HomeMy WebLinkAboutMINUTES - 09112001 - D.3 3
TO: BOARD OF SUPERVISORIS �t�'ti •°'
Contra
FROM: DENNIS M. BARRY AICP Costa
COMMUNITY DEVELOPMENT DIRECTOR County _
.•fir
DATE: SEPTEMBER 11 , 2001
SUBJECT: DANNY SCHER (OWNER/APPELLANT) HEARING ON AN APPEAL OF AN
ADMINISTRATIVE DECISION OF THE COMMUNITY DEVELOPMENT DEPARTMENT
THAT THE USE OF THE STAGE AND AMPHITHEATRE FOR MUSICAL CONCERTS
IS NOT A LEGAL NONCONFORMING USE. THE PROPERTY IS LOCATED AT 500
COVENTRY ROAD IN THE KENSINGTON AREA OF THE COUNTY (APN: 571-160-
017,005), COUNTY FILE #Z1019126.
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1. UPHOLD the Community Development Department's decision that the use of the
stage and amphitheatre for concerts is not a legal nonconforming use and DENY the
appellant's appeal of that decision.
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMIT EE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON September 11, ,2001 APPROVED AS RECOMMENDED OTHER XX
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The Board continued this matter to September 25, 2001 at 2:00 p.m.
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND
XX UNANIMOUS(ABSENT--- ) CORRECT COPY OF AN ACTION TAKEN AND
AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF
ABSENT: ABSTAIN: SUPERVISORS ON THE DATE SHOWN
Contact: Aruna Bhat335-1219 ATTESTED September 11, 2001
cc: Catherine Kutsuris, Deputy Director JOHN SWEETEN, CLERK OF THE BOARD OF
Danny Scher,appellant SUPERVISORS AND COUNTY ADMINISTRATOR
Diana Silver, Deputy County Counsel -
Michael Angelo Silva, Property Conservation Division, BID Q
BY tet/ , DEPUTY
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September 11, 2001
Board of Supervisors
File 4ZI019126
Page 2
FISCAL IMPACT
The applicant/appellant has paid the initial appeal fee of $125. The applicant will be required to
pay all staff time associated with the processing of this appeal.
BACKGROUND
During the early part of this year, the County Building Inspection Department received several
complaints regarding the construction of an amphitheatre on the subject property. Building Inspection
Department staff was at the site and informed the property owner to contact the Community
Development Department to determine the legality of the stage and amphitheatre.
The property owner, Mr. Scher, submitted a letter to the Community Development Department on April
3, 2001 requesting that Community Development Department concur with him and grant "legal
nonconforming" status for the amphitheatre and stage. In a letter dated April 23, 2001 , the
Community Development Department determined that the use of the stage and amphitheatre for
musical concerts is not a legal nonconforming use (letter attached). The decision was based on a
review of all the information submitted by Mr. Scher. Lori Sun-Look, on behalf of Mr. Scher, appealed
the Department's decision by a letter dated May 6, 2001 . Supplemental letter expanding the appeal
topics was submitted by Edward Shaffer, Mr. Scher's attorney (letter attached).
APPEAL DISCUSSION:
LEGALITY OF THE STAGE AND AMPHITHEATRE
The property at 500 Coventry Road in Kensington is Zoned R-6 (single-family residential district). To
establish a "legal nonconforming use" (grandfather) status of the parcel, sufficient information clearly
indicating that the use was established prior to the zoning of the property and continued without
interruption, expansion or enlargement is required (Contra Costa County Ordinance Code Section 82-
8), from the time established to the present time (Contra County Code Ordinance Code Section 82-8).
Three declarations under oath from people with personal knowledge of the property and its uses from
March 1947 to present are usually required by the Community Development Department as proof of a
legal non-conforming use of property. A nonconforming use is a lawful use existing on the effective
date of a new zoning restriction that has continued since that time without conformance to the
ordinance.
According to the information submitted (three declarations and letter from Mr. Scher), the stage and
amphitheatre have been in existence since the 1920's, built for the use of the family,which owned and
lived on the property. The information submitted documented a number of "events" that were held at
the site. These include weddings, anniversaries and dance recitals.The notarized statement from Ms.
Louise Hildebrand Klein states that concerts and other local social and political functions were also
held on stage. The other two statements did not mention any political functions being held on the
stage. There was, and still is, no evidence submitted to support the contention that the property has
September 11, 2001
Board of Supervisors
File#Z1019126
Page 3
been used for activities commercial in nature, such as the proposed musical concert, which was
advertised for this year. Events such as weddings, anniversaries, birthday parties and dance recitals
are considered accessory to the residential use of the property. Several adjacent property owners
with knowledge of the subject property have submitted letters stating that the property was never used
for musical concerts or other non-family events.
LEGALITY OF FUNDRAISING ACTIVITIES
The attorney for Mr. Scher has argued that the constitutional protection of free speech allows political
and charitable fundraising. The letter states that activities cannot be deemed "commercial" based on
the fact that they would be charging people to attend the events. This does not address the issue.
There is no distinction, for purposes of zoning, between "commercial" or charitable or political
fundraising. This is not a First Amendment issue. Rather, the question is whether the proposed use
of the property, i.e.; for fundraisings, musical concerts, is a use normally accessory, or auxiliary to a
detached single-family dwelling in an R-6 single-family residential district (Contra Costa County
Ordinance Code Section 84-4.402. (1). Any use that is not specified in Article 84-4.4 of the County
Ordinance Code is not a permitted use. Some other uses may be allowed with a land use permit,
such as certain community buildings and philanthropic or eleemosynary institutions in this zoning
district (see Contra Costa County Ordinance Code Section 84-4.404). Therefore, it is not a question
of abridging free speech rights; it is a lawful exercise of the County's constitutional police power to
establish and enforce zoning ordinances.
Conducting musical concerts and fundraising activities are not considered normally accessory to a
single-family residence. Maintaining the character of residential neighborhoods is a proper exercise of
zoning and police power. Reserving land for single-family residences preserves the character of
neighborhoods. The courts have consistently upheld zoning regulations giving the police power a
broad and liberal construction. In 1974, the U.S. Supreme Court in Village of Belle Terre v. Boraas,
stated:
"A quiet place where yards are wide, people few, motor vehicles restricted are legitimate
guidelines in a land use project addressed to family needs. This goal is a permissible one
within Berman v. Parker. The police power is not confined to elimination of filth, stench and
unhealthy places. It is ample to lay out zones where family values, youth values, and the
blessings of quiet seclusion and clean air make the area a sanctuary for people." (94 SCt
1536).
CONCLUSION
The stage and the amphitheatre have been in existence on a smaller scale and for personal, family
related uses since the early 1920's. Documentation submitted by Mr. Scher indicates that a number of
"events"were held at the site. However, these events are those that are considered accessory to the
residential use of the property. There is no evidence submitted to support the contention that the
property has been used for activities that are commercial fundraising or charitable or otherwise of a
September 11, 2001
Board of Supervisors
File 4ZI019126
Page 4
non-family character, unrelated to the single-family dwelling unit, continuously since 1947. Staff
recommends that the Board uphold the Community Development Department's decision that the
proposed use of the stage and the amphitheatre do not constitute legal nonconforming use of the
property and deny Mr. Scher's appeal.
M A U ACLU of Northern California
BARK Chapter • Berkeley - Albany - Richmond - Kensington
American Civil liberties Onion PO Box 11141, Berkeley CA 94712-2141 • 510-464-1330
August 31, 2001
Contra Costa County Board of Supervisors
c\o Clerk of the Board
651 Pine Street, Room 106
Martinez, CA 94553
Re: Appeal of Staff Decision Regarding 500 Coventry Road, Kensington
To The Supervisors of the County of Contra Costa:
We have reviewed the Community Development Department's recommendation
with respect to Danny Scher's appeal regarding the use of his property for charitable
fundraising events. We are concerned that the recommendation and the decision are an
infringement of free speech rights protected by the Constitutions of the United States and
the State of California.
We are particularly concerned with the broad language in the recommendation
stating that "fundraisings" and "fundraising activities" may not beheld on property zoned
for strictly residential use. All citizens' rights to freedom of speech and freedom to
associate with others would be seriously compromised if the Board finds that Mr. Scher
cannot host fundraising events in his own home.
We urge the Board to reject any ruling on this matter that would effectively
prohibit all citizens from gathering in the privacy of their own home for personal,
political or charitable purposes that include fundraising activities. Such a ruling would be
an impermissible restriction of free speech rights. Thank you for your consideration of
this important principle in making your decision on this matter.
On behalf of the Board of the Berkeley-Albany-Richmond-Kensington Chapter of the
American Civil Liberties Union of Northern California,
David Carducci
Board Member
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Office of the County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)646-1078
Date: September 6, 2001
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To: Board of Supervisors
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From: Silvano B. Marchesi, County Counsel
By: Diana J. Silver, Deputy County Counsel
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Re: Item D.6, September 11,2001 Board Agenda: Appeal of Daniel Scher re stage and
amphitheatre, 500 Coventry Road, Kensington
I
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SUMMARY. The decision by the Community Development Department whether to
allow musical concerts to occur on the Scher property involves the exercise of the County's
constitutional police power to regulate zoning and does not involve First Amendment issues of
free speech, free expression, or freedom of assembly. Therefore, whether the intended use of the
stage and amphitheatre is for political; commercial, non-profit or other purposes is not relevant. It
is the use of the property which is in issue, not the purpose or contents of the regulated use. As
the proposed use does not appear to be a permitted use in the single family residential zoning
district in which the property is situated, nor does the record indicate that the proposed use was
previously established by a prior legal non-conforming use, we conclude that the proposed use of
the Scher property for musical concerts is not allowed under the applicable zoning without a land
use permit. We do not advise whether, submittal of a land use permit application will result in its
approval or denial. That decision is subject to a noticed public hearing process as mandated by
state statute.
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BACKGROUND. This office has been asked by a member of the Board of
Supervisors to advise the Board of Supervisors concerning the First Amendment argument raised
in attorney Edward Shaffer's letter oflMay 29, 2001 on behalf of Mr. Scher, in support of the
proposed use of the residentially zoned property, including a stage and amphitheatre on the
property, for political and charitable fundraising events.
We have not been requested to advise the Board whether the Community
Development Department's decision that the proposed use does not qualify as a prior legal non-
conforming use is supportable; however,based on discussions with staff of that department and
review of Deputy Director Catherine Kutsuris' letter to Mr. Scher of April 23, 2001, in which it
was determined that the use of the stage and amphitheatre for musical concerts was not a legal
non-conforming use, we concur in that determination, absent any evidence submitted in support of
Mr. Scher's contention that such use had been established prior to zoning of the property. In
addition,we were informed by Mr. Shaffer at a meeting held on June 25, 2001 in Supervisor
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Board of Supervisors
September 6, 2001
Page 2
Gioia's office, attended by Mr. Scher and staff of the Community Development Department, that
appellant was no longer requesting recognition of prior legal non-conforming status and would
base his appeal solely on First Amendment grounds.
DISCUSSION. The applicable zoning for this property is single family residential
(R-6). Generally, only those uses normally auxiliary to a single family residential use are allowed
in this district(C.C.C. Ord. Code § 84-4.402, copy attached). Other uses may be allowed upon
issuance of a land use permit, e.g., eleemosynary and philanthropic institutions, community
buildings and clubs and activities of a quasi-public, social or recreational character(C.C.C. Ord.
Code § 844.404, copy attached). Before a land use permit may be issued, an application must be
submitted and considered in a noticed public hearing(Gov. Code § 65905, C.C.C. Ord. Code §
26-2.2004). A number of findings must be made relating to consistency with general plan policies
and compatibility with the surrounding neighborhood. (C.C.C. Ord Code § 26-2.2008, copy
attached).
The County's power to enact and enforce planning and land use regulations in the
unincorporated area of the County derives from the police power conferred upon it by California
Constitution Article XI, section 7:
"A county or city may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in conflict with
general laws."
The courts have liberally construed this grant of police power to counties and cities,
in the field of land use regulations. The California Supreme Court stated in Candid Enterprises,
Inc. v. Grossmont Union High School Dist. (1985) 39 C 3d 878, 886:
"Under the police power granted by the Constitution, counties and cities
have plenary authority to govern, subject only to the limitation that they
exercise this power within their territorial limits and subordinate to state
law. Cal. Const., Art. X1, §7. Apart from this limitation, the police
power of a county or city under this provision is as broad as the police
power exercisable by the legislature itself. " (Emphasis added.)
The United States Supreme Court likewise has taken a broad view of the application
of local police power to zoning regulations. It has consistently upheld such regulations and given
the police power a broad and liberal construction to protect the public health, safety and welfare
of the local jurisdiction's residents. (Village of Euclid v. Ambler Realty Co. (1926) 47 S.Ct. 114
and Berman v. Parker(1954) 75 S.Ct. 98). (Berman v. Parker(1954) 75.S.Ct 98). In 1974, the
United States Supreme Court in Village of Belle Terre v. Boraas (1974) 94 S.Ct. 1536, stated:
Board of Supervisors
September 6, 2001
Page 3
"A quiet place where yards are wide, people few, and motor vehicles
restricted are legitimate guidelines in a land use project addressed to
family needs. This goal is a permissible one within Berman v. Parker.
The police power is not confined to elimination of filth, stench, and
unhealthy places. It is ample to lay out zones where family values, youth
values, and the blessings of quiet seclusion and clean air make the area a
sanctuary for people."
Reserving land for single-family residences preserves the character of neighborhoods
(City of Edmonds v. Oxford House, Inc. (1995) 115 S.Ct. 1176). Maintaining the character of
residential neighborhoods is a proper purpose for a zoning ordinance (Ewing v. City of Carmel-by-
the-Sea, 234 Cal.App.3d 1579 (1991): ordinance prohibiting transient commercial use of single-
family homes upheld based on the existence of a reasonable relationship to the public welfare).
In fact, "a substantial amount of vagueness is permitted in California zoning ordinances..."(Novi
v. City of Pacifica (1985) 169 Cal. App. 3d 678, upholding the city's land use ordinance which
precluded uses that were detrimental to the"general welfare".) Similarly, broad latitude is given
to cities and counties in exercising aesthetic control (Metromedia, Inc. v. City of San Diego (1980)
26 Cal. 3d 848; see also Ehrlich v. City of Culver City(1996) 12 CalAth 854). In another case, a
city's decision during the design review process to deny a building permit for a proposed house
that was "not in character"with other homes in the neighborhood was upheld by the appellate
court(Guinnane v. City of San Francisco Planning Commission (1989) 209 Cal.App.3d 732).
