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TO: BOARD OF SUPERVISORS ••— �`' Costa
FROM: HARVEY E. BRAGDON
.s County
DIRECTOR OF COMMUNITY DEVELOPMENT
DATE: July 9, 1993 s'a'
COUPI'f't
SUBJECT: Appeal by Dr. Lawrence Thal of an Administrative Decision Concerning
Denial of Building Permit Request for an Office Addition at #291
Arlington Avenue, Kensington area.
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Deny appeal because the proposed addition would be taller than
permitted by a 1989 agreement between Dr. Thal , the developer, and
Mr. Sidney Rastegar, the owner of a residential lot immediately
uphill of the site.
FISCAL IMPACT
None.
BACKGROUND/REASONS FOR RECOMMENDATIONS
In 1983 , Dr. Thal filed a development plan application (File #3014-
83) with the Community Development Department to provide for a
three-story addition to a single-story office building at #29.1
Arlington Avenue in the Kensington area. Public notices of the
application were issued and a hearing held before the Zoning
Administrator. After concluding the hearing, the Zoning Adminis-
trator approved the project. No appeals of the decision were
issued so the approval stood as rendered. Subsequently, Dr. Thal
obtained a building permit for the project and commenced the
project.
At that time, the uphill property owner, Mr. Sydney Rastegar,
called to the attention of the county a defective 20-foot tall
retaining wall which is located on the Rastegar property, but only
two feet from the proposed construction on the Thal site. Mr.
Rastegar also expressed concern with the impairment of his view by
the project.
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMM D ION O OARD COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON July 20, 1993 APPROVED AS RECOMMENDED OTHERAA
SEE ADDENDUM FOR BOARD ACTION.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT 1V TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
I. SUPERVISORS ON THE DATE SHOWN.
Contact:Robert Drake - 646-2091
Orig: Community Development Department ATTESTED July 20, 1993
cc: Dr. Lawrence Thal PHIL BATCHELOR, CLERK OF
Sydney Rastegar THE BOARD OF SUPERVISORS
Building Inspection Dept. , Fred Fung AND COUNTY ADMINISTRATOR
County Counsel
BY , DEPUTY
Due to safety concerns with the possible failure of the wall, the
Building Inspection Department issued a stop-work order on the
project so that the wall could be studied and necessary wall repair
measures provided for.
Further, in 1989 staff reported to the Board on an informal
agreement between Thal and Rastegar allowing for a reduced-scale
project. Among other provisions, the agreement allowed the two-
story addition to proceed if the height does not exceed the
uppermost peak of the existing single-story building. Staff
reported on this agreement to the Board of Supervisors on January
31, 1989 .
Since 1989 , the two parties have been involved in litigation
concerning who would be responsible for repairing the retaining
wall. It is staff's understanding that a draft settlement
agreement was being considered by the two parties.
RECENT ACTIVITY
Recently, Dr. Thal submitted revised construction plans providing
for a smaller-scale building than was approved in 1983 . Still , the
height of the building ranges from 42. to 13 feet taller than the
existing building.
On May 17, 1993 staff forwarded a copy of the revised plans to Mr.
Rastegar. He responded by indicating that he still objected to the
plans because they failed to comply with, the design limitations of
the 1989 agreement.
In a letter dated May 27 , 1993 staff advised Dr. Thal that the
request for a building permit could not be approved because the
plans are inconsistent with the 1989 agreement.
THAL APPEAL
In a letter dated June 23 , 1993 Dr. Thal has appealed the County
administrative decision to deny his request for the proposed
office. He feels that Mr. Rastegar could be more cooperative in
resolving this issue.
DISCUSSION
The issue is the same that staff considered prior to the Thal
appeal. Even though the scale of the addition has been reduced, it
is still taller than the limit contained in the 1989 agreement on
which staff reported to the Board. Further, Mr. Rastegar has
indicated that the addition is unacceptable to him.
In view of these circumstances, the appeal of Dr. Thal should be
denied. Should the Board take this action, the applicant could
reapply for development plan approval of an office addition either
as presently proposed (2 - 3 stories) or as originally proposed (3
stories. The application would be subject to a noticed public
hearing for which Mr. Rastegar and other nearby property owners
would receive notice.
