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MINUTES - 09252001 - D.3
F.,...L TO: BOARD OF SUPERVISORS Contra FROM: DENNIS M. BARRY AICP Costa COMMUNITY DEVELOPMENT DIRECTOR s� County DATE: SEPTEMBER 25, 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 �Faw r63W 1-\ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMIT E APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON September 25, 2001 APPROVED AS RECOMMENDED XX OTHER SEE ATTACHED ADDENDUM FOR BOARD ACTION ' VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE AND XX UNANIMOUS(ABSENT None ) 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 Bhat 335-1219 ATTESTED September 25, 2001 cc: Catherine Kutsuris, Deputy Director JOHN SWEETEN, CLERK OF THE BOARD OF Danny Scher, appellant SUPERVISORS AND COUNTY A MINISTRATOR Diana Silver, Deputy County Counsel Michael Angelo Silva, Property Conservation Division, BID B , DEPUTY 'i F September 11, 2001 Board of Supervisors File#Z1019126 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 i 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. ADDENDUM TO ITEM D.3 September 25, 2001 On this day, the Board of Supervisors considered the hearing on the appeal by Danny Scher, of an administrative decision by the Community Development Department that the use of the stage and amphitheater for musical concerts is not a legal nonconforming use. Dennis Barry, Director, Community Development presented the staff report and recommendations. Also present was Aruna Bhat, Current Planning Division. The Board discussed the matter, the public hearing was opened, and the following people appeared to comment: Danny Scher, 500 Coventry Road, Kensington; Gloria Morrison, Kensington Improvement Club, 112 Windsor Avenue, Kensington; Robert Giusti, Coventry Neighborhood Group, 112 Willow Lane, Kensington; Ted Groom, Coventry Neighborhood Group, 464 Coventry Road, Kensington; Jack Walker, Coventry Neighborhood Group, 560 Coventry Road, Kensington; Joan K. Reilly, Coventry Neighborhood Group, 554 Coventry Road, Kensington; Joan K. Groom, Coventry Neighborhood Association,464 Coventry Road,Kensington; David Eikhorn, Coventry Neighborhood Group, 393 Coventry Road, Kensington; George Kwei, Kensington & Coventry Neighborhood Group, 10 Kenilworth Court, Kensington; Anthony Knight, 234 Williamette Avenue, Kensington; Ed Shaffer, Attorney for Appellant, 2033 N. Main Street, #800, Walnut Creek; Rosemary Stasek, 273-B Jessie Lane, Mountain View; Miriam Perkoff, 18 Hillside, Berkeley; James O'Dea, Seva Foundation, 2360 Dominic Drive,Novato; Elizabeth Groome, SF Jewish Film Festival, 5600 10`h Street, Berkeley; Deborah Lopez, 116 A Day Street, San Francisco; Susan Condon, 833 Hope Lane, Lafayette; Art Woodworth, 600 Coventry Road, Kensington; Kevin Burns, 7844 Eureka Avenue, El Cerrito; Robert Woodworth, 600 Coventry, Kensington; Dr. Sandra Curtis, Neighbor, 1020 Lassen Street, Berkeley; Joan Haber, 86 Norwood Avenue, Kensington; Teresa Ryan, 298 Grizzly Peak Blvd, Kensington; Matthew Kaufman, Thunderoad, Berkeley; Rena Rickles, Coventry Neighbors Group, 1970 Broadway, #1200, Oakland; Page 2 Scher,Danny The Chair then closed the public hearing. The Board continued to discuss the matter. Supervisor Gioia moved to uphold the decision by the Community Development Department that the use of the stage and amphitheater for concerts and events that are not accessory to the single family use of the residential property is not a legal non-conforming use and to deny the appellant's appeal of that decision; and declared that the physical structure of the stage and amphitheater are legal and not incompatible with the County's permit process. Supervisor Glover second the motion. Diana Silver, Deputy County Counsel, requested clarification from Supervisor Gioia if it was his motion that the use of the stage and amphitheater for concerts is not a legal non conforming use and also is not a use normally auxiliary to a single family residential district. . Supervisor Gioia responded that such use is not accessory to single family use and therefore not considered a permitted use in the R-6 District. Ms. Silver asked to also confirm that it is not a legal prior non-conforming use. Supervisor Gioia concurred. IT IS BY THE BOARD ORDERED that the public hearing is CLOSED; the appeal of Danny Scher of an administrative decision of the Community Development Department that the use of the stage and amphitheater for musical concerts is not a legal nonconforming use is DENIED; and the Community Development Department's decision is UPHELD, Kensington area. AONSIDER WITN JEFFREY PRICE & CO. 859 BALRA DRIVE RECD'_ EL CERRITO, CA 94530 SEP 1 9 2001 CLERK 8OARD OF SUPERVISORS September 18,2001 CONTRA COSTA CO. Contra Costa County Board of Supervisors _ c/o Clerk of the Board 651 Pine Street, Room. 106 Martinez, CA 94553 To The Supervisors of Contra Costa County: It has come to my attention that the County may have made a decision to deny a resident in the County ( Danny Scher, at 500 Coventry Road, Kensington, CA 94707) the right to hold non-profit, charitable events at his home. This appears, at least as far as I can tell, to be new with regard to current practices in the County. I myself, a resident of the County since 1983, have held such events, a number of which have included fund raising, with up to 50 people at my home. I was not aware that such practices were considered to be "commercial". It seems to me that if the County does intend to and eventually does deny such activity, it will have stepped clearly into the zone of restricting the free speech of its citizens. I hope to find that I am mistaken about this matter. Sincerely, Jeffrey S. Price, Ph.D. \ �t1 tai t� c �\ IT 'i 1 ., ,, ;; �, �; ,- ,� � ,t , � h ri r; r. L` i �! l' �- M. 1 �� .... ' /r( '� 7 �+ ...