Even when free speech rights have been involved, time.place and manner restrictions
have been upheld when narrowly tailored to serve a significant government interest(Union of
Needletrades v. Superior Court(1997) 56 Cal. App. 4'h 996; see also, Gaudiya Vaishnava Soc'y v.
City& County of San Francisco, 900 F 2d 1369)(9'h Cir. 1990). Such First Amendment cases
often involve adult businesses,billboards, signs, distribution of handbills, and satellite antennas.
For example, an ordinance regulating satellite antennas was held not to violate free speech rights
where its aesthetic and safety goals constituted a substantial governmental interest and the
regulation was reasonably related to such interest(Johnson v. City of Pleasanton, 982 F 2d 350)
(91h Cir. 1992).
In the case cited at length by appellant's attorney,Hunter v. City of Whittier(1989)
209 Cal. App. 3d 588, 596-597 (May 29, 2001 letter,p. 3), also involving a satellite dish,much
reliance is inappropriately placed.on the appellate court's mention of a property owner's exercise
of First Amendment rights. However, appellant's attorney apparently misread the ruling of this
case. The court held that an ordinance requiring land use permits may generally be enforced
according to vague standards but not when independent rights are conferred on a property owner
by other laws. Thus, where a Federal Communications Commission("FCC") regulation provided
that zoning regulations could not differentiate between satellite dish antennae and other types of
antennae unless they have"reasonable and clearly defined health, safety or aesthetic objectives,"
Board of Supervisors
September 6, 2001
Page 4
such FCC regulation was held to preempt the ordinance and thus, had to be followed rather than
the local ordinance. Thus, contrary to the impression given in Mr. Shaffer's letter, the Hunter
case did not involve First Amendment rights; it is a preemption case.
Similarly, the other cases cited by appellant's counsel are inapposite; they are First
Amendment cases,not zoning cases. These cases sometimes involve a conflict between First
Amendment rights and zoning ordinances, e.g., in the outdoor advertising cases. In such cases,
the courts have carefully crafted a four-part test for determining whether the government
regulation(ordinance) substantially advances a legitimate governmental interest and does so in a
manner narrowly tailored to meet such objective (Central Hudson Gas &Elec. v. Public Service
Comm'n (1980)447 U.S. 557). We attach for the Board's review one of our recent opinions in
which we discussed the United States Supreme Court's four-part test set forth in Central Hudson
in connection with a proposed outdoor advertising ordinance (County Counsel Opinion 98-005,
pp. 2-7).
In the line of actual First Amendment cases, distinctions have sometimes been made
between commercial free speech and non-commercial free speech. Such a distinction is not
relevant here, however, where no speech or expression is being regulated by the County. Only the
land use of the property for a non-residential purpose in a single family residential zone is at issue.
There is no governmental regulation of the activities proposed, in terms of content or purpose.
The Community Development Department's decision in its April 23, 2001 letter appears to be
based solely on the conflict of the proposed use with the residential zoning. No question of First
Amendment rights was raised in Mr. Scher's appeal or in the correspondence previous to Mr.
Shaffer's letter. Mr. Scher's position was that he was entitled to non-conforming use status as,
apparently, the stage had been used for family functions many years in the past.
We have not been asked to review the non-conforming use issue but we have
attached the County's ordinance for the Board's review, which sets forth the criteria for
termination of established uses or for requiring a land use permit when the legal non-conforming
use is expanded or enlarged(C.C.C. Ord. Code § 82-8.006). Although a number of years ago, a
previous owner may have had family entertainment or a family event take place in or around the
area of the stage,we are not aware of any evidence that such an occasional family use in the
1920's was not auxiliary to a single family residential use. In other words, the little information
that has been made available indicates that no non-conforming use was ever established; only a
use normally auxiliary to a single family residential use may have occurred about eighty years ago.
CONCLUSION. For the reasons stated in this opinion, we do not believe the First
Amendment argument raised in Mr. Shaffer's letter of May 29, 2001,has merit or relevance to the
administrative appeal before the Board on September 11, 2001, which concerns only whether the
proposed use of the property, for concerts or other fundraising activities, is compatible with the
Board of Supervisors
September 6, 2001
Page 5
single family residential zoning, absent evidence of a prior existing non-conforming use of the
property for the same activities established prior to the current zoning of the property.
cc: Dennis M.. Barry, AICP, Community Development Department Director
I:UOANN\Di a na\kensamph i thea tre.wpd
84.-2.002
Division 84 84-2.004 Districts established.
The use of all land in the unincorporated territory of
LAND USE DISTRICTS this county, within the districts shown on the maps
described in this chapter,is subject to the provisions of
this Division 84.Land is classified for the regulation of
its use as set forth in this division.The land use districts
Chapter 84-2 set forth m this division are established for all this
territory, and the land use districts designated on the
GENERAL PROVISIONS maps adopted by Section 84-2.002 are established and
classified in this division_ . (Ord. 78-93: prior code §
Sections: 8141:Ord.382).
842.002 1978 zoning map adopted.
842.003 District amendments. 84-2.006 Accessory building variances.
84-2.004 Districts established. Variance permits to modify the area coverage and
842.006 Accessory building variances. height provisions contained in subsections(1)and(2)of
Section 82-4.212 may be granted in accordance with
842.002 1978 zoning map adopted.* Chapters 26-2 and 82-6.(Ord.96-4§3).
Maps have been duly prepared by the pig depart-
ment showing the boundaries of the various land use
districts established by this division as they existed on Chapter 84-4
December 12, 1978, consisting of 289 sheets (each
certified by the planning director),and all constituting R-6 GLE-FAMILY RESIDENTIAL DISTRICT
the"1978 Zoning Map of Contra Costa County,"which
is on file with the clerk of the board,and is made a part Sectio
hereof by this reference and is hereby adopted as part of Article 844.2.General
this division. The sheets of this 1978 zoning map are 844.202 General provisions.
based on three hundred-foot and one thousand-foot
scales and related measurements provided by the Califor- Article 844.4.Uses
nia Coordinate System,as developed by the U.S.Depart- 84-4.402 Uses---Permitted.
ment of Commerce's Coast and Geodetic Survey.(Ord. 844.404 Uses--Requiring land use
78-93:prior code§8140:Ord.382). permit.
The maps adopted by this seem have been adopted and published Article 844.6.Lots
in the regular manna required far ordinances,but have not been 844.602 Lot Area.
printed with this code.They are available for public inspection at
the county planning deparmreat. 84-4.604 Lot—Width.
844.606 Lot—Depth.
842.003 District amendments.
(a) Zoning Map Updated The planning department Article 84-4.8.Badding Height
shall maintain a copy of the 1978 Zoning Map of Contra Banding height Maximum.
Costa County available for public inspection,and shall
record thereon and therein all changes made on and after Article 84-4.10.Yards
December 13, 1978,in the boundaries and designations 84-4.1002 Yard—Side.
of the county's various land use districts. 844.1004 Yard--ethack.
(b) Future Maps. Maps for ordinances to change 844.1006 Yard—Rear.
county land use district boundaries or designations shall,
whenever practicable,be based on the throe hundred or Article 84-4.12.Offt Parking
one thousand-foot scale California Coordinate System 84-4.1202 Off-street parking requirements-
one
referred to in Section 84-2.002.(Ords.78-93).
Amide 844.14.Land Use and Variance Permits
84-4.1402 Land use and variance permit
Granting.
439
U4.202
Article 844.2.General such as golf,tennis,and swimming clubs,and veterans'
and fraternal organizations;
844.202 General provisions. (5) Greenhouses,over three hundred square feet;
All land within an R-6 single-family residential (6) More than one detached dwelling unit on a lot or
district may be used for any of the following uses,under parcel,if the density is not greater than the following:
the following regulations set forth in this chapter.(Ord. (A) R-6 district — six thousand square feet per
1569:prior code§8142(part):Ords. 1269, 1179). dwelling unit,
(B) R-7 district—seven thousand square feet per
Article 84-4.4.Uses dwelling unit,
(C) R-10 district — ten thousand square feet per
4ollo
Uses—Permitted. dwelling unit,wing uses are allowed in the R-6 district: (D) R-15 district—fifteen thousand square feet per
(1) A detached single-family dwelling on each lot dwelling unit,
and the accessory strictures and uses normally auxiliary (E) R-20 district—twenty thousand square feet per
to it: dwelling unit,
(2) Crop and tree farming,except raising or keeping (17 R-40 district—forty thousand square feet per
any animals other than ordinary household pets: dwelling unit.
(3) Publicly owned parks and playgrounds; (G) R-65 district—sixty-five thousand square feet
(4) A residential care facility for the elderly; per dwelling unit,
operated by a person with all required state and local (H) R-100 district—one hundred thousand square
agency approvals or licenses, where not more than six feet per dwelling unit,
persons reside or receive care,not including the licensee (I) D-1 district—no density restriction,
or members of the licensee's family or persons employed (n F-I district—no density restriction;
as facility staff: (7) Commercial nurseries an application shall
(5) A family day care home where care protection include a site plan indicating planting and landscaping
and supervision of twelve or fewer children in the areas, existing and proposed structures, and plans and
provider's own home are provided for periods of lesselevations to indicate architectural type;
than twenty-four hours per day, while the parents or (8) Medical and dental offices and medical clinics;
guardians are away; (9) Publicly owned buildings and structures except
(6) Aviaries, which shall not be over twelve feet as provided in Division 82;
high nor exceeding one square foot(not over 1,600)in (10) Residential second units complying with the
area for each fifty square feet of net land area per lot,and provisions of Chapter 82-24;
unless otherwise provided herein, shall be set back at (11) A family care home where care,protection and
least twenty-five feet from the front property line and supervision of thirteen or more children in the provider's
any street line and at least ten feet from any side or rear own home are provided for periods of less than
property line, and shall be maintained in a sanitary twenty-four hours per day,while the parents or guardians
manner as determined by the county health department. are away;
(Ords 86-43 §2,78-83§ 1,77-51 §2,68-25§2:prior (12) Commercial radio and television receiving and
code§8142(a):Ords. 1269 § 1, 1179§3,1039, 1028, transmitting facilities other than broadcasting studios and
382§4A). business offices;
(13) The installation of exterior lighting at a height of
84-4.404 Uses—Requiring land use permit. seven feet or more above the finished grade of the parcel
0 owing uses are allowable on the issuance of a except exterior light placed upon the single-family
land use permit: residence. (Orris 87-67 § 4, 86-43, 83-70, 76-75 § 1,
(1) A home occupation; 76-36§2,73-51 §3,67-38,1762,1569§1,1549:prior
(2) Hospitals. eleemosynary and philanthropic code§8142(b):Orris. 1405, 1179§3,382§4A).
institutions,and convalescent homes;
(3) Churches and religious institutions and parochial
and private schools including nursery schools;
(4) Community buildings,clubs,and activities of a
quasi-public,social,fraternal or recreational character,
440
ZO /J � o
_ s4�.602
� �
Cofi f a
Article 844.6.Lots Article 844.12.Off-street Parking
844.602 Lot—Area. 844.1202 Off-street parking requirements.
No single-family dwelling or other structure permitted (a) In R-6 districts every dwelling unit shall have at
in the R-6 district shall be erected or placed on a lot least two off-street automobile storage spaces on the
smaller than six thousand square feet in area.(Ord.1569: same lot; except that there shall be at least one such
prior code§8142(c):Ords. 1269, 1179). space where the lot was legally created before September
9, 1971, or was part of a tentative or parcel map filed
844.604 Lot—Width. before September 9, 1971, and upon which a final
No single-family dwelling or other structure permitted subdivision or parcel map was subsequently approved
in the R-6 district shall be erected or placed on a lot less and recorded.
than sixty feet in average width.(Ord.1569:prior code§ (b) Such spaces shall have a covered or open
8142(d):Ords. 1269, 1179). surfaced area of at least nine by nineteen feet,and shall
be entirely outside the setback or side yard areas of the
84-4.606 Lot—Depth. principal structure. (Ords. 77-107, 71-59 §§ 4 and 5:
No single-family dwelling or other structure permitted prior code§81420):Ords. 1179§3, 1039, 1028,928).
in the R-6 district shall be erected or placed on a lot less
than ninety feet in depth. (Ord. 1569: prior code § Article 844.14.Land Use and Variance Permits
8142(e):Ords. 1269, 1179).
844.1402 Land use and variance permit—
Article 844.8.Building Height Granting.
Land use permits for the special uses enumerated in
844.802 Building height—Maximum. Section 844.404, and variance permits to modify the
No single-family dwelling or other structure permitted provisions m Sections 844.402(5)and 844.602 through
in the R-6 district shall exceed two and one-half stories 844.1202,may be granted in accordance with Chapters
or thirty-five feet in height. (Ord. 1569: prior code § 26-2 and 82-6. (Ord. 77-51 § 3: prior code § 8142(k):
8142(f):Ords. 1269, 1179). Ords. 1179§3,1039, 1028,382§4(A)).
Article 844.10.Yards
Chapter
844.1002 Yard—Side.
There shall be an aggregate side yard width of at least R-7 SING FAMILY IDENTIAL DISTRICT
fifteen feet.No side yard shall be less than five feet wide.
These minima may be reduced to three feet for an Sections:
accessory building or structure if it is set back at least 'cle .2.General
fifty feet from the front property line.(Ord. 1569:prior 84-6.202 Gen ral provisions.
code§8142(g):Ords. 1269, 1179).
A e 84-6.4.Uses
84-4.1004 Yard--Setback. 84-6.402 ermitted.
There shall be a setback(front yard)of at least twenty 84-6.404 Requiring land use
feet for any structure in the R-6 district.On corner.lots
the principal frontage shall have a setback of at'least
twenty feet and the other setback shall be at least fifteen 'cle .6.Lots
feet. (Ord. 1569: prior code § 8142(h): Ords. 1269, 84-6.602 Lot—A
1179). 84-6.604 Lot=Wid
84-6.606 Lot—Depth.
84-4.1006 Yard—Rear.
There shall be a rear yard for any principal structure A cle 84-6.8.Building eight
of at least fifteen feet. There shall be a rear yard for 84-6.802 Building height axdmum.
accessory structures of at least three feet. (Ord. 1569:
prior code§8142(i):Ords. 1269, 1179).
441
Z4nb 0se— dk
26-2.2008
subject property of rights enjoyed by other properties in code shall terminate as provided in Sections 26-22014
the vicinity and within the identical land use district; through 26-2.2018.(Ords.77-33 § 10, 1975, 1495:prior
(3) That any variance authorized shall substantially code§2206:Ord.917).
meet the intent and purpose of the respective land use
district in which the subject property is located.Failure to 26-2.2014 Variance,conditional use and special
so find shall result in a denial. (Ord. 1975: prior code§ permits--Exercise and use.