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7/9/93
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ADDENDUM TO ITEM NO. H.5
JULY 20, 1993
The Chair convened the hearing on the appeal of Dr. Lawrence Thal of an
administrative decision concerning denial of a building permit request for an office
addition at 291 Arlington Avenue, Kensington area.
. Dennis Barry of the Community Department provided the Board with a history of
the site and advised that staff is recommending that the Board deny the appeal
because the proposed addition would be taller than that permitted by the 1989
agreement between Dr. Thal and Mr. Rastegar, the owner of the residential lot
immediately up hill from the site.
The Chair opened the hearing.
Dr. Lawrence Thal, (the appellant) 291 Arlington Avenue, Kensington, advised
that the proposed addition shown on the right side of the drawing displayed by staff is
necessitated in order to have a secondary egress from that building--a safety
requirement that was identified by the Kensington Fire Department. Dr. Thal referred to
a Court ordered settlement that allows the construction to proceed in accordance with
the original plans approved by the County for which the permit was originally issued. In
the event that the Board is unable to grant his appeal, he requested that this matter be
referred back to staff for further review.
S. Rastegar, 272 Amherst Avenue, Kensington, advised of his agreement to
allow Dr. Thal to continue with his project with a two story height limit no higher than
the existing plan with the exception that the third story stairwell structure that goes 13
feet higher be eliminated from the plans altogether.
Robert M. Miller, 270 Amherst Avenue, Kensington, spoke on the impact of the
third story addition.
Greg Mulligan, 277 Amherst Avenue, Kensington, also spoke in support of the
position expressed by Mr. Rastegar.
All persons desiring to speak were heard.
In response to comments of County Counsel, Mr. Barry advised that in reviewing
the files on the original plan, it appears that the proposed addition that is before the
County at this point is not entirely consistent with the plans that were previously
approved (although the applicant has indicated that he has expended funds on the
foundation), the building permit that he's seeking approval of does not specifically
correspond to the development plans that were approved.
In its discussion, there was agreement among Board members to continue the
hearing and to refer this matter back to staff for further review.
Therefore, IT IS BY THE BOARD ORDERED that the hearing is CONTINUED to
September 21, 1993, 2 p.m. , in the Board Chambers.
IT IS FURTHER ORDERED that Community Development Department staff is
REQUESTED to further review the plan as well as the third story access and report to
the Board on September 21, 1993.
2 . 12
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on _January 17 , 1989 , by the following vote:
AYES: Supervisors Powers , Fanden, Schroder, McPeak, Torlakson
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: Construction at 291 .Arlington Avenue, Kensington
The Board on December 13 , 1988 continued to this day its
consideration of the request of S. Rastegar, Kensington, for
investigation of a construction project that adds square footage to
a commercial building at 291 Arlington Street, Kensington.
The Board received a status report, dated January 13 , 1989 ,
from Fred Fung, Senior Structural Engineer of the Building
Inspection Department, noting that the Building Inspection
Department is continuing a stop work order on the construction
site because on safety concerns .
Harvey Bragdon, Director of Community Development, advised
that his Department has received additional information on the
project which needs to be evaluated. He requested continuing this
matter to January 31 , 1989 .
The Chair noted that he had several requests to speak on this
matter. It was agreed that the Director of Community Development
would try to get in contact with the speakers as to the findings of
his investigation.
Board members being in agreement, IT IS BY THE BOARD ORDERED
that this matter is CONTINUED to January 31 , 1989 .
1 her^by cnrtify that this Is a true and co-r-c ^c^• of
an action taken and entered on the mir..ute:: cf :ne
Board of'Supervlsors on the date shorn.
ATT ES i r-D: J ;?' �!
PHIL B CHELOR, ierk of the Board
of Supervisors and County Adminlstratcr
cc: Mr. Rastegar
272 Amherst Avenue gr Q �'� , Deputy
Kensington
Director, CDD
Director, BI
County Counsel
y.
