.070-080

Existing Addition/ (Reduction)

Proposed Total

Permitted/ Required

Lot Area (sq. ft.) 46,306 No Change 46,306 NA

Gross Floor Area of subject space (sq. ft.); includes ground floor (2,891), and patio (729)

3,400 +151 (in outdoor patio)

3,551 NA

Gross Floor Area of subject building (sq. ft.)

45,400 (Brower Center)

No Change 45,400 NA

Floor Area Ratio Approx 3.37

No Change Approx 3.37

3.55

Parking Automobile 104 (public

garage, 1 level)

No Change 104 ( public garage)

NA

Bicycle 27 (Brower Center)

No Change 27 (Brower Center)

NA

II. Project Setting A. Neighborhood/Area Description:

The project is located in the ground floor space and its adjacent patio and sidewalk area at the east end of the recently completed Brower Center. The Center is located in downtown Berkeley at the southeast corner of Oxford and Allston Way (see Vicinity Map). Edwards Stadium and the former University Extension building which are part of the UC Berkeley Campus are directly across Oxford/Fulton Street to the east. Adjacent to the south side of the Brower Center and separated by a courtyard and entry is the recently completed and fully occupied, Oxford Plaza Apartments, another component of the master development complex that includes the Brower Center and adjunct underground parking garage. On the north side of Allston Way across from the approved restaurant space in the Brower Center building there is a ground floor restaurant, offices and an apartment building with an entry court adjacent to the sidewalk. West along the south side of Allston Way there is another restaurant and the GAIA complex, which contains apartments, offices and the GAIA Arts performance center. The site is less than two blocks from the City’s central AC Transit mall and an entrance to the downtown BART Station. In addition, there are several movie theatres within a short walk which also draw people to the area into the late evening. The approved restaurant in the Brower Center is part of a growing, diverse mix of cafes and restaurants in the downtown area. The proposed use permit modification for a Type 47 License (see accompanying ABC License Map)



brings the total to approximately seven (7) sit-down restaurants with licenses for bar and alcohol sales within a 1000 foot radius of the Brower Center location. Two other sites within less than a block of the Brower Center restaurant have permits for live performances as well as alcohol sales.

B. Site Conditions:

As summarized above, the Brower Center is one of three main development components that now occupy the approximately 1.06 acre (43,306 sq. ft.) site that formerly was a City owned parking lot. The Brower Center includes, in addition to the approved, approximately 2,891 sq. ft. ground floor restaurant space, offices for various environmental advocacy groups, a conference center and ground floor gallery space. The underground parking garage is accessed from Kittredge Street and provides approximately 122 public spaces. The enclosed, approximately 729 sq. ft. lower courtyard patio that is available for use by restaurant patrons is connected to the restaurant space by three sets of double doors. The courtyard also opens to Oxford Street through a set of five gates and provides access to a stair leading to a second story gated courtyard for the Oxford Plaza Apartments as well as an outdoor space adjacent to the Brower Center conference room. In addition to the stair access to second level spaces, the portion of the outdoor courtyard that is proposed for use by the restaurant operator is defined on the west side by an approximately 12 foot high wall. The north side of the Oxford Plaza Apartments facing the courtyard is largely an insulated concrete building wall with small openings for corner unit bathrooms and kitchens. The bedroom and living room space for these corner units face Oxford Street and only the southernmost window farthest from the courtyard at the corner of the building is operable. The only other windows on the north side of the building facing the outdoor courtyard are non-operable and are for the provision of light to the building’s central hallway. The emergency stairwell is located in the northwest corner of the portion of the building facing the courtyard and this portion of the exterior wall does not have any openings. The site is along the curved portion of Oxford Street where it merges with Fulton Street to the South. As part of the construction of the Brower Center complex, the southwest corner of the street was reconstructed to eliminate a separate right turn lane. The resulting public right-of-way at the corner is atypically generous with a gentle slope up to a level area adjacent to the entry to the approved ground floor restaurant space. Along the Oxford/Fulton street edge in front of the restaurant there is a designated yellow zone for service vehicles as well as a length of white curb designated for drop-offs.