2204.30:Ord.917). A permit issued under provisions of this chapter shall
be deemed to be exercised, used or established when,
X26-2.2008 Variance,conditional use and special within one year of the granting, or within the time
permits--Conditional use permit otherwise specified on the permit, a building permit is
standards. issued by the building inspector for the purpose and
An application for a conditional use permit is an location described on the permit, providing that the
application to establish a conditional land use within a land building permit does not expire. If no building permit is
use district which does not allow establishment by right, required under the building code to establish such
but does allow the granting of a land use permit after a variance,use or other matter granted,then the permit shall
public hearing. The division of the planning agency be deemed to be exercised,used or established when clear
hearing the matter either initially or on appeal,shall find and visible evidence is demonstrated on the subject
the following before granting the permit property as to its beginning and continual development
(1) That the proposed conditional land use shall not thereafter until completed.
be detrimental to the health,safety and general welfare of Upon a showing of good cause therefor,the director of
the county; planning may extend the period of a permit,in which it is
(2) That it shall not adversely affect the orderly to be exercised,used or established,for a maximum of one
development of property within the county; additional year.
(3) That it shall not adversely affect the preservation A time period stated in the permit shall govern over this
of property values and the protection of the tax base within provision.(Ord. 1975:prior code§2206.10:Ord.917).
the county;
(4) That it shall not adversely affect the policy and 26-2.2016 Variance,conditional use and special
goals as set by the general plan; permits—When void—Time
(5) That it shall not create a nuisance and/or extension.
enforcement problem within the neighborhood or If a use is established according to the terms and
community; conditions of a permit and the use is discontinued for any
(6) That it shall not encourage marginal development reason for a period of six months,the permit shall become
within the neighborhood; void and the use shall not be resumed.Upon application
(7) That special conditions or unique characteristics during the six months period by the owner and upon a
of the subject property and its location or surroundings are showing of good cause the director of planning may grant
established.Failure to so find shall result in a denial.(Ord. an extension not to exceed a total of six months. (Ord.
1975:prior code§2204.40:Ord.917). 1975:prior code§220620:Ord.917).
26-2.2010 Variance,conditional use and special 26-2.2018 Variance,conditional use and special
permits—Special permit standards. permits—Previously expired.
An application for a special permit shall be primarily Any permit previously issued which expired, was
governed by the code provision authorizing its issuance, revoked or became void under any provision of law then in
but in the absence of specific standards,either the standard effect shall not be revived by any of these provisions.
prescribed for variance or conditional use permits shall (Ord. 1975:prior code§2206.30:Ord.917).
apply,whichever is deemed more appropriate.(Ord.1975:
prior code§220450:Ord.917). 26-2.2020 Variance,conditional use and special
permits—Revocation generally.
26-2.2012 Variance,conditional use and special Conditional use, variance and special permits are
permits--Termination. subject to revocation in the manner and for causes as pro-
Conditional use, variance and special permits and vided in Sections 20-22M-26-2-2030.(Ord.1975:prior
licenses issued pursuant to this chapter or Title 8 of this code§2207:Ord.917).
45
• t�O/I — (17 '�'CJ(dli 8 v
map of a subdivision.(Prior code§8106(c):Ord. 1268: Chapter 82-10
Ord.918).
LOTS*
82-6.008 Junkyards.
A junkyard,as defined in Section 88-4.206,may be Sections:
established,on the issuance of a land use permit,in any 82-10.002 Division and consolidation.
of the following land use districts:C general commercial 82-10.004 Required area reduced by public
district,L-I light industrial district,H-1 heavy industrial use. .�
district, and U unrestricted districts. (Prior code § 82-10.006 Land on district boundaries.
8106(d):Ord. 1268:Ord.918).
• For lot provisions for specific land use districts,see Chapters 844
g this code.
Chapter 82-8
82-10.002 Division and consolidation.
NONCONFORMING U (a) Conveyance and Division Restriction.No person
shall divide or convey a lot or portion thereof, if this
Sections. results in one or more lots violating the width,yard,or
82.8.002 Defined. setback requirements of Divisions 82 and 84, unless a .
8248.004 Repair Rebuilding. variance has been granted in accordance with county
82-8.006 Extension—Enlargement. ordinance code variance provisions.
(b) Land Satisfying Requirements. Land used to
82-8.002 Defined. satisfy the area,width,yard,or setback requirements for
Any lawful use of land or buildings existing at the one dwelling unit cannot satisfy those requirements for
time Divisions 82 and 84 becomes effective,which use another unit.
does not conform to the provisions of Divisions 82 and (c) Small Lot Occupancy. Any lot of less area or
84, shall be a nonconforming use and shall not be in width than required by Divisions 82 and 84 may be
violation of Divisions 82 and 84 until the use is occupied by a single-family dwelling and its accessory
discontinued or ceases for any reason. (Prior code § buildings if: (1) the yard and setback requirements of
8107(a):Ord.431).. Divisions 82 and 84 are met, or a variance has been
granted for yard and setback requirements,and(2)the lot
82-8.004 Repair Rebuilding. is delineated on a recorded subdivision map, or at the
If any building or structure constituting a time of the creation of the lot(as evidenced by recording
nonconforming use is destroyed or damaged by fire, date)or at any time since,the lot was consistent in width
explosion, act of God or the public enemy, or other and area with the applicable zoning district or the lot was
accident or catastrophe, after the effective date of created prior to the application of zoning in its location.
Divisions 82 and 84, or if an existing use of land is If a small lot qualifies for occupancy by a single-family
temporarily terminated for any of these reasons, the dwelling, then a building permit can issue unless the
building or structure may not be repaired or rebuilt if zoning administrator determines that the proposed
damaged in excess of fifty percent of its reasonable dwelling appears not to be compatible with the
market value at the time of destruction or damage.Any surrounding neighborhood. If the zoning administrator
existing nonconforming use of land which is intemupted makes that determination,the zoning administrator may,
by any of these causes may lawfully be resumed within but is not required to,schedule a public hearing to review
six months of the interruption. (Prior code § 8107(b): the proposed dwelling's compatibility with and impact
Ord.431). on the surrounding neighborhood, in terms of its
location, size, height and design. If a public hearing is
006 Extension—Wargement. scheduled, the notice provisions of Section 26-22004
Cexisting nonconforming use may be extended or shall apply.After such determination,at the conclusion
enlarged if the owner first obtains a land use permit. of the hearing,or if no hearing is held,the zoning admin-
(Prior code§8107(c):Ord.431). istrator may deny,approve or conditionally approve the
proposed dwelling in order to provide neighborhood
compatibility. (Ords.95-51, § 2,92-44§2,79-69 §2:
401
Opn. REq. .No. 98-005, pg. 1
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ,CALIFORNIA
Date: February 5, 1998
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Diana J. Silver, Deputy County C u 1
Re: Provisions of proposed Model Tobacco-Free Youth Ordinance
Summary
On January 20, 1998, the Board of Supervisors directed this office to perform an analysis of
two sections of the model ordinance which are aimed at controlling demand by minors for tobacco
products (II.A.3: Regulation of Tobacco Advertising) and at controlling supply to minors of tobacco
products (II.B.3: Conditional Land Use Permits for Sale of Tobacco Products by Retail Outlets) and to
advise the Board of any constitutional issues raised by these provisions. We have reviewed the draft
ordinance, materials submitted to this office by the Health Services Department, including comments
received by that department regarding the ordinance and relevant case law, including the four-part test
for First Amendment constitutionality established by the United States Supreme Court in the Central
Hudson case'. In essence, our conclusions are as follows:
(1) We have concerns that some of the provisions regulating tobacco advertising (§II.A.3)
may be too broad and/or vague to survive a constitutional challenge on First Amendment grounds. For
this reason, it may be difficult to meet the fourth prong of the Central Hudson test, i.e., that the
regulation is not more extensive than necessary to serve a substantial governmental interest.
(2)We believe that if applied, a challenge may be made with respect to the proposed
requirement that retailers obtain conditional use permits before they are allowed to begin selling
tobacco products. It may be argued that such regulation constitutes a denial of equal protection of the
laws and/or constitutes a deprivation of due process under the U.S. Constitution.
(3)As for businesses that already sell tobacco products,the standards set forth in the draft
ordinance are subject to challenge on the grounds of over breadth and vagueness (due process). The
"Performance Standards"in the draft ordinance which, if violated, may cause a person to lose their
"Deemed Approved"status do not amount-to nuisance standards. A prior legal non-conforming use
generally cannot be taken away unless a nuisance exists or unless the use is extended or enlarged.
Another challenge to a conditional use permit requirement could be made on the basis that one may
'Central Hudson Gas &Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980).
Opn. Req. No. 98-005, pg. 2
Board of Supervisors page 2
Model Tobacco-Free Ordinance February 5, 1998
lose"deemed approved" status by selling tobacco products to minors and that the County cannot
impose additional penalties for violations which are fully covered under by state law, i.e., that such a
County provision would be preempted by state law (Penal Code §308)2. Our analysis follows.
Section II.A. 3 : Regulation of Tobacco Advertising
In 1980, the United States Supreme Court established a four part test for assessing the
constitutionality of restrictions on commercial speech:
"At the outset, we must determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at least
must concern lawful activity and not be misleading. Next we ask whether the
asserted governmental interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is
necessary to serve that interest." (Central Hudson, supra,447 U.S. at 566).
On the face of the proposed ordinance, it appears that the four types of advertising sought to
be regulated concern lawful activity and are not misleading.' Thus, presumably this advertising is
protected by the First Amendment to the U.S. Constitution (first prong of Central Hudson test). Next,
we must ask whether the County can demonstrate a substantial government interest which the County
seeks to achieve by regulating these four types of advertising. The apparent interest of the County, as
2This office has not been asked to inquire into non-constitutional issues. In addition to the
issue of statutory preemption with respect to conditional use permits,there are other areas of concern
with respect to the proposed conditional use permit provisions: several areas of conflict with existing
standards for land use permits under the Contra Costa County Ordinance Code(see C.C.C. Ord Code
§26-2.2008); vagueness in standards and procedure for obtaining a conditional use permit and
problems in satisfying"nuisance"standards with respect to regulating existing retailers of tobacco
products. The issues involved are complex; this report is merely an overview and is intended as a
timely response to the Board's direction and an attempt to address the concerns expressed by the
Board at the January 20, 1998 hearing.
3The four types of advertising proposed to be regulated in the ordinance are: 1-outdoor
advertising of tobacco products (prohibited within 2500 feet of"areas where minors frequent"), 2-
tobacco advertising on windows and inside retail establishments (prohibited within 2500 feet of
"areas where minors frequent"if can be seen from the street; exception for black and white
"tombstone"advertising), 3-retail window advertising for any product(limited to 10%of window
area),4-tobacco advertising on County-owned property(prohibited).
Opn. Req. No. 98-005, pg. 3
Board of Supervisors page 3
Model Tobacco-Free Ordinance February 5, 1998
stated in the proposed findings and purpose of the ordinance(§II.A.1)4 is to promote compliance with
state law which prohibits the sale of tobacco products to minors (Pen. Code §308, copy of statute
attached for the Board's convenience) and to further the obvious public policy underlying this
prohibition, which is to prevent the purchase and consumption of tobacco products by minors. This
certainly appears to constitute a sufficiently substantial interest for purposes of satisfying the second
prong of the Central Hudson test(see Penn Advertising of Baltimore, Inc., Y. The Mayor and City
Council of Baltimore, et al.,101 F. 3d 332 (4`h Cir.)(1996)).
Next, we must ask if the proposed regulation directly advances this substantial interest(third
prong of Central Hudson test). If the answer if yes, is the regulation narrowly tailored to serve the
County's asserted substantial interest or are the proposed ordinance provisions more extensive than
necessary to serve the interest (fourth prong of Central Hudson test)?
1-Prohibition on outdoor tobacco advertising (e.g., billboards, sides of buildings, free
standing signboards, etc.)within 2500 feet of"areas where minors frequent." (§II.A.3.a.1.)
Restrictions on outdoor advertising of tobacco products have been found directly to advance
the local government's substantial interest(as defined above) (see Penn. Adv. of Baltimore v. Mayor
and City Council of Baltimore 101 F. 3d 332,333 (4`h Cir. 1996), affirming its earlier ruling, cited as 63
F.3d 1318 (4" Cir. 1995)). In apparent recognition of this, California legislation effective January 1,
1998 prohibits outdoor billboard advertising of tobacco products within 1,000 feet of schools and
allows more stringent regulation by local governments (Bus. & Prof Code §§22958, 22961). Several
California cities (Oakland, Long Beach, Compton, San Francisco) and.Los Angeles County have
enacted or are considering enacting similar prohibitions. There has been judicial recognition in the
Ninth Circuit(which includes this county)that"advertising increases consumption of the product or
service being advertised." (Cal-Almond, Inc. v. United States Dept ofAgric. 14 F.3d'429,439 (9'Cir.
1993)). The County also must be able to demonstrate,however,that there is an immediate connection
between advertising and demand among.minors. Further, the United States Supreme Court has stated
that mere speculation or conjecture by the County does not satisfy the third prong of the Central
Hudson test:
"a governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are
real and that its restrictions will in fact alleviate them to a material
degree."(Edenfeld v. Fane, 507 U.S. 761 (1993)).
If it can be shown that the demand for cigarettes and other tobacco products among minors
decreases as a result of decreased advertising,the County's policy of preventing acts that encourage
'If some form of this model ordinance is ultimately adopted by the Board of Supervisors,we
suggest that the Findings be set out in a separate document from the codified version of the
ordinance.
Opn. Req. No. 98-005, pg. 4
Board of Supervisors page 4
Model Tobacco-Free Ordinance February 5, 1998
conduct violating Penal Code section 308 (illegal sales to minors) is advanced and passes the third
prong of the Central Hudson test.
As presently drafted, however, these provisions may be challenged as more extensive than
necessary to serve the asserted substantial governmental interest under the fourth prong of the Central
Hudson test. The United States Supreme Court has explained this fourth prong of the test as follows:
the means adopted to advance the substantial governmental interest must be"...a means narrowly
tailored to achieve the desired objective." (Board of Trustees v. Fox 492 U.S. 469,480 (1989)).