CONTRA COSTA COUNTY
BUILDING INSPECTION DEPARTMENT
Inter - Office Memo
TO: Board of Supervisors Date : 1/13/89
FROM: Fred Fung, Senior Structural Engineer �J
SUBJECT: Status report on proposed construction at 291
Arlington Avenue , Kensington
Building permit #146859 was issued on August 24, 1988 for the
proposed construction. The foundation is partially done . There
is currently a stop work order placed on the remainder of the
construction by the Community Development Department and the
Building Inspection Department. We have informed Dr. Thal, owner
of the proposed construction, that the Building Inspection
Department's portion of the stop work order will remain in effect
until a proper engineering investigation and possible repair on a
retaining wall are done .
The retaining wall in question is located between Dr . Th.al ' s lot
(291 Arlington Avenue) on the downhill side and Mr . & Mrs .
Rastegar's lot (272 Amherst Avenue) on the uphill side . The
retaining wall is approximately 20 feet high and is approximately
2 feet away from the proposed construction on Dr. Thal 's lot .
On December 5 , 1988 , Mr. William Nelson, Supervisor Inspection
Services, and I visited the construction site . The retaining wall
appeared to consist of 3 distinct portions . The bottom portion,
roughly 14 feet in height, appeared to be the original concrete
retaining wall . The middle portion, roughly 4 feet in height,
appeared to be an extension constructed at a later date . The top
portion , roughly 2 feet in height, appeared to be an even later
extension . There was a moderate crack on the right side of the
retaining wall (looking uphill) . The crack appeared to be a
fairly old crack . We could not find any evidence to indicate that
the constructions of the 2 extensions were preceded by any
strengthening of the retaining wall then in place . Consequently,
the retaining wall may be grossly overstressed because of the 2
extensions .
According to Dr. Thal , his surveyor has determined that the
retaining wall is entirely located in Mr. Rastegar's lot at the
ground level , but the wall is only partially in Mr. Rastegar's lot
at the top of the wall . This indicates a leaning and possibly
overstressed retaining wall .
The stop work order by this Department is based on consideration
that if the retaining wall should fail , lives and properties in
its vicinity will be in jeopardy .
2 5
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on _ January 31 , 1989 by the following vote:
AYES: Supervisors Powers, Fanden, McPeak, Torlakson and Schroder
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: Construction at 291 Arlington Avenue, Kensington
The Board on January 17 , 1989 , on the recommendation of the
Director of Community Development, continued to this date and time its
consideration of the request of S. Rastegar, Kensington, for
investigation of a construction project that adds square footage to a
commercial building at 291 Arlington Street, Kensington, to allow time
to evaluate additional information staff had received.
Mr. Karl Wandry, Assistant Director, Community Development
Department, reported that staff had met with Mr. Rastegar as well as
Dr. Thal to try to resolve the issue between them relative to the
concerns, stating that Mr.. Rastegar' s property is immediately behind
Dr. Thal' s and is separated by a wall that is approximately 25 feet
high. Mr. Wandry noted that there was a question as to the approval
process, and staff had suggested that there might be a middle ground
that everyone could reach. Mr. Wandry advised that the two principals
had reached an agreement, which is spelled out in his memo report to
the Board dated January 27 , 1989, a copy of which is attached hereto
and by reference incorporated herein.
Mr. Wandry noted that staff had tried to contact other
persons involved; and that after the Board' s December 13 , 1988
meeting, that he did have a meeting with members of the surrounding
community and their primary concern, aside from Mr. Rastegar' s
immediate concerns, was that the parking be resolved, and they were,
in general, in agreement to a two-story addition to the back of that
building. He noted that the two-story question is resolved through
this agreement and also the parking is resolved. He noted that his
report recommended that the Board discontinue its proceedings on this
matter, however, he suggested that the Board may wish to keep open the
question of the resolution of the wall and have Building Inspection
report back to the Board as to what that resolution is when it finally
does take place.