► 1� i� � � _.... �� r ii .,_.. tir -. t' ' I „.... �! ,r P t __.. _._ 7 ___--------- --- • illi : . RECEIVED ii it CONSIDER WITH Patrk�a OL** SEP 1 0 2001; �( CA 94707 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. it !!I' Ill i September 9, 2W1 I Clerk of the BoW of Supervisors Contra Costa County i 651 Pine SUwt, Room 1( 6 is Mw*wz, CA 94653 I' I iI Dear Clerk of ti 10 Board: 1 i As I am unable to attend the County Board of S s meati�on Tuesday, �' , Seproember 11th, 1 am writing to express my support for Darmy S~s Inion toll 'i I hold fhre bereft converts a year on hie property at 500 Cowdry Road. II I I two been a�reaNrner s►nq reskiM at 527 Co*My for over 20 years, and my i front door 19 applroMmakWy 304 fleet 6= Mr. Scher's amphitheater entrance. in thell past 19 years Ow Mr. Scher has lived in his home, I have nevem been boftred by .I e nY, event that has been herd on his property. The property is zoned in such a way would albw three eddttlonai houses do be i 1 built on the mme location as Va amphitheater. If Mr. Scher chose to do that, I bed�6l I' the Impact on the neighborhood, and,the entire coramur ty, would be far greater. II I A single family home generates approximately 10 vehicle trips a day. Three new h I 1 homes on the property would ther�edoie generates an addtlonal 30 veNde trips a day,,' 210 trips a week, 900 trips a month,for a.total of 10.800 trips a year. TNN potentaill II traftic impats, In add)5on to offer ye�r-mord Impacts on ttrl®commmty, would betar greater than this Sunday afternoon concerts a yew. I In choosing to keep the property as open space, and in a park-like, wooded set5rg, there Is reason to belielve that Mr. Scher's preferred use of the property will actualiyil j. increase property values to the property, and the neigtforhood. it Please feel lree to C VAct me N you have any questtons. I I' • I I Patrlcfa Quids I I (510) 5241651 I I I it i it 'I I' I II I i II II I i I I IIII li I I 'III Il II I i i i II I I II li II 'I II ' I I 6 I I' 1111 ' ' I I Ii I I II i ,� 1 i i ti } ,ti i� �` '1 4 }ti i tti ,` � ,` 1 t �� � �{ i E t 1 �t '� �, t '� �1 1 � � 4 1 � �' � '� I �1 '!� ,� ,� '1 �.r`` �1 'l 1 .. 'i �4 i t ' ,� ' s i }' J� REQUEST. TO SPEAR FORM 40 (THREE (3) MINUTE LIMIT) ► ! I Complete this form and place it in the box near the speakers rostrum before addressing the Board. II IIII ;! Name: 1219- _7 � � Phone: I I I�►I Address: i City: I am speaking for myself or organization: 1111111 I, ;l IIII I I�� I �iq I 'II (name of organization) I � CHECK ONE: � I I wish to speak on Agenda Item # !� Date: My comments will be-� general for against II IIII I II'I I wish to speak on the subject of 118111 Til I I do not wish to speak but leave these comments for the I ;I Board to consider. I II IIII I ,I� ►� II II II I i I��li I' II�II I II:III N N N.I I:I:ill I SPEAKERS 1. Deposit the "Request to Speak 11I form (on the reverse side) in the box next to the speaker's mlicrophone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. I 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. I 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . I` I • • `+ILII I '% I �Ijll I� I COVENTRY NEIGHBORHOOD GROUP I I SPEAKING ORDER FOR SCHER APPEAL HEARING HEARING •I;. i' i ,II it IN RE: 500 COVENTRY ROAD PROPERTY �� III I •II \ ►I II. I � , �I di (D- A) K I , I CovCrn�nl Ke),16 IJ1. BOB GUISTI 6. JOAN GROOM it II C9rorJp y !I 2. TED GROOM : 7. TONI FOLGER BROWN*1:J , II ' I 3. JACK-WALKER 8. GEORGE KWEI I 4. JEAN REILLY 9. RENA RICKLES :� IIII I ; ji I ' I' I I I' �I III I I I 5. LINNEA DUE ;► ;I ,I li I I •i I II j I NOTE: *Jack Walker to read Lin's statement II ** to read Toni's statement . I� II I I ' � •, :, IIIhill I Illi I , I I j� II; I ii II ' I •II I � i II, I 'i I I II I I !IIS I i ail �I I i „II II I I II III I �,I I. Ij II I I II I' illi ) i �q I I IICII ► IIII ,I IIbI ,111 I� I �I III I II I �II IIII i � l I Ij iI ,I REQUEST TO SPEAR FORM a- m � I 111111 (THREE (3) MINUTE LIMIT) I r`cj Complete this form and placl it in the box near the speakers rostrum before addressing the Board. AA p � Name: ria or rl son Phone: VVig ��II Address: _ f I WI,r1CQS0)'' r1� ��• City: /gem) h '�D li I am speaking for myself I or organization: ken.sinc 11 1111 l I;II veh.,PtiNNIII o i'n name of organization) I �il CHECK ONE: I wish to speak on Agenda Item # +1 Date: A ' ! l; •COD 8 e isi o My comments will be. general for _ against I wish to speak on the subject of II SII I I.I!'I I do not wish to speak but leave these comments for t-'E I; Board to consider: I 1111111 I1�1►► k ►11111 Il il:�l�► I SPEAKERS I 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. I 3 . Begin by stating your name and address and whether you are speaking for yourself ori as the representative of an organization. I 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) O Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Q01er -V Phone: �JS2,,S S/,Z/ Address: 112 City: I am speaking for myself or- organization: l'.� ,.&A_ V.0,-X �tw V OTit�� (name of organization) CHECKONE: I 4///— I wish to speak on Agenda Item # 3 Date: q/zt,1® S My comments will be: general forC ')D a-ga-ist- __�___ I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . 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Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • (THREE (3) MINUTE LIMIT) 9 cv, o- Complete this form and place it in the box near the speakers' rostrum fore ad essingpthe Board."i� , &- ,�✓ ,t Name: �ZL" C. /C- Phone: �1G /�� 0 U Address: % Q - t/4" 42a:gh? /9 Gd City: 0,4,&RAI�o D 111N 67 IdN N617 pjb6;? I am speaking for myself or organization: G6)op (name of organization) CHEC ONE: 7 /-Q. X) I wish to speak on Agenda Item # Date: My comments will be: general for co D against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on tYweverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . aWytva.oi av orLesA rvitrl • (THREE (3) MINUTE LIMIT) • Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Phone: - r Addre s: ' City: I am speaking for myself or organization: c (nae f orgy ization CHECK ONE: _ I wish to speak on Agenda Item # Date: _ 0 My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . t zwur ow '1V QKQ^A% *(THREE (3) MINUTE LIMIT) • " Complete this form and place it in the box near the speakers rostrum before addressing the Board. Name: JO C, rl G ko-nn rx`1 Phone: .°7 �(✓'� ���� ��� Address: 11 P,tr� ko� City: I am speaking for myself 19-:iC organization: Cny6A, o-'N9vC�MZV)AM8 (name of organization) CHECK ONE: 1 I wish to speak on Agenda Item # �- `3 Date: Jcc enL,1�5,000 II My comments will be: general for CIJED' against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. .Please speak into the microphone at the podium. 3. 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Name: U � �� �.L�C Phone: �1 —Q`� Address: Zj:a 3 City: �W �- I am speaking for myself or organization: ( yor( R4 IU�I G k�or�K�0 (name of organization) 6 aat? CHECK ONE: D G I wish to speak on Agenda Item # Date: My comments will be: general for A against I wish to speak on the subject ofvl - (MwiP .Gl�l� I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) s Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: �Q�Y?Q_ hVV CJ1 Phone Address: In �66&fftln NVT� city: tNsl lGC�6V1 I am speaking for myself -o o Cow Nw kA6�aA CAM (name of organize ion) CHECK ONE: I wish to speak on Agenda Item # -�7 Date: Z ZDU� My comments will be: general for Cpp against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation.' Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) • 7,) 3 id Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name• 4,-,t16NY lc- ✓16w l Phone: (1510) 5o2'5- 63S3 1 Address: �3 uJ��C�1 NEF �UC . city: I am speaking for myself V", or organization: (name of organization) CHECK NE: 3 -� I wish to speak on Agenda Item # Date: / l My comments will be: general for against I wish to speak on the subjectof I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made,by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM 2 (THREE (3) MINUTE LIMIT) �� d Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: ,L� CJ11 Phone:No Address: �Jy�1/� L► �� City I am speaking for myself aorganization: • (name organization) CHECK ONE: 4q- - I wish to speak on Agenda Item # 'I- Q Date: _ My comments will be: general for cD-a against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at- the podium. ,3 3. Begin by stating your name ands rliess and whether you are speaking for yourself or as .the representative of an organization. • 4 . Give the Clerk a copy of your presentation or support documentation- if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM • (THREE (3) MINUTE LIMIT) • �� - o Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: G l/� J�C.��Cr Phone: X013 � . Moir, s-}. Address: City: I2T; yselfr mor organization:(,4 sh �� (name tf organization) CHECK ONE: C I wish to speak on Agenda Item # � Date: o0/.c C My comments will be: general for „ _ against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: • SPEAKERS s 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin 'by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM *(THREE (3) MINUTE LIMIT) �- complete this form and place it in the box near the speakers' rostrum before addressing the Board. p, Name: (�1' f l �/fC/ Phone: ��)" 9d /0 5.8 Address: 0�73'� .�"�1� t�6 city: M)41 J-rAaN V/� I am speaking for myself ✓ or organization: (name of organization) CHECK ONE: V/ I wish to speak on Agenda Item # Date: _q as- My comments will be: general for �gainst I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM • Y (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. c! Name: h'1 I �-�kw) QeK,K0 Phone: SIo / 3 Address: l� 1-Lsi D� CT City: I am speaking for myself V--" or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # 3 Date: _ a-5 o / My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. 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Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 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Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM ,. REQUEST (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: `2)ebb k6q L MS Z Phone: Address: _ � A "b City: / 1 I am speaking for myself V or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # "3 Date: My comments will be: general forT against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: . SPEAKERS • 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. 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Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) / Complete this form and place it in the box near the speakers' rostrum before` AVa'ddressing the Board. Name: A RT vD O VJ d 7Z 7-H Phone: Address: t000 cV r-�T?--Y City: I am speaking for myself X or organization: ArYl> T-A<M ( L (name of organization) CHECK ONE: / I wish to speak on Agenda Item # 5 Date: C, P 9 _ My comments will be: general for YJ�fc4ainst I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS • 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: y F q Phone: Address: City: I am speaking for myself tl� or organization: (name of organization) CHECK ONE: V I wish to speak on Agenda Item # ^ ? Date: My comments will be: general fo against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 40 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. 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Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM • ' (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. /o - Name: .1 �3 �'1 '`7� Phone: 7 7,6 --7--2- yS_ Address: Ny-rv✓®o d / 1Ue, City: kP I am speaking for myself �� or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # �� Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM • �����/// (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Phone: . � Address: ��� City: I am speaking for myself or organization: cid V1 -Pa -P, � (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date. ' My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking.. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . • REQUEST TO SPEAR FORM • (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before ad ressin the Boar/d.. , I Name: `'K"`' Phone: 2,6 Address: l I v City: l I am speaking for myself or organization: ( h�- 'et x. (Warne of organization) CHECK ONE: l I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in ,the box next to the speaker's -microphone before: your agenda item is to be considered: !� 2 . You will 'be called on to make your presentat'i'on. aPlease speak- into the microphone mat the podium. J_ 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. -Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . i RENA RICKLES ATTORNEYAT LAW 1970 BROADWAY,SUITE 1200 OAKLAND,CA 94612 TEL:(510)452-1600 • FAX:(510)451-4115 ele ..11 September 24, 2001 Chairperson Gayle B. Uilkema Members, Contra Costa Board of Supervisors C/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Via hand delivery and facsimile Re: 500 Coventry Road, Kensington; Appeal to the Contra Costa Board of Supervisors to overturn the Community Development Department's determination that Danny Scher's planned May 20, 2001 outdoor concert at his newly constructed amphitheater did not qualify for non-conforming use status. Hearing date: September 25, 2001 Dear Chair Uilkema and Supervisors: As the attorney for the Coventry Neighborhood Group, I urge you to uphold the Community Development Department's determination that appellant's proposed use of his newly constructed 250-seat amphitheater on the property of his single-family home at 500 Coventry Road for outdoor amplified concerts and events does not constitute