III. Project Description Use Permit #04-10000114 permitted the establishment of a full-service restaurant with incidental beer and wine service. The proposed project modifies this permit by adding an



ABC type 47 liquor license with a type 58 catering permit. This modification expands the initial approval for incidental beer and wine service to allow the sale of distilled spirits for on-site consumption both with meals and separately at a bar without meals. The catering permit allows the operators to include full alcohol beverage service for approved on-site and off-site special events. The requested use permit modification also adds outdoor patio seating, sidewalk seating and live entertainment during afternoon and early evening hours. A high-quality, full-service sit-down restaurant was conceived as a key tenant for the Brower Center and an important component of the ground floor space. In addition to the approved seating for 67 indoor dining spaces and 14 bar spaces (81 seats), the proposed modification would add seating space for 46 persons in the gated patio courtyard area and sidewalk seating for 16 persons adjacent to the main entry/exit at the corner of Oxford Street and Allston Way. No permanent fixtures will be used in the sidewalk café area. All tables and tables and chairs for the sidewalk café will be moved after hours of operation to secured areas of the site. In accordance with City regulations and policies, no alcohol consumption will be allowed at tables located in the public right-of-way. A security camera system is planned, as outlined in the amended Applicant Statement (Appendix 2). Nine (9) identified initial locations allow a manager in the administrative office to monitor restaurant activities, including all entry/exits, cash registers, the bar area, the sidewalk seating area, the patio gates and outdoor seating area, and both the adjacent sidewalk area along Allston Way and Oxford Street. The cameras are part of a two phased installation of a proposed sixteen camera digital video recorder system. The cameras are tied to the burglar alarm system for after hours surveillance. Camera images also are to be recorded and stored and is internet linked, allowing offsite viewing access for the managers and owners. The operators of the restaurant and bar who hold the approved lease from the Brower Center (Oxford Properties) are experienced professionals with a proven track record for managing the type of high profile establishment that is conceived for the site. Their experience includes responsible management of alcoholic beverage sales and adherence to Alcoholic Beverage Commission (ABC) regulations and practices. They have stated their commitment to training and obtaining certification for all their employees in accordance with the best practices outlined in the ABC’s Licensee Education on Alcohol and Drugs (L.E.A.D), also known as Responsible Beverage Service training. No alcoholic beverages will be served or allowed in the sidewalk café. The seating plan for the interior restaurant space is designed to allow pedestrian views to window displays and to all entry/exits. The outdoor patio seating (46 persons) is located in the gated area adjacent to the south side of the restaurant. There is one entry/exit between the interior bar area and the patio which also can be opened to the sidewalk space along Oxford/Fulton Streets by several sets of operable gates. This outdoor courtyard space is considered part of the restaurant area and alcohol will be served with meals and can be brought in by patrons from the bar. No alcohol will be



served or can be consumed in the sidewalk seating area. Alcohol will not be sold with take-out food orders. Providing live entertainment in the form of musical performances during afternoon and evening hours is part of the concept for creating an attractive ambiance for the restaurant. Performances both indoors and in the patio area will be limited to no more than four musicians at a time and will include the use of acoustic, mostly stringed instruments and vocals. As stated by the applicant, amplified music using a basic sound system will be used for background ambiance only in the interior portion of the restaurant. No speakers will be used in the outside courtyard or sidewalk seating area. Live entertainment is limited to the permitted restaurant area which includes the outdoor, enclosed courtyard patio. Performances both indoor and outdoor will not continue later than 9 p.m. All windows and doors in the restaurant will be kept closed after 9 p.m. to provide late evening sound mitigation. Adherence to the general mitigation plan described by the applicant for restaurant noise and music will be the responsibility of a senior restaurant manager who will be on duty at all times when live entertainment is offered. In addition, the phone number for Ari Derfel, the principal owner, will be posted in a prominent, visible location at the main entrance for any person wanting to call regarding noise issues. Musicians will set up, especially in the outdoor courtyard in a location that will minimize sound projection outside the defined space. Umbrellas, sound screens and other physical elements will be used to provide additional sound absorption. A Noise Mitigation Plan for the project has been submitted (Appendix 2) that establishes measurable parameters for noise control in the outdoor courtyard area of the restaurant. A professional sound engineer who is experienced in live entertainment sound mixing has been engaged to establish performance standards and mitigation recommendations as improvements in the space are completed and can be tested for different types of performances and performers. An initial environmental sound study for the plaza which was prepared as part of the original development approvals and MND has established a base line decibel reading for exterior noise on Oxford/Fulton Street at a day/night average (DNL) of 72Dd and the apartments were constructed to mitigate that level of street noise. The acoustical instruments being considered for live performances typically have a noise range of 70-80Db. A preliminary assessment by the sound engineer of possible locations where musicians can set up for performances in the courtyard area has been made and recommendations for non-permanent mitigation materials to help mitigate reflected sound have been made, including carpet in the performance area, umbrellas for outer set of tables and use of a temporary rack with a sound absorbing material hanging behind the performers. Should complaints be received, a decibel meter will be used by trained managers to take readings to provide a record of the noise level at the time of receipt of the complaint.