Mr. Sidney Rastegar, 272 Amherst, Kensington advised that he
has met with Mr. Bragdon' s office and they have resolved the issues as
far as he is concerned. He asked "that the issue be kept open at
least for 90 days and have the issue brought up again May 2, 1989 and
at that time if the applicant has complied with all the requirements,
then the process could go ahead, and if the issues have not been
resolved, then the Board of Supervisors appeal the whole process
altogether. "
Mr. George Mulligan, 277 Amherst Avenue, Kensington, advised
that he lived in close proximity to the development, and that he was
very concerned about the parking and requested that the number of
doctors occupying the proposed building be limited and the permit be
held up until the applicant provides additional parking spaces.
Mr. Lawrence Schmelzer, 267 Amherst, Kensington, indicated
that he agreed with the previous speakers.
Dr. Lawrence Thal, 291 Arlington Avenue, Kensington, owner
of the building in question, indicated that he generally accepted the
• - .
compromise that Mr. Wandry has worked out between all the interested
parties , however he felt it unfair at this point to require a builder
to obtain additional public hearings, especially since he had had
those hearings, approvals were granted, there were no appeals to those
approvals and he has already constructed the foundation under the
permit that was originally issued.
He stated that he agreed to the compromise agreement with
the anticipation that Mr. Rastegar would cooperate with him in
resolving any concerns that might exist if later he elects to come
back and request public hearings on a third story, and he also would
assume that Mr. Rastegar would cooperate in resolving the issue of
repairs to his retaining wall. He noted that it would not be
satisfactory to him to get the Board' s concurrence to continue with
the two-story structure if Mr. Rastegar never does anything about
repairing that wall or allowing those repairs to be made. He stated
that he thought keeping this open until May 2, 1989 as suggested by
Mr. Rastegar, except with respect to repairs to the wall, would be
unfair. He stated that if the Board agrees that he can begin with the
two stories, then he needs to have the architect revise the plans for
the two rather than the three-story structure, commenting that he
would not be anxious to again redesign the project knowing it is still
open to some future determination. Dr. Thal noted that the project
had been redesigned six times since the original development plan was
approved due to various requirements of the County and the loss of the
application, changes in seismic requirements, and fire codes. He
declared that the request for additional parking is an impossible
request in that there is no place for additional parking, noting that
the project was redesigned to eliminate the necessity for additional
parking by reducing the number of additional feet of retail space.
Mr. Robert M. Hansen, 24 Kerr Avenue, Kensington, Chairman
of the Zoning Committee of the Kensington Improvement Club, appeared
in favor of Dr. Thal' s application, stating that through no fault of
his own, but because of fire code and seismic code changes, Dr. Thal
had to revise his plans several times at a fairly substantial cost to
him, and that it appeared to be unfair for Dr. Thal to be faced with
the possibility of reopening the hearing.
The Chair noted for the record that he had received cards
with written comments regarding various aspects of parking and
building permit conditions from:
Robert Miller, 270 Amherst Avenue, Kensington,
Catherine Creighton, 257 Amherst Avenue, Kensington,
Ruth Toussig, 193 Highland Boulevard, Kensington,
Shirley Todd, 261 Amherst Avenue, Kensington,
Barbara Adair, 251 Amherst Avenue, Kensington
Supervisor Powers explained that the area was very old, had
narrow streets, and was very built out, and that people in that
community are very sensitive because of the effects on traffic,
parking and height of structures in the community.
Supervisor Powers noted that the parties appear to have come
to a conclusion that seems to be appropriate. He declared that he
believed the wall to be a mutual issue and that it is an issue of
community safety and needs to be dealt with early. He stated that he
did not think the process should be held up very long and that he did
agree with 90 days to keep the wall issue alive to be sure that it is
resolved. He advised that he believed that Dr. Thal should be allowed
to to proceed and that staff should come back in 90 days with a status
report on the wall issue.
Mr. Wandry recommended that at the time the wall issue is
resolved, that a report from Building Inspection be brought back to
the Board for its information, and that no construction take place
until it is resolved.
Supervisor Powers moved the staff report and added that
there be a 90-day review and report on the wall issue.