a legal non-conforming use in an R-6 zoned neighborhood. The issues on appeal are as follows: 1) Whether the appellant has established, through clear and convincing evidence, that his proposed use of the newly constructed flagstone and rock amphitheater with permanent seating for 250 people, amplified sound system, expanded stage and lighting system constitutes a legal non- conforming use? 2) Whether, under the language and intent of the United States and California Constitutions and the cases decided thereunder, the appellant has established that the newly constructed amphitheater's intended use is exempt from the R-6 zoning requirements and protected by First Amendment (free speech) "narrow scrutiny" standards, if the appellant's amphitheater's events include political or charitable fundraising? The answer to both questions must be an emphatic, "NO". ( as- aft Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 1 I. LEGAL NONCONFORMING USE A. The newly constructed amphitheater and its proposed uses do not qualify as a legal non-conforming use. The property in issue, 500 Coventry Road, lies within and is subject to the R-6 single family residential standards which specifies which uses, including uses normally accessory to those uses are allowed. Uses not specifically allowed are disallowed unless appropriate permits are obtained. Or, unless appellant proves that the new construction and proposed uses qualify as a legal non-conforming use ("grandfather status") A legal non-conforming use is one, which was valid when created, but by subsequent zoning, it became invalid. (Hill v. City of Manhattan Beach(1971) 6 Cal.3d 279,285) To continue its legality, the non-conforming use must exist on the date of the new zoning and continue, uninterrupted. (Ibid.) Zoning regulations, while recognizing the right to continue a non-conforming use, prohibit any expansion and contemplate the eventual elimination of such uses. California courts have generally followed a strict policy against the extension or enlargement of non-conforming uses. The purpose of zoning is to reduce and eliminate all non- conforming uses as speedily as possible. Paramount Rock Co. v. County of San Diego (1960) 180 Cal.App.2d 217,228. Changes in use which tend to enlarge or tend to make the non-conforming use more permanent are not protected. (Ibid.) Repairs or alterations which make the non-conforming use more permanent are not allowed. (See Dienelt v. County of Monterey (1952) 113 Cal.App.128) where changing a walled, flagstone patio was replaced by a concrete, flagstone patio was found to be an improper change to a non-conforming use. On the property at issue, before 1988, the facts show that there was no prior non-conforming use. The testimony that you will hear and the letters submitted from neighbors who have intimate, first-hand knowledge of the property well before and since 1947, support the fact that large parties, fundraisers, and events all occurred after Mr. Scher purchased 500 Coventry Road in 1988. ( Cf. Declaration of Louise Hildebrand Klein) Before Mr. Scher purchased 500 Coventry Road, the site of the newly constructed flagstone amphitheater was a natural bowl, without permanent seating, used for small, private family gatherings, a daughter's dance recitals and two family weddings in the 1940's. To the neighbor's knowledge, from that time (the late 1940's) until Mr. Scher purchased the property in 1988, a period of four decades, the site was not used for any events. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 2 B. The amphitheater's new construction and its proposed uses constitute an impermissible expansion and enlargement of the original use. Over the past year, Mr. Scher constructed a 250-seat amphitheater, which includes an amplified sound system and extensive outdoor lighting. Clearly, the proposed May 20, 2001 ticketed fundraising event, which featured Louie Bellson, a world class drummer and the Hayward Swing Band, and included a one-day permit for alcohol sales, cannot be considered a mere continuation of the Hildebrand family dance recitals and weddings. Even if one assumes that the family dance recitals and weddings were not normal accessory uses, appellant has not adequately demonstrated that the property at 500 Coventry Road has been used continuously for activities that are unrelated to the normal uses of a single-family dwelling unit. The appellant's proposed use of the newly constructed stage and amphitheater, therefore, does not constitute a legal non-conforming use, and is not normally accessory or auxiliary to a detached single-family dwelling in the R-6 single family residential district. Thus, even if one were to accept the three notarized declarations by appellants witnesses as valid, the amphitheater as now constructed and proposed for use fails to meet this County's criteria for a legal non-conforming use. The 250-permanent seating, sound and light system cannot reasonably be considered a mere continuation of the Hildebrand family amphitheater. Nor could the proposed May 20, 2001 event , featuring Louie Bellson, a world-class percussionist and the Hayward Swing Band, and similar events, for whatever purpose, be considered a mere continuation of the Hildebrand family dance recitals or two family weddings. II. APPELLANT'S FREE SPEECH RIGHTS HAVE NOT BEEN VIOLATED Appellant's proposed use of the newly constructed stage and amphitheater, which includes outdoor events including a swing band, musical concerts, with amplified sound, even if for charitable or political fundraising purposes, are NOT normally accessory or auxiliary to a detached single-family dwelling in an R-6 single family residential district. Prohibiting these uses as appellant proposes to conduct them, constitutes a proper exercise of zoning and police power. Appellant's proposed use of the stage and amphitheater is not a free speech issue but rather a question of whether the proposed use of outdoor, amplified amphitheater for 250 guests, is a use normally accessory, or auxiliary to a detached single-family dwelling in an R-6 single family residential district. The determination by the Community Development Department that appellant Scher's proposed May 20, 2001 concert violated the County Code and was not allowed on that R-6 site represents permissible "content neutral" application of the County's zoning laws. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 3 Since the R-6 district does not specifically allow an outdoor 250-seat amphitheater, used as proposed by appellant, Scher, it is a proper exercise of the County's police power to maintain the single-family residential character of the neighborhood by holding that such a use is not permitted. A. Notwithstanding appellant's attorney's arguments, where, as here, the zoning ordinances at issue are content neutral, there is no question of whether Mr. Scher's free speech rights have been violated. The beneficiary or purpose of Mr. Scher's proposed event was not in issue. It was not the message, verbal or musical, that was to be delivered over the amplified sound stage that was not permitted. Nor did it matter who the recipient of any funds collected may be. It was the fact of the outdoor event itself, its impact on the quiet comfort of the residential neighborhood, and the language of the County's Zoning Ordinances that was in issue. Such general regulations that control "time, place and manner" and are written and imposed without reference to a specific conduct or speech and viewpoint neutral are defined as "content neutral" and do not violate free speech. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4t" 352,367,373; E.W.A.P. Inc. v. City of Los Angeles (1997)56 Cal.App.4t" 325). Moreover, the Community Development Department's decision at issue did not bar political or charitable fundraising inside appellant Sher's home (or any other home for that matter). A political, charitable or social event which would not infringe upon the quiet enjoyment of the neighborhood would be permitted.' Even if the events planned in his amplified, sound stage, outdoor amphitheater fall into the category of"protected" free speech conduct--political or charitable fundraising--the enforcement of the zoning ordinance that does not permit that conduct in an R-6 zone, does not in itself violate the free speech clause under either the California or United States Constitutions. (supra at p.364) California cases recognize that a regulation, even one affecting protected (free speech) conduct , is enforceable if it survives the "intermediate scrutiny" of time, place and manner analysis. (Ibid.) Legislation may be upheld as reasonable, time, place and manner so long as it is (1) narrowly tailored; (2)serves a significant government interest, and (iii) leaves open ample avenues of communication . None of the cases cited by appellant support their argument that Staffs decision should be overturned as having a"chilling effect on Mr. Sher's use of his own home". In the cases where the city's ordinances where overturned the facts were not on point--certain vague classes of charities throughout an entire city were subject a single set of regulations(Hillman v. Britten (1980) 111 Cal.3d 810), certain classes of signs were proscribed while others were allowed (Gonzales v. Superior Court (1986) 180 Cal.App.1116), the zoning regulations applied to satellite antennas, barred by the FCC (Hunter v. Whittier) or the regulation was not"content neutral" City of Imperial Beach v. Escott (1981)115 Ca.App.3d 134). Moreover, in Rodriguez v. Solis (1991) 1 Cal.App.4fn 495)a zoning ordinance barring all signs from certain locations was upheld as a valid time, place and manner ordinance. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25, 2001 hearing . 4 (Supra at p. 365) Examples of legislation deemed by the California Supreme Court as "content neutral" and thus subject only to the "intermediate scrutiny" time, place and manner test are new York City's Central Part sound amplification restrictions. (Supra at p. 367) Thus, the R-6 zoning now at issue, which determines without reference to viewpoint or content which activities are permitted, qualifies for the intermediate scrutiny test. B. Both the California and United States Supreme Courts apply "appropriate balancing" of free speech interests against individual and property rights. Following the lead of Supreme Court Judge Oliver Wendell Holmes famous limitation of free speech rights when balanced against public safety, "[t]he most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic," (Schenck v. United States (1919) 249 U.S. 47,52), both California and the United States Supreme Courts have felt it appropriate to balance the free speech interests against the "the property and privacy rights" of individuals. Robins v. Pruneyard Shopping Center(1979)23 Cal.3d 899,910) Free speech expression cannot be barred in a shopping center open to the public, but it can be barred when the rights of an individual homeowner are at issue. (Ibid.) While appellant has the right within his own home to conduct political or charitable activities, when those activities invade the privacy, property and safety of his neighbors, then those activities are properly the subject of time, place and manner regulations. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (CDOS 7627, August 30, 2001)2. CONCLUSION The Coventry Neighborhood Group respectfully requests that the Board of Supervisors UPHOLD the decision of the Community Development Department that Mr. Scher's proposed use of the newly constructed stage and amphitheater at 500 Coventry Road does not constitute a legal non-conforming use and deny Mr. Scher's appeal. We also concur with the Community Development Department's analysis that what is at issue is a content neutral zoning decision and a First Amendment issue. 2 In an August 31, 2001 letter to this Board, the American Civil Liberties Union (ACLU), BARK Chapter urged the rejection of"any ruling on this matter that would effectively prohibit al citizens from gathering in the privacy of their own home for personal, political or charitable purposes that include fundraising." Upholding Community Development Staffs decision in this case would not curtail those activities so long as they are within a private home, not imposed, though loudspeakers in an outdoor amphitheater, upon an entire residential neighborhood. The limitations at issue regulate only the time, place, and manner of all such proscribed conduct, not just"protected"speech. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing . 5 On behalf of the Coventry Neighborhood Group, I wish to thank the Board of Supervisors and the Community Development Department for their time and attention to this extremely important matter. Very truly yours, Rena Rickles Cc: Coventry Neighbors Group Diana Silver, Deputy County Counsel Catherine Kutsuris, Deputy Director Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing . 6 • Connie Martinez 420 Alberto Way #42 Los Gatos, CA 95032 September 24;;:200:1 Dear Board of Supervisors: My name is Connie Martinez and I live in Los Gatos, California. 1 am the Director of Strategic Initiatives for the University of California, Santa Cruz and the former Planning Director and Deputy City Manager for the City of Mountain View. I had planned to attend your previously scheduled hearing to share my personal and professional point of-iew and would have been at the hearing today but for a scheduling conflict. I am puzzled and perplexed by the County's assertion that the hosting of charitable events at Danny Scher's home is considered a commercial venture requiring a land use permit. In my 20 years of experience ill both the private and public sectors I have been involved in literally hundreds of land use policy discussions and have also attended numerous fund raising events in people's homes and I have never encountered such a position. Nor do I believe it to be good public policy. On a personal note, I am a breast cancer survivor and have a recent. experience that highlights my concern. On AuI*ust 18'x', 2001 Danny helped me to celebrate life and raise $16,411 for breast cancer research. It was a 'boautifirl:suinmer afternoon and about 50 people gathered at Danny's home to enjoy food, a jazz du_.t :nd each other... And while we were all enjoyinv this lovely day, somebody was taking pictures fi-om h,ehicd the bushes:and somebody called the police., presumably empowered by the County's position that would demi this event an "illegal activity." Was this your intent? On a professional note, 1. met Danny Scher while managing the Shoreline Amphitheatre lease for the City of Mountain View. The Shoreline Amphitheatre is considered an important cultural asset in the Silicon Valley region and each year hundreds of thousands of people.enjoy its diverse set of artists and festivals. In the 6 years that I worked with BGP, Danny proved to be a responsive problem solver and a generous Community participant. i say this in light of the many disparaging and unfair remarks that 1 have seen associated witli Danny's name as he simply works to use his]ionic to help charitable causes. I regret not being able to hear your case today. On the surface it appears that you are punishing Danny for a disturbance he might cause in the future and holding him to a higher standard than anyone else. Not only is this unfair, it does not stem to be within the spirit of our constitution. We arc all fortunate to live in the United States of America and today; more than ever, Nae should be grateful for people like Danny who have the ability and hopefully the freedom to help others. i ur, you to reconsider your position. Sincercly. Connie Martinez / UV May 23, 2001 Dear Mr. Scher I am sorry that I was unable to.attend your open house last Sunday. I am even:sorrier that I did clot write a letter fol- the Contra Costa County Board that heard your permit request. I so admire your desire to actually do somethin- in the world, and being a neighbor, think that any tiny inconvenience to me a few times a year is a small price to pay for the great good that it supports. Truth is, I did not think there would be any opposition, so I did not pay ally attention. I do apologize. Please feel free to use this letter and any further support I can give you ill your future act1011s. Thankyou for trying to make a difference il? the world Yours truly, t ��— Jerry Bratc:her 11 Avon Pd Kensington, Cid 91707 525-54SI as cZUD Patricia Quick 527 Coventry Road Kensington, CA 94707 O oL September 9, 2001 Supervisor John Gioia Contra Costa County 11780 San Pablo Avenue, Suite D EI Cerrito, CA 94530 Dear Supervisor Gioia: As I am unable to attend the County Board of Supervisor's meeting on Tuesday, September 11 th, I am writing to express my support for Danny Scher's request to hold five benefit concerts a year on his property at 500 Coventry Road. I have been a homeowner and resident at 527 Coventry for over 20 years, and my front door is approximately 300 feet from Mr. Scher's amphitheater entrance. In toe past 13 years that Mr. Scher has lived in his home, I have never been bothered by any event that has been held on his property. The property is zoned in such a way that would allow three additional houses to be built on the same location as the amphitheater. If Mr. Scher chose to do that, I believe the impact on the neighborhood, and the entire community, would be far greater. A single family home generates approximately 10 vehicle trips a day. Three new homes on the property would therefore generate an additional 30 vehicle trips a day, 210 trips a week, 900 trips a month, for a total of 10,800 trips a year. This potential traffic impact, in addition to other year-round impacts on the community, would be far greater than five Sunday afternoon concerts a year. In choosing to keep the property as open space, and in a park-like, wooded setting, there is reason to believe that Mr. Scher's preferred use of the property will actually increase property values to the surrounding property, and the neighborhood. Please feel free to contact me if you have any questions. Sincerely, Patricia Quick (510) 524-1851 �. LC aD9 . .: \ . 1' r .. �\ \\ _ Y t , ,` 09/18/2001 16:02 510524439 JEFFREY S PRICE PAGE 02 JEFFREY PRICE CR. 859 DAIRA DRIVE El. CERRITO, CA 94530 September 18,2001 Contra Costa County Board of Supervisors c/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 To The Supervisors of Contra Costa County: It has come to my attention that the County may have made a decision to deny a resident in the County ( Danny Scher, at 500 Coventry Road, Kensington, CA 94707) the right to hold non-profit, charitable events at his home. This appears, at least as far as 1 can tell, to be new with regard to current practices in the County. I myself, a resident of the County since 1983, have held-such events, a number of which have included fund raising, with up to 50 people at my home. I was not aware that such practices were considered to be "commercial". It seems to me that if the County does intend to and eventually does deny such activity, it will have stepped clearly into the zone of restricting the free speech of its citizens. hope to find that 1 am mistaken about this matter. a l Jeffrey S. Price, Ph,D. • 1 �, '` �� Jill,/ 24, 2001 Supervisor John Gioia Contra Costa County I3oard of Supervisors 11780 San Pablo Avenue, Suite D E1 Cerrito, CA 94530 Dear Supervisor Gioia: I ani writing about two things: the amphitheatre at Danny Scher's house and the deer. First, I am totally III support of the amphitheat-re and how Danny wants to use. it. I have lived virtually across the street from his backyard for 43 years and have watched )low Danny has,. cared for the property, upgraded it, maintained it and uses it to raise money .or nlr{nti good causes, political, non-political and C011111111111,11 events. Despite what you Stay have heard otherwise, there has never been a problem with either parking or the sound; in fact, 1 have never even heard his amplified music. ]'lease do whatever you can so he can contiiltie to use his house for charitable events. Secorlc;, the deer population is out O1 COntl'OI. l_..uil SOrllething be done to stop their rate of II1L'.li'.plie;iit{011? Tills is a pl-oblem Irl the entlFe COIllIllLllllty. Thank you for your attention 10 these matters. [",�.a:;e feel ;::ee to call nie at (5 10) 526-1795 with any questi.