The restrictions on tobacco advertising apply to a 2500-foot radius of areas where minors
frequent. Such areas are defined in the draft ordinance as
any area, facility, or location that provides special services for, or
predominantly serves, people under the age of 18 years of age,
including any nursery, kindergarten, elementary, middle or high
school; licensed child care center; playground; recreational
facility; arcade; and library." (§II.A.2. Definitions,l.)
The examples provided in the definition are not exclusive, merely inclusive.' Thus, a
"facility"could be a fast food restaurant, a bowling alley, a toy store, etc. What is most troubling,
however, is the term itself, "areas where minors frequent" is so broad and vague as to be subject to
constitutional challenge on due process grounds as well as not meeting the fourth prong of the Central
Hudson test.
If the Board desires to adopt this type of ordinance, it may wish to consider adoption of a
Baltimore-type ordinance, which the Fourth Circuit found to have met the Central Hudson test,
including the fourth prong, i.e., that the restrictions were not more extensive than necessary to serve
the asserted substantial interest. The Baltimore ordinance banned outdoor advertising of tobacco
products in certain zones of the city. When a specified distance, e.g.,.2500 feet, is restricted,however,
the provision is vulnerable to challenge on the ground that it constitutes an outright ban on the
restricted activity (see C.R. of Rialto, Inc. v. City of Rialto, 964 F. Supp. 1401 (C.D. Cal. 1997): adult
oriented businesses permitted in commercial and industrial zones but prohibited within 1000 feet of
residential zones or certain specified uses found to constitute total ban on adult oriented businesses and
therefore,unconstitutional).
If the Board desires to proceed with a specified restricted area, it would be advisable to
have a study done to ensure that the restriction will not result in an outright ban of an activity that is
generally constitutionally protected free expression. That is,the County must be able to demonstrate
s We note that such areas are not confined to unincorporated areas of the County; thus, the
"area where minors frequent"might include areas within a city with the prohibition extending 2500 .
feet in any direction, including unincorporated area subject to the ordinance.
Opn. Req. No. 98-005, pg. 5
Board of Supervisors page 5
Model Tobacco-Free Ordinance February 5, 1998
that the restriction is not so broad as to constitute an outright ban on tobacco advertising. The greater
the distance proscribed, the higher the risk of a constitutional challenge claiming it amounts to an
outright ban on tobacco advertising. Thus, the vagueness of the term"areas where minors frequent"
coupled with a 2500-foot prohibition on outdoor tobacco advertising, is probably a restriction that is
more extensive than necessary to meet the County's asserted interest in preventing purchase and
consumption of tobacco products by minors and does not meet the fourth prong of the Central Hudson
test.
Finally, we suggest that in connection with the preparation of any final version of an
ordinance restricting outdoor billboard advertising consideration be given to exempting current
contracts with billboard companies from the restrictions imposed by a subsequently adopted ordinance.
2-Prohibition on tobacco advertising inside a retail establishment or on windows if can
be seen from the street within 2,500 feet of an area.where minors frequent (§§II.A.3.a.2. and
II.A.3.c and d.).
The above analysis of the third prong of the Central Hudson test also applies to these
proposed restrictions. It is this office's opinion, however, that this regulation would be more difficult
to defend, because these provisions appear to be more "content-based"rather than merely a restriction
on the time, place, and manner of the tobacco product advertising.' A content based restriction
receives a much higher level of scrutiny by the courts than does a"time, place and manner"restriction.
Thus,the County would have a heavier burden to justify this"Point of Purchase"advertising
restriction than in the case of outdoor advertising restrictions discussed above (see Desert Outdoor
Advertising, Inc., v. City of Moreno Valley 103 F.3d 814 (9`'Cir. 1996): billboard restrictions imposed
by California city found unconstitutional for being content based)).
We are not aware of any case law which has upheld the type of restriction proposed here.
It is our view that this type of restriction would be quite vulnerable to challenge,because it would be
argued that the restriction does not directly advance the County's substantial interest in preventing the
purchase and consumption of tobacco products by minors (see 44 Liquormart, Inc., et al v. Rhode
Island et al., U.S. (1996)).
In 44 Liquormart, the United States Supreme Court ruled that Rhode Island's ban on
advertisement of retail liquor prices except for price tags or signs displayed with the merchandise
within licensed premises and not visible from the.street did not advance directly the state's interest in
temperance(third prong) and was more extensive than necessary(fourth prong)). In view of this case
6It is our opinion that the exception for black and white advertising, so-called"tombstone
advertising,"will not save this regulation from probably being successfully challenged as
unconstitutional under the First Amendment to the U.S. Constitution as an impermissible content
based restriction on commercial free speech.
Opn. Req. No. 98-005, pg. 6
Board of Supervisors page 6
Model Tobacco-Free Ordinance February 5, 1998
and a likely successful challenge that this type of regulation would be preempted under the Federal
Cigarette Labeling and Advertising Act(FCLAA) (15 U.S.C. §§1331-1340), because it would be
considered to be a"prohibition based on smoking and health...imposed under state law with respect to
the advertising or promotion of any cigarettes" (15 U.S.C. §1334(b)) we have serious concerns about
the constitutionality of this proposed regulation.
In addition, we have a number of concerns with the scope of the regulation. As discussed
above, it may be difficult to satisfy the fourth prong of the Central Hudson test, i.e., that the ordinance
provisions are narrowly tailored to serve the County's asserted substantial interest when the ban is of
such a wide area(2500 feet) and when the ban extends to any area"frequented"by minors. This is a
vague term and subject to challenge as much more extensive than necessary and, thus, not in
compliance with the fourth prong of the Central Hudson test.
3-Limitations on retail window advertising for any product (II.A.3a.2.c)).
This provision prohibits signs posted in a window of a retail, commercial or industrial
establishment from obscuring more than ten percent of the total transparent area of the window. This
provision expressly"applies to all advertising, not just advertisingfor tobacco products."' We have
found no support for such a provision in this ordinance which purports to discourage illegal sale of
tobacco products to minors. It is difficult to discern how this provision would directly advance the
County's substantial interest in preventing the sale of tobacco products to minors. Thus, it is
unnecessary to reach the fourth prong of the Central Hudson test (whether it is more extensive than
necessary to serve that interest). This provision appears to be unrelated to the ordinance under
consideration.
4-Prohibition of Tobacco Advertising on County owned property (§II.A.3.b.)
The County, in its proprietary capacity,can control advertising on property in which it has
sufficient proprietary interests. The County, however, cannot impair existing contracts with lessees or
lessors or other persons or entities with whom the County has entered into contractual relationships.
Where current contracts exist, they would have to be amended to reflect such a restriction.
If an owner of property leased to the County has retained proprietary rights sufficient to
permit such advertising, the County would not be able to interfere with such rights. But to the extent
the County has sufficient proprietary rights in the subject property, the Board can adopt an order,
resolution, or ordinance prohibiting such advertising or the same result could be accomplished through
issuance of an administrative bulletin by the County Administrator.
'The exception in commercial and industrially zoned areas where the advertisements "are
not within 2500 feet of areas where minors frequent or visible in aforementioned places"does
nothing to advance the County's asserted.interest.( see §IIA.3.a.3.).
Opn. Req. No. 98-005, pg. 7
Board of Supervisors page 7
Model Tobacco-Free Ordinance February 5, 1998
As for property which is "operated"by the County, it is unclear if this refers to real or
personal property. Without clarification of this term it is not clear how this provision as currently
drafted could meet the fourth prong of the Central Hudson test because, by its ambiguity, it is more
extensive than necessary to serve the County's asserted substantial interest in preventing tobacco
product sales to minors.. This provision could be rewritten, however, to be narrowly tailored as
constitutionally mandated. It is possible that as revised, it could be added to the current tobacco
ordinance (see C.C.C. Ord. Code Division 440, Tobacco Products).
Section II.B. 3: Conditional Use Permits for Sale of Tobacco Products
We are not aware of any city or county ordinances in California which regulate the sale of
tobacco products through a conditional (land) use permit (LUP)process. Under the California
Constitution,the County may"make and enforce within its limits all local,police, sanitary, and other
ordinances and regulations not in conflict with general laws." (Cal. Const. Art XI, §7). The County
may establish zoning and other related land use regulations under its police power granted under the
California Constitution as long as there is some rational basis to support such regulation (Miller v.
Board of Public Works (1925) 195 Cal. 477,490;Associated Home Builders, etc., Inc. v. City of
Livermore(1976) 18 Cal. 3d 582, 609).
The power and authority of counties to grant LUPs, if reasonable, is a valid exercise of the
police power(Cal. Const. Art. XI,§7; Topanga Assn.for a Scenic Community v. County of Los Angeles
(1974) 11 C.3d 506, 511). In addition, there is specific statutory authority for counties to hear and
decide applications for LUPs (and other permits) when the zoning ordinance so provides and
establishes criteria for determining such matters (Gov. Code §65901). This County has provided such
procedures by zoning ordinances (see C.C.C. Ord. Code §26-2.1204 (2): zoning administrator hears
and initially decides requests for LUPs; C.C.C. Ord. Code Art. 26-2.20: procedures and standards for
LUPs; C.C.C. Ord. Code §26-2.2008: standards and required findings for issuance of LUPs). A
general welfare standard is typical, and generally, sufficient(see C.C.C. Ord. Code §26-2.2008(1);
Hawkins v. County of Marin (1976) 54 Cal. App. 3d 586). Most zoning ordinances, including this
County's, declare violations of the ordinance to be public nuisances subject to abatement proceedings
(C.C.C. Ord. Code §14-6.204; see generally, Longtin, California Land Use, 2d Ed. (1987)'§10.61(6),
p.940).
Several recent nuisance abatement ordinances containing an LUP requirement for retailers
of alcoholic beverages (to be consumed off-site)have been upheld as administrative mechanisms for
controlling and abating nuisances (Suzuki v. City of Los Angeles (1996)44 Cal. App. 4' 263; City of
Oakland v. Superior Court(1996)45 Cal. App. 4°i 740). Unlike zoning ordinances, a nuisance
abatement ordinance may be applied retroactively; however, the County's police power to proscribe.
nuisances is more limited than its zoning power. An"undoubted menace to public health, safety or
morals"must be shown to establish a nuisance (Suzuki v. City of Los Angeles (1996)44 Cal. App. 4"
263, 275-276).
0pn. Req. No. 98-005, pg. 8
Board of Supervisors page 8
Model Tobacco-Free Ordinance February 5, 1998
The LUP provisions of the draft model tobacco ordinance appear to be derived in large part
from the"Deemed Approved Performance Standards" set forth in Oakland ordinance aimed at
addressing public nuisance problems associated with certain liquor stores in certain areas of the city
(see City of Oakland v. Superior Court ,supra at 747). The existing business activity(in Oakland,
liquor stores; here, tobacco retailers) is deemed to be an approved commercial activity as long as the
merchant conforms to certain standards and posts a notice containing the"performance standards." If
there is a complaint the standards have been violated,an administrative hearing must be conducted.
Hearing and appeal procedures and enforcement methods are not specified in the draft ordinance now
being considered by this Board.
New businesses which are established after the effective date of the ordinance and existing
businesses which"substantially change its mode or character of operation" are required to obtain an
LUP.B Although the County has wide discretion under its police power to regulate new businesses by
zoning ordinances and may apply the general welfare standard in determining whether to grant an LUP
for certain types of businesses as specified in its zoning ordinance, there must be a rational basis for
distinguishing between retailers of one type of consumer product from retailers of other types of
consumer products. Lack of a rational basis raises the risk of attack as a denial of equal protection of
the laws under the U.S. Constitution (see Elysium Inst., Inc. v. County of Los Angeles (1991) 232 Cal.
App. 3d 408,426,427).
In the draft model ordinance now being considered by the Board, four factors are to be
considered in making the determination whether to grant the LUP.' The factors are general and
somewhat vague. As stated in the discussion of the proposed regulation of outdoor advertising, we
have concerns that the term"areas where minors frequent" (§ II.B.3d.1) may be subjected to a
constitutional challenge on due process grounds as being too vague and overly broad. For example,
one of the factors to be considered is whether the sale of tobacco products is"appropriate...given the
percentage of patrons likely to be minors or the nature of other products to be carried." This"factor"
is extremely vague and therefore, is vulnerable to a constitutional challenge on due process and equal
protection grounds. That is, a tobacco retailer would argue that there is no way of knowing where
minors are likely to frequent, or whether the sale of tobacco products is"appropriate"and therefore,
that this factor is too vague to be applied with any precision and will result in arbitrary denials of use
permits (due process claim). Secondly,the tobacco retailer would argue there is no rational basis for
"This conflicts with existing County Code provisions governing prior legal nonconforming
uses(see C.C.C. Ord Code §82-8.006: LUP required only if existing legal nonconfoming.use is
extended or enlarged). The quoted language in the draft ordinance appears to have been taken from
Business and Professions Code§23790(alcoholic beverage licenses) and is inapplicable here.
'The County officer,e.g., zoning administrator, to conduct the hearing is not identified; nor
is there any reference to existing County Code procedures for LUP hearings, factors to be considered
in granting an LUP and appeal provisions(see C.C. C.Ord Code Chapter 26-2).
• Opn. Req. No. 98-005, pg. 9
Board of Supervisors page 9
Model Tobacco-Free Ordinance February 5, 1998
forcing him or her to go through an expensive time-consuming LUP process when other retailers of
consumer products are not required to do so (equal protection claim).
These constitutional challenges may not be successful as applied to new tobacco retailers,
given the wide discretion the county has under its police power. As discussed above, the County may
be able to impose an LUP requirement on new tobacco retailers ( i.e., with only prospective effect)
using a general welfare standard if there is a rational basis for requiring tobacco retailers to obtain
LUPs.
As for existing businesses which"substantially change its mode of operation," although the
factors listed in the draft ordinance might meet a general welfare standard for purposes of regulating
new tobacco retailers, a tobacco retailer legally in business before the effective date of the ordinance
generally cannot lose the right to conduct a tobacco product retail business unless nuisance conditions
exist on the premises. As discussed above, the factors set forth in the draft ordinance ("Performance
Standards") may meet a general welfare standard but do not amount to a nuisance : "an undoubted
menace to public health, safety or morals" (see Suzuki v. City of Los Angeles (1996) 44 Cal. App. 4`h
263, 275-276).
In addition, as stated above, a prior legal nonconforming use cannot be subjected to an LUP
requirement unless it expands or enlarges the use (Longtin,California Land Use, 2d Ed. (1987), Vol.