IT IS BY THE BOARD ORDERED that the January 27 , 1989 report
from the Community Development Department is ACCEPTED, and the
Director of Building Inspection and the Community Development staff
are DIRECTED to report back to the Board in 90 days relative to the
status of the retaining wall issue.
I hereby certify that this is a true and correct copy of
an action !a`;rn ..^n-i cr.i-r:4 ui t`..e rl nute: of the
Board cl cr.tier datc st:o::�.
ATTESTED*_-
Pi•liL.LAT
i:<4:the�lCa7i!
of Superv! ors d ccu:ty;.dministrator
By ,Deputy
cc: Community Development
Building Inspection
County Counsel
County Administrator
Dr. Lawrence Thal
Mr. Sidney Rastegar
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Board of Supervisors DATE: January 27, 1989
FROM: Harvey E. Bragdon, Director
SUBJECT: 291 Arlington Avenue, Kensington
Staff has met with Dr. Thal and Mr. Rastigar on several occasions in an attempt
to resolve the question of the construction of a three-story addition at 291
Arlington Avenue, Kensington. The most recent meetings were held on January
25th and January 26th respectively.
Agreement between the two parties has been reached in order for the development
to proceed at this time. The agreement provides that:
1. Dr. Thal would be allowed to proceed with construction of a two-story
building addition at a height not to exceed the uppermost peak of the roof
of the existing building.
2. Access to the rear of Dr. Thal 's property will be allowed for Dr. Thal 's
use and emergency access only. This will be accomplished through the
placement of a secured gate at Dr. Thal 's property line consistent with the
requirements of the Kensington Fire District.
3. The number of doctors occupying 291 Kensington will be the same as of the
date of the hearing on June 6, 1983.
4. Dr. Thal has the option to make application for Development Plan approval
for a third floor addition.
5. No construction will take place nor will the stop work order placed by the
Building Inspection Department be removed until the Building Inspection
Department is satisfied as to the adequacy of the retaining wall located
between the two principal 's properties.
This agreement is satisfactory to the two principal parties therefore we
recommend the Board of Supervisors accept this report and discontinue
proceedings relative to it's December 13, 1988 action.
KLW/df
291arl .mem
E.
Community Contra Harvey of Bragdon
Director of Community Develonmant
-Development Costa
Department C•�)� �nty
County Administration Building
651 Pine Street
4th Floor, North Wing
Martinez, California 94553-0095
Phone: (510) 646-2091 P
sr'� COt1Kr
May 17, 1993
Scott and Natalie Rastegar
P.O. Box 9918
Berkeley, CA 94709
Dear Mr. and Ms. Rastegar:
RE: PROPOSED OFFICE ADDITION (THAL)
292 Arlington Avenue, Kensington
It is my understanding that you have been involved in litigation
concerning an office addition project at 291 Arlington Avenue by
Dr. Lawrence Thal which abuts your property at 272 Amherst
Avenue. It is also my understanding that you may be considering
a settlement with Dr. Thal that would void any objections you
might have with his project.
Recently, Dr. Thal has submitted revised construction plans for a
smaller profile office project than had previously -been approved
by the County. Before clearing a building permit, we wished to
share with you a copy of the building elevations of the revised
plans to provide you an opportunity to comment on the plans.
Attached are copies of the proposed east and west elevations for
the project. A complete set of construction plans is also
available at our office for your review_.
The purpose of this letter is to notify you that we will consider
any written comments on the project from you, provided they are
delivered to this office by no later than 5:00 p.m. , Monday, May
24th, 1993. Any objections should be made specific. You may
forward your response to us via our FAX number, 646-2254 .
Should you have any questions, please call me at 646-2091 .
Sincerely
iW,
ROBERT H. DRAKE
Senior Planner
i
Att.
cc: Fred Fung, Building Inspection Dept.
Dr. Lawrence Thal
File #3014-83
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Community Contra Harvey of ommurt
ragdoDirector of Community Development
Development Costa
Department County
County Administration Building
651 Pine Street
4th Floor, North Wing
Martinez, California 94553-0095 `.