<;ils. Sincerely, Giscla Larkins 537 Coventry_ Road Kensington, CA 94707-1328 s To the Contra Costa County Board of Supervisors: I apologize that I cannot be with you today. I departed for a short sabbatical several days after the sad events of September 11 that postponed Danny Scher's review by your office. I have asked Elizabeth Greene, the Administrative Director of the San Francisco Jewish Film Festival to represent us today. I want to speak on behalf of Danny Scher in defense of his desire to host private fundraising events at his home in Kensington. As a director of a non-profit organization I know too well of our reliance upon the generousity of individual donors to help us meet our budgets. The world of non-profit organizations supports our society with the social services, health care support, education, research and cultural life that limited government funds cannot provide. Non-profit organizations are the backbone of our free and democratic society. A healthy non-profit's organizational budget is usually made up of an equal mix of government funds, private foundation support and individual donors. For us, individual donors usually are the safety net when government support wanes due to politics or when foundations withdraw their support due to ever changing priorities. Simply put, we cannot survive without individual donors. Danny Scher is one of those donors. Danny was a member of our Board of Directors in the late 1980's and has remained a trusted and accessible friend of the Festival since then. I was always amazed that whenever I called his office at Bill Graham Presents he took my call. Not all donors do this because they know, invariably that my call is to ask them for either their time or their money. In 1999, when I learned that Danny had "retired" after 27 years of service, I made the bold move of asking him to produce an ambitious program of 7 film/music events to celebrate our 20th Anniversary in July of 2000. He did this with great skill and raised our overall presentation to a new level of professionalism. His enthusiasm to improve our presentation was boundless. He donated his time and provided us with a blueprint for future Festivals. In addition to this pro bono consultation, he hosted in his home at his own expense a thank-you jazz brunch for our donors, staff and 27 international filmmakers from the US, France, Hungary, Mali and Israel including Palestinians. It was a remarkable exchange of cultures. For the 150 who attended, it was one of the highlights of the Festival - a relaxing afternoon of food, conversation and the musical talents of the Joshua Elizah Aginsky Trio. a5, o),Dv� Charitable events like this are private, invitation only and not "commercial." I regret that since the refurbishing of his garden amphitheatre, a few of his neighbors have made it impossible for Danny to continue this good work. These are not rock and roll concert events and the comparison of Danny's philanthropic work with his former professional life with the late Bill Graham at Bill Graham Presents is at best disinformation and at worst outright slander. For the sake of the citizens of Contra Costa County whose vision of community includes helping our American way of life with private fundraisers in their homes, we hope the Board of Supervisors will reverse this decision Thank you. Janis Plotkin Director, San Francisco Jewish Film Festival ,Y To: Contra Costa County Board of Supervisors Re: Danny Scher Date: September 25, 2001 My name is Miriam Perkoff and I am a professional cellist. I perform with the San Francisco Symphony, Opera and Ballet orchestras. I am also the founder of two Bay Area nonprofit arts organizations, the New Century Chamber Orchestra and Stratos, where I am currently Executive Director. I have been associated with many other nonprofits all over the United States for the past 20 years. Fundraising events are a major source of philanthropic support and income for nonprofit organizations. Without them, most nonprofits would cease to exist. I have put on or attended over 100 fundraising events across the country held inside and outside the homes of individuals who host them. This is perfectly legal and has been going on for hundreds of years. All contributed money goes entirely toward the nonprofit. There is nothing "commercial" about these events — money contributed is through donations, which those who give can deem as a tax write-off when contributed to a nonprofit. I have never ever seen or heard of the hosts of these events pocketing any money whatsoever from donations received or merchandise sold. In fact, in all cases, these hosts not only have opened up their homes to the general public, but they have generously contributed a good portion of their own money to make the event a success. ate-, aL7V j r • • I am outraged to learn that Contra Costa County has deemed nonprofit, charitable events in private homes as a commercial activity. If that is the case, you are setting a terrible precedent and seriously deterring the generosity of people like Mr. Scher who offer their homes as places to raise a great deal of money for many wonderful causes. Contra Costa County seems to be making up its own rules, fueled by vicious attacks by Mr. Scher's neighbors, who have been spewing serious and outrageous exaggerations and appear to be on personal crusades. What about Ann and Gordon Getty, Jeffrey Shattuck Leiter, and Contra Costa County's own Dean and Margaret Lesher, major philanthropists in the Bay Area, who have opened their entire