1, §3.80[4], p.609). Although there is generally no right to expand a nonconforming use, a person has
a fundamental vested right to continue operating an established business (Goat Hill Tavern v. City of
Costa Mesa (1992) 6 Cal, App. 4'' 1519)). Therefore, without an expansion or enlargement of the use
or a demonstrated nuisance on the premises, an existing tobacco retailer generally could not be
deprived of the right to continue his or her business nor could he or she be legally required to obtain an
LUP for breaching one of the"Performance Standards" listed in the draft ordinance.
We note also that an applicant for an LUP has the"burden of proving by clear and
convincing evidence that the proposed use will not result in the sale or distribution of tobacco products
to minors, adversely affect the safety or welfare of the community,result in undue concentration of
tobacco retailers,or detrimentally affect nearby communities." (§II.B. 3e). This appears to be a very
difficult, if not impossible, burden of proof, given the far reaching and broad sweep of this
requirement. It also goes beyond the usual "preponderance of the evidence"standard employed in
making LUP decisions. Thus, the vagueness of the factors to be considered and the extremely heavy
burden of proof upon an applicant could result in a challenge based on denial of due process
(deprivation of right to conduct business of selling lawful tobacco products and without adequate
notice and opportunity to be heard: i.e., substantive and procedural due process claims) and denial of
equal protection of the laws by singling out tobacco retailers for special treatment and subjecting them
to a time-consuming, burdensome, and expensive LUP process which is not required for retailers of
other products.
The Board directed this office to examine the constitutional issues involved in these two
Opn. Req. No. 98-005, pg. 10
Board of Supervisors page 10
Model Tobacco-Free Ordinance February 5, 1998
.sections of the draft ordinance. We feel we should point out, however, that the likeliest challenge to
the proposed LUP process for tobacco retailers will be on the ground that this area of the law is
expressly preempted by state law: Penal Code §308. Penal Code §308 prohibits sales of tobacco
products to minors. It provides civil and criminal penalties (Pen. Code §308(a)). It expressly provides
that no city or county"shall adopt any ordinance inconsistent with this section." (Pen. Code §308(e)).
An otherwise valid ordinance is preempted by state statute if the ordinance duplicates or
contradicts the statute, or if the ordinance enters into a field of regulation expressly or impliedly
reserved to the state." (Water Quality Assn. v County of Santa Barbara (1996) 44 Cal. App. 4`h 732,
741).
To the extent the LUP provisions in the draft ordinance establish penalties based on illegal
sale of tobacco products to minors, they would be subject to a preemption challenge. Pursuant to this
draft model ordinance, an existing business may lose its "deemed approved" status by selling tobacco
products to minors (see"Performance Standards" in §II.B.3a.Lb)) or a new retailer (or existing
business that changes its mode of operation) will not be able to obtain an LUP if he or she cannot
prove by clear and convincing evidence that the proposed use will not result in the sale or distribution
of tobacco products to minors (see §II.B.3e ), These are penalties for the sale of tobacco products to
minors which probably are preempted by Penal Code §308.10
The Suzuki and City of Oakland cases discussed above, which required LUPs for new liquor
stores and those which lost their"deemed approved" status, survived preemption challenges because
they were based on the municipality's police power to control and abate nuisances. In the draft
ordinance now under consideration,the nuisance rationale may not be viable where the penalties are
imposed(and the use is denied or revoked) for illegal sale of tobacco to minors because the state has
fully occupied this field through Penal Code §308.
It is permissible to enact an ordinance which discourages activity made illegal by the state
through a licensing procedure as long as the ordinance is intended to discourage the activity proscribed
by state law and does not attempt to either expand or reduce the degree to which the particular activity
regulated by state law is criminally proscribed(Bravo Vending v. City of Rancho Mirage(1993) 16
Cal. App. 4`h 383,412). In Bravo Vending, the city adopted an ordinance which required tobacco
retailers to obtain a license and prohibited sales of cigarettes through the use of a vending machine.
The court upheld the ordinance because it did not impose any penalties for sales of tobacco products to
minors and was therefore, not preempted by state law. The ordinance did not distinguish to whom
tobacco products could be sold (Id. at 403). The court found the purpose of the ordinance was to
1OWe do not distinguishing between the draft ordinance provisions which duplicate state
statute and those which are inconsistent with state statute since both areas come within the
preemption doctrine(see e.g.,Suter v. City of Lafayette(1997) 57 Cal. App. 4`h 1109, 1123 (firearm
licensing requirements); Morehart v. County of Santa Barbara (1994)7 Cal. 41h 725,747).
0pn. Req. No. 98-005, pg. 11
Board of Supervisors page 11
Model Tobacco-Free Ordinance February 5, 1998
regulate the business of selling cigarettes in order to make illegal purchases of cigarettes by minors
less likely by prohibiting the particular manner of sale most often used by minors (Id at 409).11
Accordingly, we conclude that the proposed LUP process, if adopted, could be challenged
as preempted by Penal Code §308, in addition to the possible due process and equal protection
constitutional attacks discussed above.
This office has received the attached comments from the Community Development
Department Director concerning the proposed ordinance. These comments are consistent with
comments submitted by several of the persons and entities who responded to the Health Services
Department's request for comments, especially concerning the difficulties associated with creating and
enforcing an LUP process for tobacco retailers, some of which are discussed above. In addition, Mr.
Barry advises that eight additional billboards would be impacted by adoption of the proposed
ordinance. Locations are included in his memorandum.
HADSILV\M EMOS\TOBACCO.W PD
11The County currently requires that vending machines have certain licenses and be located
25 feet from any entry into the premises(C.C.C. Ord. Code §440-6.002).
i
Danny Scher
i 500 Coventry Road -Kensington, CA 94707
510/526-6511 •Fax: 510/526-6522
I
May 6, 2001
I
I
Community Development Department
Application and Permit Center
Contra Costa County
651 Pine Street
2"d Floor, North Wing
Martinez, CA 94553-0095
Re: Amphitheatre and Stage at 500 Coventry Road in Kensington, California
To Community Development'Department:
Danny Scher, 500 Coventry Road, Kensington, CA 94707 ("Applicant"), hereby
appeals the decision of the Community Development Department as set forth in the
letter of April 23, 2001, signed by Catherine Kutsuris, a copy of which is attached as
Exhibit "A", denying Applicant's request that the amphitheatre and stage located on the
Applicant's property since 1924 be given "legal non-conforming " grandfather status.
The grounds of this appeal are that there is sufficient evidence in record to determine
that such legal non-conforming status is appropriate and that such status should have
been granted based on such levidence. The denial of the Applicant's request is contrary
to the applicable facts, the law and the applicable legal standard. Applicant's letter of
April 3, 2001 together with alll exhibits, photographs and other enclosures is hereby
incorporated by reference and made a part of this appeal.
Procedurally, it should be noted that Applicant did not receive the letter of April 23, 2001,
a copy of which is attached as Exhibit "A". until April 30, 2001. Applicant has been out of
the country and out of telephone or other manner of communication reach since April 12,
2001 and will not return until May 11, 2001. This appeal is submitted and signed by
Applicant's assistant, Lod Sun-Look, who is fully authorized to file this Appeal, within the
time required by law in order to protect Applicant's rights of appeal with regard to the
subject decision. Appellant reserves the right to augment and supplement this appeal
and the record upon his return to the United States on May 11, 2001.
,.,. Sincerely,
n
L ri Sun 'Look
Attachment
I
I
Ci Contra ��% �. Dennis M. Barry,AICP
OCYII F1Uf Ilty Community Development Dire<
Development Costa
Department i County
County Administration Building *.- .
^- �,
651 Pine Street '
41h Floor, North Wing e
Martinez, California 94553-0095
Phone: (925) 335-1210
April 23, 2001
Danny Scher
500 Coventry Road
Kensington, CA 94707
Subject: Amphitheatre and Stage at 500 Coventry Road in Kensington, California
Dear Mr. Scher:
This letter is in response to your letter of April 3. 2001 i.. MlIC11 you request the
Departme.nt's cOTICUI ence that the amphitheatre and st 10Cated at 500 Coventry Road
in Kensington is a "legal non-conforming use." The prop;_;Ty is located in the R-6
i
Zoning District, which is a siingle family residential zona°:_ 'ilstrict.
We have reviewed the clOCUnienls which you submitted support of your belief that the
stake and amphitheatre is a legal non-confonning use. to the information
submitted, the stage and amphitheatre have been in e.xI_ since the 1920s. built for
the use of the family which owned and lived on the pro.,::: . The information submitted
documents a number of "events" that were held at the s;'::- These events, however, would
be those that would be considered accessory to the resicen;ial use of the property. There
was no evidence submitted to support the contention J. e property has been used for
activities commercial in nature, such as the musical coni;: %%--hick you have apparently
been advertising. Even if you provided documentation t`:. the amphitheatre has been
used for musical concerts/events, you would be required to show flow that use has been a
contintrotrs use at the property. Without such evidence and based on the information
you have submitted, the Department has determined that the use of the stage and
amphitheatre for musical concerts is not a legal non-conforming use.
You should be aware that since the activity is not a legal non conforming use, the holding
of the proposed benefit concert for the Parkinson's Institute is clearly a violation of the
County Code and is not allowed on the site. In reviewing the County Code, it appears that
you have the right to file a land use permit application for an eleemosynary use- If
approved, that could allow the use of the site for a musical concert such as you have
described. However, I must Caution you that the County Code includes seven findings
which must be made in order to grant a land use permit. They are:
i
Office Hours Monday - Friday: 8:00 a.m. - p-m.
Office is CIOSPd the 1 Sr, ;3rd R 511) Friciays c`• month
1) the proposed conditional land use shall not be detrimental to the health, safety and
general welfare of the county;
2) the use will not adversely affect the orderly development of property within the
County;
3) . the use shall not adversely affect the preservation of property values and the
protection of the tax base within the County;
4) the use shall not adversely affect the policy and goals as set by the general plan;
5) the use shall not create a nuisance and/or enforcement problem within the
neighborhood or community;
6) the use shalt not encourage marginal development with the neighborhood; and
7) special conditions or unique characteristics of the subject property and its location or
surroundings are established. Failure to make these findings shall result in a denial.
Based on the information you have submitted regarding VOLIF plans and our knowledge of
the residential nature of the community in which you are located, it is very unlikely that
the Community Development Department could make the findings in order to
recommend approval ol-such a land use permit. If you Cje.,AC to pursue the filing of a
land use permit, you should be aware that the processing_ .:file from application to the
scheduling of a public hewing is approximately four it�ori 'ts-
The Depa-rtment strongly urges you to cancel your plannf upcoming event. The activity
is a violation of the County Code- This determination forwarded to the Code
Enforcement Division of the Building trispection Depar::::.'at for their follow-up.
Should you have any questions or would like to discuss determination in more detail,
please call Aruna Brat, a Current Planning Division NIa::�_er. at (925) 335-1219.
County Code Section 14-4.002/004 provides that this delsion may be appealed to the
Board of Supervisors. Should you wish to file an appeal_ e letter of appeal and the
$125 filing fee must be received by the office of the Clerk of the Board by 5:00 pm on
Monday, May 7, 2001. The appeal letter must concisely Mate the facts of the case and the
grounds for the appeal, including your special interesthnjurv- A brochure on the filing of
an appeal has been included. Please review the portion of the brochure relating to the
filing of appeals of adnunistrative decisions.
Sincerely,
Catherine Kutsuris
Deputy Director
CK/bdm
i
I�
cc: Members, Board of Supervisors
Clerk of the Board
Dennis Barry— Director
Diana Silver—Deputy County Counsel
Greg Staffelbach —Building Inspection Department
Aruna Bhat—Principal Planner
05/29/2001 14:27 FAX 925 2565975 [x]003/00'
P 717
ARCHER ■ NORRIS
2.1033 North Main Street,Suite 800 Cn(IFORNIA C
PO Box 8035 Walnut
Walnut creek,CA 94596-3728 RIChi
925.930.6600 Oi
925.930.6620(Fax)
May 29,2001 EDWARD L S(iAr
eshaPrer@archcrnorrl5.(
925.952.5
Contra Costa County Board of Supervisors
c/o Clerk.of the Board
651 Pine Street, Room 106
Martinez, CA 94553
Re: APpeal of Staff Decisions Regarding 500 C,,\_zntrry Road, Kensington
Honorable Supervisors:
We represent Danny Scher, resident and owner of property located at 500 Coventry Road
in Kensington, Contra Costa County. Mr. Scher previou:►\ tiled an appeal of certain decisions
nlade by County staff. This letter is intended to elaborate on and expand the matters subject to
Mr. Seller's appeal, as described below. We understand ttt-:t a heanng before the Board of
Supervisors has been scheduled for July 17, 2001 at 1:00
Summary
1. Status of Amphitheater and Stage.
Qestiow. Does the amphitheater and stage on the property at 500 Coventry Road qualify
as a legal stnicture on the site?
Answer: These improvements should be accepted as accessory facilities, fully legal
under current County regulations. At a miniinum, there is ample evidence to show that
the facilities date to the 1920's and so are legal nonconforming uses.
2. 1_.ep_ality of Fundraising Activities.
r
Question: Are gatherings for political and chartable fundraising allowed without a
conditional use permit`?
Answer: Constitutional protections of free speech alto« such activities and require a
Countywide ordinance rather than ad hoc decisions on individual permits.
Archer Norris,A Professional Law CorrJora(i
TXEI_S/203589-2
05/29/2001 14:27 FAX 925 2565975 Q004/007
Contra Costa County Board of Supervisors
May 29, 2001
Page 2
Enforcement Action
In response to communications with the County regarding work being done to the
amphitheater,Mr. Scher sent a letter to Ms. Aruna Bhat of the County on April 3, 2001, asking
for confirmation that the amphitheater and stage be recognized as a legal nonconforming use. He
submitted substantial evidence showing that the stage and amphitheater had been used since the
1920's for various types of events.
Staff then raised a second question:.whether zorung allows this property to be used to
host political and charity fundraising events. This inquiry\vas triggered by Mr. Scher's plan to
hold a benefit concert on May 20th for the Parkinson's Institute. Staff pressured both Mr. Scher
and the Parkinson's institute to cancel the event. As a result of staff's intervention, the Institute
had to refund S20,000 that already had been donated by people lilan►ling to attend.
Status of Stage and Amphitheater
Mr- Scher received a letter from Catherine Kutsuns of the Commu.rtity Development
Department dated April 23rd (which by Ms. Kutsuris' ovm :z".11lission actually should have been
dated April 27`h). Ms. Kutsuris did not respond directly to Mr. Scher's request for a decision
regarding the status of the stage and amphitheater. lnsteac:. > to focused almost entirely on the
types of uses that may be allowed. Thus it is not clear �-aff has declared that the stage
and amphitheater themselves are illegal improvements.