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Phone: -2091 510) 646-2091 '" -
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,
May 27, 1993
Dr, Lawrence Thal
291 Arlington Avenue
Kensington, CA 94707-1487
Dear Dr. Thal:
RE: PROPOSED OFFICE ADDITION (Permit #146859)
This letter is a follow-up to our conversation earlier today.
The purpose of this letter is to inform you that we are unable to
clear your proposed office addition for issuance of a building
permit.
The reason for this action is that the project does not comply
with the design standards reviewed with the Board of Supervisors
in 1989 relative to this project. See attached memo dated
January 27, 1989. That memo indicates that the addition would
not exceed the height of the uppermost peak of the roof of the
existing building. The proposed three-story addition would
exceed the height of the existing structure by 42 to 13 feet.
Before making this decision, staff reviewed the matter with the
adjoining property owner, Mr. Rastegar, who indicated that he
would not support any project with a larger profile than the
maximum height limits identified in the aforementioned memo.
Should you choose to revise your plans to conform with these
standards, we are prepared to clear a building permit.
Alternative Actions
To continue to pursue your proposed three-story development,
there are two possible courses of action. First, you can appeal
this administrative decision to the Board of Supervisors. Such
an appeal must be filed with the Clerk of the Board by no later
than June 27, 1993. The appeal must be accompanied by a filing
fee of $125. The appeal letter must also include certain
information. Before making a submittal, please contact Anne
Cervelli of the Clerk of the Board office (646-2373) to advise
you of the necessary submittals.
rJ:
we request that you attach copies of selected exhibits from your
construction plans at a reduced scale (1111 x 1711) to your appeal
letter. These exhibits (1, 2, 4, 5, & 12) pertain to the site
plan, floor plans, elevations, and proposed buttressing of the
existing retaining wall. Please also forward a copy of your
appeal letter directly to this office.
The second approach would be to submit a new application for
development plan approval of the project. The basic fee would be
$2900 (plus time & materials after 1200 of fee expenses have been
exceeded) . State law also requires that we collect a $25 fee for
administration of the Fish & Game program. The application would
be scheduled for noticed public hearing before the Zoning
Administrator. Should you elect to pursue this approach, to
ensure speedy review of your application, please contact me in
advance of your submittal so that I might review the elements of
your submittal package for completeness.
Should you have any questions, please call me at 646-2091.
Sincerely,
ROBERT H. DRAKE
Senior Planner
Att. 1/27/89 memo to the Board of Supervisors
cc: Scott and Natalie Rastegar
Fred Fung, Building Inspection Dept,
Anne Cervelli, Clerk of the Board
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CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
TO: .~.. ~ .. Supervisors.~.. ~
DAT
FROM: Harvey E. Bragdon, Dir c 0
SUBJECT: 291 Arlington Avenue nsin o
Staff has met with Dr' Thal and Mr. Ra$tigar on several occasions in an attempt
to resolve the question of the construction of a three-story addition at 291
Arlington Avenue, Kensington. The most recent meetings were held on January
25th and January 26th respectively.
° Agreement between the two parties has been reached in order for the development
to proceed at this time. The agreement provides that:
l' Dr' Thal would be allowed to proceed with construction of a two-story
building addition at a height not to exceed the uppermost peak of the roof
of the existing building'
2' Access to the rear of Dr' Thal 's property will be allowed for Dr' Thal /s
use and emergency access only. This will be accomplished through the
placement of a secured gate at Dr' Thal 's property line consistent with the
requirements of the Kensington Fire District.
3' The number of doctors occupying 291 Kensington will be the same as of the
date Of the hearing on June 6, 1983.
4' Dr. Thal has the option to make application for Development Plan approval
for a third floor addition'
5' No construction will take place nor will the atop work order placed by the
Building Inspection DepartmenC be removed until the Building Inspection
Department is satisfied as to the adequacy of the retaining wall located
between the two principal 's properties.
This agreement is satisfactory to the two principal parties therefore we
recommend the Board of Supervisors accept this report and discontinue
proceedings relative to it' s December 13, 1988 action.
KUJ/df
29larl 'mem
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