IV. Community Discussion A. Neighbor/Community Concerns:

The Downtown Business Association (DBA) has submitted a letter of support for the project and the applicant has solicited additional letters of support commenting on the project from both the Brower Center and surrounding merchants and property owners. The operator of the adjacent Oxford Plaza Apartments has written a letter supporting live entertainment and restaurant use in the outdoor courtyard patio. These and other letters are available as part of the packet (Appendix 6). In compliance with the request for an ABC 47 Liquor License with a Type 58 Catering Permit, an inventory of comparable businesses within a one thousand foot (1000’) radius has been prepared (Appendix 4). As required, comments also have been received from the Berkeley Police Department (BPD) Chief Douglas Hambleton through the District 3 Coordinator. The report states that there are no concerns raised by the proposed use modifications for the increased level of alcoholic beverage sales or by live entertainment in the outdoor patio area under the proposed noise mitigation management plan. The report ―strongly supports‖ the applicant’s ―thoughtful restrictions‖ to not allow alcoholic beverages to be served or consumed in the sidewalk seating area and recognizes that the business plan for the restaurant ―appears to reflect a vision of creating an upscale gathering place that is committed to enhancing the development of the area.‖

B. Committee Review:

No advisory committee review is required for this project.

V. Issues and Analysis A. Key Issues:

1. Sale of Alcohol for On-Site Consumption inside the restaurant and in the courtyard patio area: In accordance with BMC 23E.16.040, an increase in the approved sale of alcoholic beverages is subject to regulatory public review and findings as discussed in Attachment 1.

There is concern that alcohol sales and consumption contributes to undesirable activities among a certain percentage of those who make use of public areas in the downtown. The proximity of both the U.C. Campus and Berkeley High School means that businesses with alcohol licenses have a higher percentage of potential underage customers. As shown by the accompanying map of ABC Licenses within 1000 feet of the subject property, there are approximately seven (7) with comparable licenses to sell beer, wine and hard liquor. In all there are approximately 35 with some form of license to sell alcohol. The High School is only



one-half block outside the 1000 foot buffer and a considerable portion of the southwest corner of the UC Campus is within the buffer. Edwards Stadium which is used for track and field events and soccer games is directly across Oxford/Fulton from the proposed restaurant and bar. Immediately outside the buffer are two other sports facilities that also draw large numbers of younger spectators, including at the Evan Diamond baseball field and the Haas Pavillion which hosts basketball, volleyball and gymnastics.

The critical factor in allowing the sale of alcoholic beverages for on-site consumption is how it is managed by the food staff and bartender. The outdoor courtyard area is operated as part of the restaurant and bar and can be accessed from the street when the gates are open as well as through the indoor area. Additional surveillance cameras are being installed inside the restaurant and in the patio area to monitor entry/exiting, bar sales, access and other activities. Alcohol will not be sold or allowed in the sidewalk café area. All restaurant staff will be trained and certified through ABC’s Licensee Education on Alcohol and Drugs (LEAD) responsible beverage service training program. Analysis: The lease holder for the operation of the restaurant facility is committed to operating a high quality establishment that serves the program concept for the new Brower Center, which is to be a private sector think tank on environmental issues. Office tenants and programs are expected to attract a broad range of activities, including fund raising. The restaurant plan for the restaurant includes professional management of complementary alcohol sales, both with and separate from meals based on a well established track record. Careful surveillance of alcohol sales, consumption and customer behavior includes use of strategically located cameras and staff training in ABC best practices and licensing as described above under the Project Description. The Berkeley Police Department Review of the project concludes that ―the applicant has properly and satisfactorily addressed any potential concerns in their application.‖