'['his confusion is reinforced by a Notice To CornpiN ;sated May 3, 2001. from Greg
Staffelbach of the Building Inspection Department. The or;:;r for"Corrective Action" states:
Cancel any and all events that are l,l ari:,. for the above-referenced
property. If you wish to apply for a `]arid uSl pen"It' to hold such events,
please gain the appropriate approvals prior to scheduling of the events.
This notice does not differentiate between fundraising events and other gatherings such as
weddings, birthday parties, etc. It suggests that all uses of stage and amphitheater are
prohibited without a perniit. Mr. Staffelbach's Notice to Comply was much too broadly worded
and imposed an unreasonable burden on legitimate uses of private property.
By,this letter we appeal both the May 3rd Notice To Comply and the April 27th
Community Development decision, to the extent that they declare the stage and amphitheater
illegal and/or prohibit all uses of those facilities. At a minimum- the stage and amphitheater
qualify as legal nonconforining iriiprovernents due to their a,,:and the evidence provided.
However,we ask the Board of Supervisors to detemune that the stage and amphitheater
are fully legal accessory structures on this R-6 residential property. The improvements should be
Gee from any restrictions or cloud that may apply to being branded noriconforming.
i
i
TKELS1203599-2
05/29/2001 14:27 FAX 925 2565975 I U005/00.,
I
Contra Costa County Board of Supervisors
May 29, 2001
Page 3
I
Fundraising Events
Mr. Scher proposed to hold a benefit concert to raise money for the Parkinson's Institute,
a charitable organization fighting Parkinson's Disease. This event would have been much
smaller than the weddings, birthdays and other parties occasionally held by Mr. Scher. However,
County staff decided that the activity was"commercial" in nature, based simply on the fact that
lie would be charging people to attend.
I
Mr. Scher was ordered to cancel the fundraiser, and was told that he must obtain a land
use permit for any future events. Staff also declared that it was"very unlikely" that a permit
would be issued. Mr. Scher also received a Notice to Cotnpl)'threatening him with legal actiotl
and fines if he held"any" event on his property—without clarifying what gatherings might
trigger such punishment.
I
Both the United Statesand California Constitution: teat soliciting funds for charity or
political purposes as protected speech. The United States 5:tpre111e Court overturned an attempt
to license charity solicitors, stating: "Charitable solicitations involve a variety of speech interests
. that are within the protection of the First Acndmcnt." Schaumburg v. Citizens for a Better
Environment (1980) 444 U.S.�620, 632. Chartable solicit. iio►1 also is given snore protection
than merely commercial speech. See. Riley v. National Federation for the Blind of North
Carolina (1988) 487 U.S. 781 Politically-related events 21so are protected by the First
Amendment. See,New York Times Co. v. Sullivan (1962, =-6 V.S. 254. The ruling in
Schaumburr?was repeated by Hillman v Brittotl (1980) 111 Cal. App. 3d 810, in which the
California court agreed that charitable solicitation is constin.amally protected speech.
i
California courts haveirecognized that the State Cotrtirution is even more protective of
free speech rights than federal law. See, Gonzales v. Superior Court (1986) 180 Cal. App, 3d
1116, 1122. The court in Hunter v. City of NVII'ttier (19591 '-09 Cal. App. 3d 588, 596-97, ruled:
I
City correctly points out that as a general rule of zoning law, broad general .
standards for conditional use permits have been upheld because it would be
impossible and tuldesirable to devise specific standards to cover all conceivable
variations of circumstances involving individual properties [citations].
The issue in those cas6s,however, was whether those standards were so
impermissibly vague as to constitute an unlawful delegation of legislative
authority to an admini'strativc body or official. The approach is not the same
when the property owner has independent rights which constitute a limitation
upon the powers of th6 legislative body itself to regulate the matter. Thus, for
example, when Zoning restrictions operate on the property,owner's exercise of
First Amendment rights, the court have required greater legislative specificity
in order to avoid undue administrative discretion impiurging on the owner's
rights. [citations]. (emphasis added)
rXC-LS/203569-2
05/29/2001 14:28 FAX 925 2565975 006/00:
Contra Costa County Board of Supervisors
May 29, 2001
Page 4
In Rodriguez v. Solis (199 1) 1 Cal. App. 0 495, the court repeated the reasoning in Hunter as it
upheld denial of a sign. The decision rejected an auto dealer's free speech argument in part
because commercial(advertising) speech is treated as deserving less protection than other forms
of speech. Despite County staff's opinion, charitable and political fundraising are forms of
protected free speech, and are not considered"commercial"by the courts.
Both federal and state courts object to situations where public officials can exercise wide
discretion in granting or denying permits that infringe on constitutionally protected rights like
freedom of speech. Even if the individual case does not show actual misuse of authority, the
courts are concerned with the potential for abuse of this power. Thus they insist that.any such
permitting be subject to an ordinance with definite, objective guidelines that narrowly limit the
range of discretion. Any regulation and restriction of First Amendment rights must be narrowly
tailored to serve a significant government interest with the lcast intrusive imposition on
constitutional rights. See, Ward v. Rock Against Racism (1, S9) 491 U.S. 781, Dillon v.
Municipal Court (1971) 4 Cal. 3d 860, City of Indio v. A.rro-%-O (1983) 143 Cal. App. 3d 151.
The court in City of Itnp erial Beach v. Escott (1951) i 1; Cal. App. 3d 134, struck down
an ordinance requiring a conditional use permit to operate gin, ��ittlt bookstore,because it gave
public officials too much discretion and so violated the Fir,:_lrnendment. The ordinance
required findings such as that the proposed use`will not be.::-Tinlenta] to the health, safety or
general welfare of persons residing or working in the t�cu1:% . —which is very similar- to
Finding No. 1 required by Contra Costa County in Counly�-oce section 26-2.2008. The court
rejected a permitting scheme that created subjective standopen to interpretation and abuse,
rather than the precise "objective" measurement demanded the First Amendment. This use
permit requirement was lteld to be-unconstitutionally ,,aizue_cwerb road, and a prior restraint
against . . . protected activity." Other California and federal courts have rejected similar
situations imposing open-ended use permit requirements on Zcm ities protected by the First
Amendment-
Conclusion
We have a situation with Contra Costa County public officials using their authority on an
arbitrary and ad hoc basis, without adequate objective conm3ls. In the process they have
ittfiznged on the First Amendment right to solicit charitable 2nd political contributions. This is
evidenced by staff's (1) wrongly characterizing the activity as"commercial", (2) prejudging that
a use permit could never be issued, and (3) issuing an overly broad threat of code enforcement.
This is exactly the situation feared by the United States and California Supreme Courts-
If the Board of Supervisors truly believes that such fundraising activities should be
1 regulated, then the only proper means is to adopt an ordinance covering this topic, narrowly
drawn to respect constitutional rights. That ordinance then must be evenly applied throughout
ithe county. Every fundraiser on residential property would have to be regulated: small-scale
TX t--LS/203589-2
I
05/29/2001 14:28 FAX 925 2565975 U007/00i
Contra Costa County Board of Supervisors
May 29, 2001
Page 5
benefits for local schools and youth sport teams; meet-the-candidate parties; and galas held to
support chanties.
These types of events at private residences are no secret; they are common throughout the
County. I am sure that each Supervisor is frequently invited to such fundraising events.
Requiring a land use permit under current County Codes would be unconstitutional; imposing
any type of permit requirement would be an unreasonable—and unnecessary—burden.
The County always has the opportunity to declare that an event is a public nuisance and
take appropriate action— within constitutional limits. 1,4r. Scher has held a variety of events on
his property during the past 13 years, both family gatherings and fundraisers for political,
religious and cliaritable causes —some with live entertaitunznt and many more guests than
intended for the Parkinson's Institute benefit —without once h2ving the police called, a nuisance
complaint filed, or a neighbor cornplaming directly.
This situation has had a chilling effect on Mr. Scher's Ilse of his own home. He had
considered holding other fundraising events,but now cannot make any plans. The Board must
uphold this appeal, declare the stage and amphitheater lei:.: accessory uses of the property,
cancel staff's threat of enforcement action, and direct tl;at N::. Scher may host charity and
political fundraisers without intimidation or harassment.
Sincerck-
ARCHER NORRIS
Edward L. Shaffer
ELS.-la
eIlcl.
cc: Members, Board of Supervisors
Dennis Barry,Director.of Community Development
Catherine Kutsuris, Deputy Director
Greg Staffelbach, Building Inspection Department
Diane Silver, Deputy County Counsel
J Danny Scher
7?Q?IS/203589-2
Danny Scher
500 Coventry Road •Kensington, CA 94707
510/526-6511•Fax: 510/526-6522
April 3, 2001
Ms. Aruna Bhat
Contra Costa County
Application and Permit Center
651 Pine Street, Fourth Floor
Martinez, CA 94553
Re: Legal non-conforming amphitheatre and stage
500 Coventry Road
Kensington, CA 94707
Dear Ms. Bhat:
This letter is to respectfully request that the amphitheatre and stage that has been on my
property since 1924 be given "legal non-conforming" (grandfather) status.
Joel Hildebrand built the house I live in at 500 Coventry Road in Kensington, CA in
1924. The natural bowl, which is part of the property, has ahvays been the seating area
for a stage, which he constructed shortly after the house v,as built. The stage was built
for his daughter, Louise, who wanted to be a dancer. The stage and amphitheatre have
been used since the 1920's to hold parties, weddings, anniversaries, benefit concerts,
fundraisers, Bat Mitzvahs and Bris (Jewish religious ceremonies).
As proof that this stage existed prior to March 1947, enclosed please find the following:
• Pictures of the amphitheatre taken sometime in the 1920's and in March 2001.
You will note that there were no trees around the stage in the earlier photos, but
there are very large ones there now. Also, there vias no Bay Bridge in the
former, which was built in 1939.
• Notarized statement from Louise Hildebrand Klein attesting to the fact that the
stage was built for her as a young girl and how it has been used since the
1920's.
• Notarized statement from Milton Hildebrand, Louise's brother, attesting to the fact
that the stage was built for his sister and that he has recollections of it being
constructed. He also remembers it being used for weddings and parties.
• Notarized statement from Roger Hildebrand, Louise's brother, stating that his
father had the stage built around 1932, or earlier, for his sister, Louise, on which
to dance and have parties.
Ms. Aruna Bhat April 3, 2001 Page 2
• Copy of wedding invitation of Louise Hildebrand and Ferdinand Klein inviting
people to their wedding at 500 Coventry Rd., Kensington (on the stage) on
September 20, 1941.
• Copy of wedding invitation of Roger Hildebrand and Jane Roby inviting people to
their wedding at 500 Coventry Rd., Kensington (on the stage) on May 28, 1944.
• No deed restrictions per attached Chain of Title Guarantee.
• Copies of all building permits.
It would be a great relief to all of us to have the stage receive the "legal non-conforming"
status, since it has been here and been used since the mid-1920's. We look forward to
receiving your agreement and positive response.
Regards,
Daniel L. Scher
Owner
Enclosures
JG-v tJO JC�r T
MHf<- rJ-V1 wt_L VJ =::r< r•• ,�c • c` • _�.� `- �. . - - �.
Danny Scher 500 Coventry Road • Kensington, CA 94707
510/526-6511 • Fax: 510/526-6522
Dear Neighbors:
Recently you have received anonymous notes about the work I am doing in my yard. I thought I would
take this opportunity to explain what I am doing and to set the record straight.
History .
Joel Hildebrand built my house in 1924 to replace his house that burned down in the 1923 Berkeley fire.
His parcel of land originally consisted of a much larger piece of property that was eventually divided to
construct other houses,including one in which you may be living. Ultimately,he kept for himself and his
faruily the piece of land where I presently live. This piece of land always included a natural amphitheatre.
Shortly after constructing the house,he added 11 the stage for his daughter,Louise Hildebrand Klein.,who
wanted to be a dancer as a young girl,and who is an adjoining neighbor of mine at 550 Coventry Road.
The grounds,amphitheatre,stage and beautifully designed John Hudson Thornas house were the reasons I
chose to purchase the property in 1988.
Uso
Since the 1920's,the stage and amphitheatre have been used for large private parties and fundraising ac-
tivities. Besides Louise's dance performances as a young l::r:.otbcr events held on the sta-4 include nu-
merous weddings(including Louise's and her 50th weddirig a .hiversary),Bris,Bat Mitzvah parties,recep-
tions for film directors of the San Francisco Jzwish Film Fesuval,birthday pathos and political fundraising
events. It has also been used for large catered lunches,diaz. ,.nd classical music performances ihat have
been auctionea off by the Kensington Hilltop Element3iy ccbc l Garden Party. Guests have included a
past California State Governor,current U.S.Congressnian. `:veal successful school board candidates,
Grammy Award Winners,and leaders of business. Alam- events have had over 250 people, with-
out impacting my neighbors.
My newly landscaped home and backyard, which are witbn compliance of County standards,will be used
ptimarily for my own personal enjoyment. Occasionally,itµill be used to continue the established tradi-
tion of non-profit fundraising events. One such charity is t.-.c Parkinson's Institute for whozi i will hold a
benefit on May 20. -
Parking
Shuttle transportation will be provided for my guests and thc*e N1,ishing to park on the street will be told to
park only in legal places- Parking has never been a probler n for any event that has been held here,and I
expect this tradition to continue,as well.
a Kensington is a wonderful community where my children attend school and where we have lived for thir-
teen years. Our neighborhood is as much my home as it is fours,and you will find that nay events in the
future will have as little impact on you as they have had in tae past.
If anyone would like a personal tour of the landscaping I arr doing,please give me a call;and I «ill gladly
show you around.
Regards,
Danny Scher _ 6
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To confirm a non-conforming status as required by Chapter 82-4 of the Contra Costa Coun _
Ordinance Code, I hereby certify that the site listed below leas been used for 1^ c•,.
A,K�s��6trc�enp
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con its g maw r H(ec corin.nuously front aaer*e t-cS,Aerice.tvas. b,
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Print Name -{- Signature
Address Telephone
SLKMRIBE ID SWORN TO BEFORE1 ETNAN SMITH
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To confirm a tion-conforming-status as required by Chapter 82-4 of the Contra Costa .County
Ordinance Code, I hereby certify that the site listed below has been used for t:-A
Lr n r:[yr+s z PA - continuously from �-
Address ;?616f
Parcel No.
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I declare under penalty of perjury that the foregoing is true arra correct, warted on
at �S California.