2. Live Entertainment and Noise Mitigation: There is concern that live entertainment, including music performances in the open courtyard area together with outdoor dining will generate noise levels that are disruptive to nearby residential uses. Other nearby locations that feature live music venues such as Anna’s Jazz Island and the outdoor restaurant/courtyard (Trumpetvine) connecting Allston and Shattuck Streets have sparked complaints from nearby downtown residents and merchants in the past. The applicant is aware of this history and has given consideration to how this element of the project can be managed to prevent comparable objections. The outdoor space proposed for this use was designed as part of the Brower Center, Oxford Plaza Apartment complex to be an area that would be a gathering place and an opportunity for neighborhood and community events. As discussed above the apartment building immediately adjacent to the courtyard is designed to allow the courtyard to be a gathering place as well as a passageway to an upper level open space. The only operable windows facing the courtyard are for a bathroom and a kitchen. The adjacent wall is well insulated and



the building is designed to mitigate exterior noise levels for a street traffic baseline of approximately 72Db. Analysis: A preliminary acoustical report for the Oxford Plaza Housing component prepared as part of the Environmental Noise Assessment and dated August 3, 2006 is attached for reference. Noise levels generated in the outdoor courtyard by restaurant seating and non-amplified live music during the afternoons and early evenings are expected to be approximately 70-80dB, which at maximum is slightly above that generated by vehicular traffic on Oxford Street. Musicians will play acoustic and stringed instruments, speakers will not be used outdoors and no more than four performers, which may include a vocalist, will be featured at any one time. The applicant has stated that the courtyard area of the restaurant space will not be used for live performances before noon and that there will be no music played indoors or outside after 9 p.m. All doors and windows to the restaurant, which are double-paned, will be closed after 9 p.m. to contain evening noise. A staff manager will be on duty during all hours of operation and a sign with the owner’s name and a phone number for receiving complaints will be posted in a prominent location visible from the street. A Noise Mitigation Plan submitted by the applicant identifies that a professional sound engineer will field test the space following construction and will assist in identifying optimum locations for setting up performances of different types to best mitigate excessive noise levels. Non-permanent, sound-absorbing materials for areas where musicians are set up will be used to mitigate reflected sound. A decibel meter will be used by trained managers, who are on duty prior to and during all performances to keep a record of and better manage sound levels. Besides the Oxford Plaza Apartments, the only other downtown residences in the immediate vicinity of the restaurant location are a few units in the GAIA building on the west side of the space between the Brower Center and the Oxford Plaza Apartments. The Stadium Apartment Building is located mid-block on Allston Street between Oxford and Shattuck Streets but is shielded from the open courtyard by the Brower Center Building. The enclosed portion of the ground floor restaurant space is immediately east of this apartment building. The UC Campus area directly across Oxford/Fulton Street from the outdoor courtyard where live entertainment is proposed is zoned for R-5 use, but is defined by the west edge of Edwards Stadium, which is unlikely to change.

3. Sidewalk Seating: Sidewalk tables and chairs are an obvious complement to the restaurant use and the sidewalk café area is an opportunity to provide a more casual component to the restaurant’s menu. The proposed sidewalk seating is in a widened portion of the public right-of-way at the corner of Oxford and Allston Streets just outside the entry/exit to the restaurant. Concerns include that it not impede pedestrian movement and safety or access and egress from the building in case of a fire or other emergencies. From an operational point of view, there is a



concern for how the sidewalk area seating can be supervised and controlled by the owner to ensure that no alcoholic beverages are taken outside from the bar for consumption in this area.