Print Nance Signature
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Address CA `15W& Telephone LYNN CHRISTENSEN
Comm sslon#1239287
MIS STATEMENT SHALL BE NO ED = Notary Puutr-—Collfomic
Polo County
t4 Comm bpi-es Nov 19.200
4-I, State:
To confirm a non-conforming status as required by Chapter 82-4 of the Contra Costa County
Ordinance Code, I hereby certify that the site listed below has been used for
uously from
Address
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THIS S7i17'EMF.N7'SIfALL-�3F>\_OTAI:I7E1) NOVICH
OF ILLINOIS
S 5/28/2004
Kensington Improvement Club
103 Highland Blvd.
Kensington,Ca. 94708 j ! / I'i'f 02
June 21, 2001
John Gioia, Supervisor District 1
Contra Costa County Board of Supervisors
11780 San Pablo Avenue, Suite D
El Cerrito, California 94530
Re: Amphitheatre and Stage at 500 Coventry Road, Kensington, California
Dear Supervisor Gioia:
We write to you on behalf of the Board of Directors of the Kensington Improvement Club("KIC"). As you may know,
KIC is the oldest civic organization in our community and our mernbership includes over 700 households. Periodically the
KIC Board takes a position on matters affecting(lie public interest,such as the appeal of Mr. D. Scher from the decision of
the Conummnity Development Department denying permission to Mr. Scher fix use of a!i antnhitlicatre at tris residence
located at 500 Coventry Road as a legal non-conforming use- The KIC Board tklieves that the decision of the Community
Development Department denying such permission tvas and is correct_and flim such denial should be affirmed by the
Board of Supervisors on Ilse pendinf;appeal.
The Coventry Road area, indeed, almost all of Kensington is zoned as R-i' residential property. "The proposed use of Ilse
newly constnrcted aniphitheatre for concerts appears to be commercial in o-"\. respect, notwithstanding that the applicant
may intend to turn net profits over to various charities. We understand that.IJP ell ising,advance ticket sales,and service of
alcoholic drinks to audiences of up to 250 people at a time are intended to,\:eur m the proposed events. Such use, if
approved, would set a precedent that would affect our entire conununit\.
Along that area of Coventry there are no sidewalks,and in some ptaces. I\"' can pass each other only w illi great
difficulty if there are any cars parked on the road- Although Mr. Scher mmany representations regarding what he
will Its,to do to ameliorate the profound(} negative impact of a defuse of t,,ojil: in such a small area, it is unlikely such
efforts could avoid the imposition of an extraordinary burden upon neiLlit�� Mr. Scher cannot effectively prohibit
attendees from traveling to the site by car, nor can lie guarantee their con-l:;l. t%hether they have been drinking alcohol or
in getting emergency vehicles ani p;rsonnel to the area could be substantially
not. If there is an emergency, the difficulty
increased.
The amphithcatre.is located in a canyon, and even unamplitied sound cch :s Through and up the slope. That segment of
Coventry Road (and its surrounds) is extremely quiet and bcatitiful- rr- Cl- the community at large would be adversely
affected by such noise_
Should an eleemosynary use permit be requested,the KIC Board belie-es 111-11 the eery sante issues wllich concern us on
this appeal would prevail and the request should be refused.
We trust that the Board of Supervisors will affirm the decision of the Conlnlunin Development Department,and in so
doing,preserve the integrity of the zoning process. This process has prot:a:d all of Kensington's residents including(hose
of the dignified and beautiful Coventry Road area.
Very truly yours,
Linda G. Lipscomb Gloria Morrison
Board President Board President EIL
cc: Federal Glover,Supervisor District 5
Mark DeSaulnicr,Supervisor Disbict 4
Donna Geiber,Supervisor District 3
Gayle Uilkenra,Supervisor District 2
Dennis Barry,Dir,Community Development DeparLnent
Catherine Kutsuris,Deputy Dir_,Conuuunity Development Department
Aruna 13ha1,Planning Division Manager,Conununity Development Department
June 27, 2001
Supervisor John Gioia
Contra Costa County - I" District
11780 San Pablo Ave. Ste. D
El Cerrito, CA 94530
With copies to:
County Board members, Federal Glover, Mark DeSauliner. Donna Gerber& Gayle Uilkma;
Community Development Department, Director Dennis M Barry, Deputy Director, Catherine
Kutsuis, and Manager Aruna Baht,-
Kensington
aht;Kensington Municipal Advisory Council Chair, James Carmen
Dear Supervisor Gioia,
We are writing to you in regard to Mr. Danny Scher's recenfl, constructed amphitheater and its
planned use at tits property at 500 Coventry Rd., Kensingtot:. C-N
Mr. Scher has filed an appeal with the Contra Costa Count\ Board of Supervisors to overturn a
ruling by the Contra Costa County Community Development Department which has denied him a
legal non-conforming use. perniit to conduct concerts at tha_ re We have been informed by that
department that a hearing; on this appeal will be scheduled 00 PM on July 17, 2001 at the
Board of-Supervisor's meeting.
We, who are Kensington residents and neighbors of Mr. Sci,:` x�Ish you to know our position on
this matter.
Mr. Scher contends that lie is entitled to a non-conforming us: permit (grand-fathering) based on
tris claire that the concerts which he intends to hold at tits nex� amphitheater are no different than
events held at that site in the past. We strongly disagree. Nothing on the scale which Mr. Scher is
proposing has occurred in the. past. A number of the residents xNhose signatures appear below
have lived in the immediate area of the amphitheater for more than 50 years and can attest to the
long-term history of the use of this site. Their experience contradicts Mr. Scher's claims.
We fully support the Contra Costa Community Development Department's opposition as stated in
Ms. Catherine Kutsuris letter dated April 23, 2001 addressed to Mr Scher.
in addition, the concerts planned by Mr. Scher raise the follouim, concerns:
- increased levels of noise from amplified music and front concert attendees
- excessive night-time illumination
- potential sanitation problems for large crowds
- traffic.congestion & parking (legal & otherwise)on our narrow streets
Continued
June 26, 2001 leller to Supervisor John Gioia continued
- adverse effects on emergency response time in a high fire hazard area when concerts
are held. 250 attendees scrambling to evacuate to their transportation could severely
interfere with fire fighting equipment and efforts
- potential security, behavior and fire risk problems because of liquor being served to a
large number of people
- large numbers of additional people in an otherwise quiet residential area and the
loss of the privacy the neighborhood has enjoyed
- significant reduction in property values(one property owner has already been informed
of such devaluation of his property from the construction of the amphitheater.)
Mr. Scher's planned commercial events are totally inappropriate for this otherwise quiet and
peaceful neighborhood.
Should Mr. Scher Still wish to gain a permit for commercial events at his site, he should be
directed to submit a request for a land use permit so that it can be subjected to the normal review
process.
Therefore., «ve respectfully ask you and the other members of the Contra Costa County Board of
Supervisors to reject Mr. Scher's appeal.
"Thank you for your consideration.
Sincerely,
SIGNATURES: ADDRESSES:
5S� C(,, !&,AJ17LY RD
Z2 611
2 7cc,�w
June 26, 2001 letter to Supoervisor John Gioia continued
SIGNATURES: ADDRESSES:
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June 26, 200! letter to Supervisor John Gioia continued
SIGNATURES: ADDRESSES:
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Jime 26. 2001 letter to Supervisor.),ohn (;ioia continued
ADDRESSES:
SIGNATURES-.
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June 4te, 2001
Ms. Aruna Bhat, Principal Planner
Community Development Departn( hQU Cpga f o2V
651 Pine Street,4h Floor,North Wing
Martinez, CA 94553-0095
Dear Ms. Bhat,
As you know, we have been very concerned with the planned public use of the"amphitheater"at
500 Coventry Road,adjacent to our property at 10 Kenilworth Court, in Kensington.
We have received a copy of the letter sent to Mr. Scher by Catherine Kutsuris dated April 23,
2001, as well as a copy of a subsequent letter to Ms. Sun-Look dated May 11, 2001 clarifying the
appeal period. Based on our knowledge of past use of the property at 500 Coventry Road as
related by neighbors who have lived in this area for as long as 40-50 years, the arguments that
Mr. Scher allegedly used in applying for"legal non-conforming use"do not reflect the actual
historic use. We strongly support the position that Ms. Kutsuris has taken in denying Mr. Scher's
request.
We now understand that Mr. Scher has formally appealed this derision and that there will be a
hearing on July 17`h to be held in Martinez. We hope that the Board of Supervisors will affirm
your earlier decision. We will be present at this hearing.
If Mr. Scher should apply for a land use penrut at a later date. % e hope that we will have an
opportunity to voice our additional concerns. These include the issues of: (1) public events in a
residential neighborhood, (2)changes in the nature of the neiehborhood that use of the
"amphitheater" will create, (3) reduction of property values in the neighborhood, (4) concerns
about the safety and security of the neighborhood, (5)logistical problems that will arise(traffic
congestion, parking, liquor sales, sanitation facilities, fire hazards. access to and from
neighboring resident's homes, noise from an amplified outdoor-sound system, and intrusive
lighting from tree-and ground-based lighting systems),and(6)ri_hts of residents to the quiet
enjoyment of their homes and property.
Thank you for your consideration.
Sincerely yours,
G rge and Gloria Kv4
10 Kenilworth Court
Kensington, CA 94707
(510)559-3777
kwei l tcr&Ilrtl. ov
Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue.El Cerrito, CA 94530
Director Dennis Barry, Community Development Dept.,Contra Costa County
Dep. Director Catherine Kutsuris, Community Development Dept.,Contra Costa County
Mr. James Carmen, Chair, Kensington Municipal Advisory Council
Mr. Robert Giusti, 112 Willow Lane, Kensington,CA 94707
June 9,2001
Ms.Aruna Bhat, Division Manager ( � -
Community Development Department,Contra Costa County 00
651 Pine Street,e Floor, North Wing
Martinez,CA 94553-0095
Dear Ms. Bhat:
We understand that the Contra Costa County Community Development Department is preparing a
submittal to the Board of Supervisors regarding Mr. Danny Scher's proposed property use for
commercial fundraising concerts. Apparently, Mr. Scher's appeal of the County's denial is based
largely on alleged prior continuous use of the property for such events.
Our home for the past 34 years has been at One Marchant Court, Kensington, and Mr. Sche(Is
property at 500 Coventry Road is less than 500 feet away. The Wiers of 500 Coventry, prior to Mr.
Scher,were the Hildebrands, and they had a small stage area in the yard which they occasionally used
for personal entertaining,including university friends and colleagues of Professor Hildebrand. We were
never aware of any commercial uses of the property by the Hildebrands such as those planned by Mr.
Scher.
We moved to Kensington because we treasure the quiet, residential atmosphere and the respectful
attitude of our neighbors. It is astounding to us that Mr.Scher would propose to hold amplified concerts
for up to 250 attendees in a neighborhood never planned or zoned for such use.
The County has our strongest support for their position against Mr. Scher's proposed commercial use
of the.property and we will attend the July 174' hearing in order to lend our support to the denial of Mr.
Scher's appeal..
Respectfully yours,
William R. Buehring
and
C. Buehring
One Marchant Court
Kensington,CA 94707
Supervisor John Gioia
100 37th St. Room 270
Richmond, CA . 94805
Dear Supervisor Gioia, --
�c�
I have lived in Kensington for 55 years . A .rock star
moved into our neighborhood three years ago. We have
successfully struggled to get. him to soundproof a
room inside his house, which he used for practicing .
Even though his small band was inside the house, we
found it diffigplt to hold a conversation on our deck
or to sleep a Cnight.
Now I am appalled to hear that Da"111Y Scher, formerly of
Bill Graham presents , wants to subject Kensington residents
to ou*door , fully amplified concerts at 500 Coventry Road.
This is clearly an invasion of privacy and breaks all
residential zoning .lawb;
I commend. the Supervisors for tur::ing him down the first
time aroundand hope that the legal appeal battle which
is apparently shaping up will not change your minds .
We, in Kensington, say "NO LOUD Ci.-':HERCIAL AND BENEFIT
CONCERTS IN OUR NEIGHBORHOOD" .
I cannot imagine the traffic and narking problems. it
would involve.
You are our governmental leaders, as we have no city council .
The County has always been fair an-,4 abided by the zoning in' Ke
sington. Please do it again..
CcMially,
Joan M. Haber
86 Norwood Ave.
Kensington, 94707
510-526-7205
cc Dennis Berry
Community Development Director
County Administrator
of iL", _5 Fii 3: 03
Joan K. Groom
464 Coventry Road
Kenisington, CA 94707
June 3, 2001
Ms. Aruna Bhat
Community Development Department
County Administration Building
651 Pine St. 4`h Floor, North Wing
Martinez, CA 94553-0095
Dear Ms. Bhat;
I urge you to deny Mr. Scher's appeal to consider his planned event as a
legal non conforming use. The planned concerts are fundamentally different
than any activity that has previously taken place on that property.
In the 50 plus years I have lived here or been here on a regular basis, there
were never any concerts, public or private, until Nlr. Scher moved in, in
1988. Prior to that the property was use for small private or family
functions; not public, commercial affairs consisting of as many as 250
people, amplified music and liquor.
I don't want to see the quiet, peaceful neighborhood shattered by loud music
and extreme traffic congestion.
Thank you for taking our concerns on this matter into consideration.
cerely,
J an K. Groom
Cc: Supervisor John Gioia
June 4u', 2001
ll I Jul-I 5 P p
Ms. Aruna ci al Planner
Community Development Department, Contra Costa County
651 Pine Street,4`h Floor,North Wing
Martinez, CA 94553-0095
Dear Ms. Bhat,
As you know, we have been very concerned with the planned public use of the"amphitheater"at
500 Coventry Road, adjacent to our property at 10 Kenilworth Court, in Kensington.
We have received a copy of the letter sent to Mr. Scher by Catherine Kutsuris dated April 23,
2001, as well as a copy of a subsequent letter to Ms. Sun-Look dated May 11, 2001 clarifying the
appeal period. Based on our knowledge of past use of the property at 500 Coventry Road as.
related by neighbors who have lived in this area for as long as 40-50 years, the arguments that
Mr. Scher allegedly used in applying for"legal non-conforming use"do not reflect the actual
historic use. We strongly support the position that Ms. Kutsuris has taken in denying Mr. Scher's
request.
We now understand that Mr. Scher has formally appealed this decision and that there will be a
hearing on July 17`h to be held in Martinez. We hope that the Beard of Supervisors will affirm
your earlier decision. We will be present at this hearing.