Sidewalk seating, especially in the vicinity of an establishment serving alcohol in the downtown and elsewhere in the City can be subject to what is colloquially known as ―table surfing‖ where passers-by may actually pick up someone’s drink. No alcohol will be served or allowed in the proposed sidewalk seating area. There are to be no permanent installations for the sidewalk seating. All tables, chairs and other elements will be removed and placed in a secure area of the restaurant after hours. The actual layout and design of the elements to be used in the identified sidewalk seating area have been reviewed by the City’s Zoning Officer in consultation with Public Works staff and the District 3 Police Officer. Under BMC 23E.24.020, sidewalk seating is subject to public review to determine, as discussed in Appendix 1, that it does not interfere with pedestrian or employee traffic or service access to public utility fixtures and that it does not block or obstruct views for drivers. In addition, Section 23E.24.030 makes sidewalk seating subject to a number of conditions that also are included in Attachment 1. . Analysis: The sidewalk area at the corner, as illustrated in the accompanying Site Plan is atypically wide due to the curvature of Oxford Street as it merges with Fulton Street. In addition there is a slight slope from the six-foot wide portion of the sidewalk adjacent to the street curb up to the entry/exit to the restaurant space. The sidewalk café is located adjacent to the building at the upper portion of the public right-of-way and is fully clear of the main line of pedestrian traffic. No permanent elements are proposed to further define the sidewalk tables and seating. Staff is trained to closely monitor the space to insure that no alcohol is taken to this area for consumption. A surveillance camera is located to provide additional monitoring of the space. Public Works staff in consultation with the District 3 Police Officer has reviewed the proposed plan and, as stated in the report filed September 2, 2009, has not found any items of concern Parking: The restaurant project is approved as part of the Brower Center which thoroughly reviewed traffic and parking issues, including a traffic analysis report. The approval and analysis under the EIR includes 3,400 square feet for a full service ground floor restaurant. The actual square feet being used by the restaurant, including the outdoor courtyard totals 3,551 square feet, an increase of approximately 151 square feet. Analysis: Michael Vecchio, the Parking Engineer for the City Transportation Department, has reviewed the application and confirms that the increase in restaurant square footage represents an increase in vehicle trips of approximately 1.6 vehicles in the PM peak hour, which is ―not significant at all.‖ No additional parking should be required. General and Area Plan Consistency:



General Plan Policy Analysis: The 2002 General Plan incorporates Downtown Plan Goals into the Land Use Element. There several policies applicable to the project, the most direct being: 1. Policy LU-16–Downtown Plan: Implement the Downtown Plan and take actions

to achieve the three goals of the Plan: 1) Express and enhance Berkeley’s unique social and cultural character in the Downtown; 2) Create an appealing and safe Downtown environment, with a comfortable pedestrian orientation; and 3) Diversify, revitalize, and promote the Downtown economy. Land Use Policy 1.4 (p. 147): ―Improve the opportunity for Downtown cultural activities. Encourage live performances, noon-time concerts and evening activities. Provide opportunities for Berkeley’s craftspeople and artists. Improve and expand the existing arts and entertainment facilities.‖ Analysis: The Brower Center, including the ground floor restaurant space and the Oxford Plaza Apartments development was approved as an important new catalyst project for the Downtown Area. The mixed-use project implements the currently adopted 1990 Downtown Plan policies for increased economic vitality and diversity. It is almost entirely within the designated Oxford Edge sub-area and is designed to be particularly responsive to special development criteria to ―incorporate open spaces that provide a transition between the Oxford Edge and the more dense areas of the Downtown‖ and to ―maintain visual openness along Oxford Street.‖ Although the restaurant space in the Brower Center is not dedicated specifically to the performing arts, its association with the Center will be an opportunity to feature individual musicians and performers. The Brower Center is expected to attract hundreds of visitors and the associated restaurant’s use of the courtyard for live entertainment has the potential to bolster existing artistic and cultural venues and increase demand for new ones. It is a use that appropriately animates the Oxford Edge of the Downtown. The planned interface between the indoor and outdoor space, including sidewalk seating, will place more ―eyes on the street‖ and will make the restaurant an attractive component of street life within a short distance of the City’s transit center.

VI. Recommendation

Because of the project’s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, Staff recommends that the Zoning Adjustments Board:



A. APPROVE UP #09-1000047 pursuant to Section 23B.32.040 and subject to the

attached Findings and Conditions (see Attachment 1). Attachments:

1. Findings and Conditions 2. Project Plans, updated and received August 11, 2009 3. Photos 4. Requested listing of ABC Permit comparables within 1000 ft. radius of site 5. Notice of Public Hearing 6. Correspondence Received Staff Planner: Gisèle M. Sorensen, [email protected], (510) 981-7410 Contract Planner: Jay W. Claiborne, [email protected], (510) 841-2163)

mailto:[email protected]

2200 oxford street - berkeley, california · 8.10.2009 · area. all construction is limited to...

Documents