If Mr_ Scher should apply for a land use permit at a later date. N,e hope that we will have an
opportunity to voice our additional concerns. These include the issues of: (1)public events in a
residential neighborhood, (2)changes in the nature of the neiLhborltood that use of the
"amphitheater" will create, (3)reduction of property values in the neighborhood, (4) concerns
about the safety and security of the neighborhood, (5)logistical problems that will arise(traffic
congestion, parking, liquor sales, sanitation facilities, fire hazards. access to and from
neighboring resident's homes, noise from an amplified outdoor sound system, and intrusive
lighting from tree-and ground-based lighting systems), and(6)nights of residents to the quiet
enjoyment of their homes and property.
Thank you for your consideration.
Sincerely yours,
George and Gloria Kwei
10 Kenilworth Court
Kensington,CA 94707
(510)559-3777
kwei l P,,llnl.goo
Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue,El Cerrito, CA 94530
Director Dennis Barry, Community Development Dept_,Contra Costa County
Dep. Director Catherine Kutsuris, Community Development Dept., Contra Costa County
Mr. James Carmen,Chair, Kensington Municipal Advisory Council
Mr. Robert Giusti, 112 Willow Lane, Kensington,CA 94707
June 4"',2001
UI Jt�sd —5 PH 3: 02
Planner
Ms. Aruna Bhat, Principal
Community Development Department,Contra Costa County
651 Pine Street, 4"'Floor,North Wing
Martinez, CA 94553-0095
Dear Ms. Bhat,
As you know, we have been very concerned with the planned public use of the"amphitheater"at
500 Coventry Road, adjacent to our property at 10 Kenilworth Court, in Kensington.
We have received a copy of the letter sent to Mr. Scher by Catherine Kutsuris dated April 23,
2001,as well as a copy of a subsequent letter to Ms. Sun-Look dated May 11, 2001 clarifying the
appeal period. Based on our knowledge of past use of the property at 500 Coventry Road as
related by neighbors who have lived in this area for as long as 40-50 years, the arguments that
Mr. Scher allegedly used in applying for"legal non-conforming use"do not reflect the actual
historic use. We strongly support the position that Ms. Kutsuris has taken in denying Mr. Scher's
request.
We now understand that Mr. Scher has formally appealed this decision and that there will be a
hearing on July 1.7`h to be held in Martinez. We hope that the Board of Supervisors will affrrn
yourearlier decision. We will be present at this hearing.
If Mr. Scher should apply for a land use permit at a later date. v.e hope that we will have an
opportunity to voice our additional concerns. These include the is-ues of: (1)public events in a
residential neighborhood, (2)changes in the nature of the neighl,rhood that use of the
"amphitheater" will create, (3)reduction of property values in L;.e neighborhood, (4)concerns
about the safety and security of the neighborhood, (5) logistic l problems that will arise(traffic
congestion, parking, liquor sales, sanitation facilities, fire haza,,J& access to and from
neighboring resident's homes, noise from an amplified outdoor-sound system, and intrusive
lighting from tree- and ground-based lighting systems), and(6)ri,'hts of residents to the quiet
enjoyment of their homes and property.
Thank you for your consideration.
Sincerely yours,
tG1dKGIoria -wei
10 Kenilworth Court
'4 Kensington,CA 94707
(510)559-3777
kwei 1 PIlnl.gov
Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue, El Cerrito, CA 94530
Director Dennis Barry,Community Development Dept,Conus Costa County
Dep. Director Catherine Kutsuris, Community Development Dept., Contra Costa County
Mr.James Carmen, Chair, Kensington Municipal Advisory Council
Mr. Robert Giusti, 112 Willow Lane, Kensington,CA 94707
554 COVENTRY ROAD
BERKELEY, CALIFORNIA 94707
( ,�� �10 q4 Baht, Division Manager,Community Development Dept.,Contra Costa
.S 3
Re: Sher Ampitheater, 500 Covntry Rd,Kensington
Dear Ms. Baht,
I have lived at 554 Coventry Road in Kensington since March of 1957,almost 44
years. The rear of my two large lots on Coven try Road abut Sher's property directly
above his new ampitheater and fireplace gathering area.
I know the area well. We were not only neighbors but good friends of the original
owners, Joel and Emily Hildebrand and many of their family. We celebrated many
occasions together over the years. In all that time, the only use of the area was for family
gatherings—never with loud music and certainly never xi-ith use of microphone,
amplification or bright lights.
The area was just a sloped woodland, at the bottom of which Joel had built a
crude platform where his daughter Louise danced and xN-as married back in the late 20's
and 30's. There were no seats.
I cannot imagine how Sher could invade our quier residential neighborhood and
inflict his extravagant dreams on us and contravene all normal zoning by-laws with all
its accompanying negative aspects, such as amplification of sound, lighting, parking
congestion on our narrow, winding streets,commercialism and depreciation of property
val ues.
We are depending on you,our County Authorities. i.� prevent this encroachment
and appreciate your help in this upsetting and painful m2;ier-
Sincerely, 1
?can Kukulan Reilly
6�lr
r,
To 4)-116
Date: Sat,05 May 2001 14:41:32 -0700
To: ccc—cdd@Pyahoo.com
From: "Toni (J Folger-Brown)"
Subject:Non-conforming use permit for Scher's Coventry Rd. property
CC: thoyer@uclink4.berkeley.edu
Catherine Kutsuris,
I am responding to the last of several news paper articles regarding Dan
Scher's desire to hold benefit concerts at his Coventry Road. Kensington
residence. My husband and I were apparently not available when the
petition was being signed, but since this amphitheater is located directly
across the street from our residence, we support the Counties decision to
deny Scher's request to hold events. My parents built my home in 1937 and
I have lived in it most of my life(starting in 1942). My parents are
still Kensington residents, at another location, and none of us remember
any events that the Hildebrant's held as being disruptive because they were
generally family events with much less than 250 participants. most of which
were held before the area was developed and filed with vehicles. I know
several near residents that have lived in this area since the 1930's and I
would find it very hard to believe that Scher could find ani one other than
Louise Klein who would concur with his view that this property has been.
used to hold events of the type and scale that he plans to put o»- He is
selling tickets, will sell alcohol, will amplify the sound and t!ndoubtedly
will fill the neighborhood to overflow with cars.
I would like to be informed if there are any future hearings.etc.
regarding this situation. We are both definitely opposed to amphitheater,
and feel that it does not fit the definition required for nonconforming use.
J Folger-Brown
Timothy P. Hoyer
555 Coventry Road
Kensington,CA 94707
510.526.8794
Do You Yahoo!?
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April 20'', 2001
Catherine Kutsuris, Deputy Director U/��
Community Development Department,Contra Costa County
651 Pine Street,40'Floor,North Wing
Martinez,CA 94553-0095 /0
Dear Ms. Kutsuris,
We have been very concerned with the construction of an amphitheater with seating for
250 at 500 Coventry Road in Kensington,CA,and its planned public use.
It is our understanding that the use of this land(owned by Danny Scher and zoned
Residential), for jazz concerts and other public events of comparable scale, would be in
violation of the zoning code unless a Conditional Use Permit or a Land Use Permit is
granted. A public hearing should be held so that affected neighbors can voice their
concerns about potential impacts on the safety and securit-v in the neighborhood,and to
make sure that such a Permit would not change the character of the neighborhood. To the
best of our knowledge, this has not yet happened.
The first such event will be a benefit for the Parkinson's Disease Foundation, to be held
on May 20`h this year. Additionally, we have learned that the Foundation has applied for a
one-day license from the Department of Alcoholic Beverages in Oakland to sell alcoholic
beverages.
We are trying to arrange for a meeting with Mr. Scher after his return on May 15`h from
abroad to see if we can work out any of the differences. Hcmrever we would like for you
to know prior to the first planned event that, if the talks do not work out, we will be
making a request for a public hearing to discuss our vie%;s on the granting of a permit.
This way, informed decisions can be made by the Country as to whether such a variance
should be granted for large public events in a Residential area-
Sincerely yours,
teld Glori�aK w e
10 Kenilworth Court L L rt
Kensington,CA 94707
(510) 559-3777(home)
(925)422-9311 (work for George)
(925)422-9380 (work for Gloria)
kweil@IW.gov
May 15,2001
Catherine Kutsuris, Deputy Director
Community Development Department,Contra Costa County
651 Pine Street,4'h floor, North Wing
Martinez,CA 94553-0095
Dear Ms. Kutsuris,
I am writing because I have learned that Danny Scher is appealing the county's decision
not to allow him to stage concerts at his 250-seat amphitheater at 500 Coventry Road in
Kensington. He is appealing this decision,he says in a letter sent out to neighbors, "on
the grounds that the amphitheater has been used for similar nonprofit fundraisers over the
years." c
I grew up across the court from 500 Coventry at 2 Kenilworth Court from 1951 to 1970;z
lived next door to my mother from 1989 to 1997, and moved back into my childhood --
home in'97, after my mother had a stroke. During the years from 1970-89, I lived in
North Oakland and visited my mother frequently, so I am very aware of what went on az
the Hildebrands' at 500 Coventry. As a child, I was at the Hildebrands' house often,
played on the ballfield every summer, and helped Joel Hildebrand clean his fish pond W
many times. Not once did I ever see a concert, nonprofit or otherwise, held in the
"amphitheater"--except after Danny Scher bought the property. In fact, during a recent
conversation I had with Louise Hildebrand Klein,Joel and Emily Hildebrands' daughter
and apparently the "witness" to these concerts, she admitted to me that she thought of the
area as an amphitheater only because of its shape and not its use(I had never before
heard it referred to as such), and that it had never been used in the way that Danny
intended. The fact that Louise had a couple of dance recitals there in the '20s hardly
constitutes prior use.
I might also add that there were never seats or benches in this supposed "amphitheater"--
it was a lovely stretch of ivy and plants until Danny put in redwood benches and then
rock and flagstone.The only fundraisers that have been held at 500 Coventry have been
Danny's--and each time his parties have created a parking and litter problem. It's become
a neighborhood joke that"it's time to leave town because Danny's having a party." I can
hardly imagine what 250-person affairs would be like.
But the main reason I'm writing is because it truly upsets me that history would be
"stretched" in this way.Joel and Emily Hildebrand were eery particular about respecting
the truth--and that is a "prior use" we should all follow.
Sincerely,
Linea Due
2 Kenilworth Court
Kensington, CA 94707 (510)525-8981
`
Community Dennis M. Barry,AICP
Contra Community Development Directoi
Development Costa
Department County
County Administration Building SE�
,•:�`�`may,
651 Pine Street
4th Floor,North Wing `
Martinez,California 94553-0095 • • b',_;,;,
Phone: (925) 335-1276
May 29, 2001
Ms. Jean K. Reilly
554 Coventry Road
Berkeley, CA 94707
Dear Ms. Reilly:
I am in receipt of your letter dated May 21, 2001 regarding the activity at 500
Coventry Road in Kensington on May 20tH
I am requesting that staff include your letter in any report to the Board of
Supervisors on Mr. Sher's appeal of our determination rejecting his assertion
that a legal non-conforming use has been established, i.e., he claims
"grandfathering rights." A hearing on the appeal is tentatively scheduled
before the Board of Supervisors on Tuesday, July 17, 2001 at 1:00 p.m.
Hearings are held in the Board of Supervisors chambers, 651 Pine Street, 1"
Floor, Room 107, Martinez, California.
If you need additional information, please contact Ms. Aruna Bhat, Project
Planner, at 925.335.1219.
Sincerely,
!v:AIC
Dennis M. Barry,
Community Devent Director
DMB:gms
dmb5/Reilly—amphitheater Itr _
c: Catherine Kutsuris,Community Development Department
Aruna Bhat,w/endosure
Office Hours Monday - Friday:8:00 a.m.-5:00 p.m.
Office is closed the 1 st, 3rd & 5th Fridays of each month
r ~
554 COVENTRY ROAD
4707
BERKELEY, CALIFORNIA9
01 i s-A 23 i U 7 71,1)Orj
�r//
-.
57
1 / _
• �,d1�inZ,lG-fly'
GL
t
/4f � �
°Toni(J To: abhat®cd.co.contra-costa.ca.us
' Folger-Brown)"
dhoyer@ uclink4.berk
eley.edu> cc:
Subject: Fwd:Non-conforming use permit for Scher's Coventry Rd. property
05/24/2001 01:09 PM
Aruna Bhat,
Per our recent phone conversation, below is the email message that I sent
Ms Kutsuris. I believe that it covers most of the issues that we discussed.
I would like to know how we should proceed should Mr. Scher's permit
request be denied and he holds events anyway. you said that- a valid
complaint might require the presence of an officer of the court (to
validate the complaint) . Since the neighbors may not know in advance that
concerts are planned, could the Kensington Police validate the complaint?
If this is not something that you normally handle could you refer me to
someone that does -- please. A name and an email address would be great.
Thank you for help! -toni
>X-Sender: thoyer@uclink4.berkeley.edu
>X-Mailer: QUALCOMM Windows Eudora Pro Version 4 .0- 1
>Date: Sat, 05 May 2001 14:41:32 -0700
>To: ccc_cdd@yahoo.com
>From: "Toni (J Folger-Brown) " <thoyer@uclink4.be=-!eley.edu>
>Subject: Non-conforming use permit for Scher's co entry Rd. property
>Cc: thoyer@uclink4.berkeley.edu
>Catherine Kutsuris,
>I am responding to the last of several news pape_" articles regarding Dan
>Scher's desire to hold benefit concerts at his Coventry Road, Kensington
>residence. My husband and I were apparently no-- available when the
>petition was being signed, but since this amphit-eater is located directly
'>across the street from our residence, we support -he Counties decision to
>deny Scher's request to hold events. My parents built my home in 1937 and
>I have lived in it most of my life (starting in 1942) . My parents are
>still Kensington residents, at another location, and none of us remember
>any events that the Hildebrant's held as being disruptive because they were
>generally family events with much less than 250 participants, most of which
>were held before the area was developed and filed with vehicles. I know
>several near residents that have lived in this area since the 1930's and I
>would find it very hard to believe that Scher could find anyone other than
>Louise Klein who would concur with his view that this property has been
>used to hold events of the type and scale that he plans to put on. He is
>selling tickets, will sell alcohol, will amplify the sound and undoubtedly
>will fill the neighborhood to overflow with cars.
>I would like to be informed if there are any future hearings, etc.
>regarding this situation. We are both definitely opposed to amphitheater,
>and feel that it does not fit the definition required for nonconforming use.
>J Folger-Brown
>Timothy P. Hoyer
>555 Coventry Road
>Kensington, CA 94707
>510.526.8794
>