homes to nonprofit organizations for many, many years? When they hold events and performances at their homes (and, to this date they have raised millions of dollars for nonprofits), are they subject to your definition of "commercial activity"? Danny Scher is participating in the exact same process. Whatever standards you impose upon Mr. Scher would now have to apply to all private nonprofit fundraising events in people's homes and gardens in Contra Costa County. Raising money for nonprofits is just that — .money raised at fundraising events go to organizations that DO NOT PROFIT. By the Internal Revenue Service's definition for nonprofits, donations are only allowed to be used for specific operating and program expenses outlined by that organization and approved by their boards. I urge the Contra Costa County Board of Supervisors to reconsider your position on this issue and to understand the great im act of your decision on nonprofit causes. Already, the organization "A Cure for Parkinson's Disease" has been a victim of this ugly attempt at preventing Mr. Scher from doing so much good for the community. This is shameful. Do you want to have the reputation as the only county in the Bay Area preventing these fundraisers? Do you want worthy organizations, from which you, and the citizens of Contra Costa County may benefit, to be snuffed out of the county? I would think not. No one should ever be constrained from helping others. You are lucky to have someone like Danny Scher in your community. Miriam Perkoff Executive Director Stratos P.O. Box 13824 Berkeley, CA 94712-4824 Phone: 510-843-4474 Fax: 510-843-4473 e-mail: MiriamPerkoff@aol.com Connie Martinez 420 Alberto Way #42 Los Gatos, CA 95032 Septemb.er.'24;200l Dear Board of Supervisors: My name is Connie Martinez and I live in Los Gatos, California. I am the Director of Strategic Initiatives for the University of California, Santa Cruz and the former Planning Director and Deputy City Manager for the City of Mountain View. I had planned to attend your previously scheduled hearing to share my personal and professional point of view and would have been at the hearing today but for a scheduling conflict. I am puzzled and perplexed by the County's assertion that the hosting of charitable events at Danny Seller's home is considered a commercial venture requiring a land use permit. In my 20 years of experience in both the private and public sectors I have been involved in literally hundreds of land use policy discussions and have also attended numerous fund raising events in people's homes and I have never encountered such a position. Nor do I believe it to be good public policy. On a personal note, I am a breast cancer survivor and have a recent experience that highlights my concern. Oil August 18"', 2001 Danny helped me to celebrate life and raise 516,411 for breast cancer research. it was a beautiful suiiuner afternoon and about 50 people gathered at Danny's ]ionic to enjoy food, a jazz duet and each other. And while we were all enjoying this lovely day, somebody was taking pictures from behind the blisiies and somebody called the police, presumably empowered by the County's position that would deem this event an "illegal activity." Was this yoiii= intent? On a professional note; i met Danny Scher while managing the Shoreline Amphitheatre lease for the City Of ti!Offluain View. The Shoreline Amphitheatre is considered an important cultural asset in the Silicon Valley repion and each year hundreds of thousands of people enjoy its diverse-set of artists and festivals. In the 6 years that I worked with BGP, Danny proved to be a responsive problem solver and a generous c011111i111iity participant. I say this in light of the many disparaging and unfair remarks that 1 have seen associated with Danny's name as lie simply works to use his home to help charitable causes. I regret not being able to hear your case today. On the surface it appears that you are punishing Danny for a disturbance he might cause in the future and holding him to a higher standard than anyone else. Not only IS this uni'air, it does not seem to be within the spirit of our constitution. We are all fortunate to live in the United States of America and today, more than ever, \ve should be grateful for people like Danny who have the ability and hopefully the freedom to help others. 1 urge you to reconsider your position. Sincerely, Connie Martinez . l�C� C,2 September 11, 2001 In Re: Appeal of Danny Scher, 500 Coventry Road, Kensington To: Members of the Board of Supervisors, Contra Costa County: Good Afternoon. My name is Jean Kukulan Reilly and I have lived at 554 Coventry Road in Kensington Since March of 1957,almost 45 years. The West rear of my lots abut Mr. Scher's property directly above his newly built amphitheater 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 members 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 with the 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 was married back in the late 20's or 30's. There were no seats. Let me repeat. . There were no seats. I knew Joel Hildebrand and I know of his family events. Danny Scher's proposed events are in no ww similar to Joel Hildebrand's. I cannot understand how Danny Scher could move into our quiekresidential neighborhood and inflict his extravagant shows on us. contravening all normal zoning laws with all its accompanying negative aspects—amplification of sound, lighting, parking congestion on our narrow winding streets, commercialism and depreciation of our property values. At a gathering Mr. Scher had on May 201h at which there was amplified music, my husband and I were unable to sit on our deck where we had been enjoying lunch. Afterwards, my husband, who had been very ill, could not nap or rest because of the sounds of loud music which pierced our bedroom as well as our entire home. We are depending on you, our County Authorities, to prevent this encroachment and appreciate your help in upholding the County Code in this upsetting and painful matter. e n Kukulan Reilly (Mrs. Leonard Reilly) i Good Afternoon! My name is George Kwei. My wife Gloria and I live at 10 Kenilworth Court in Kensington. I am here because I support the County Community Development Department's recommendation against Mr. Scher's request for legal nonconforming use of the amphitheater. We are an immediate neighbor of Mr. Scher's and we live at the end of a 200 ft. long narrow driveway bordering the amphitheater. I would like to address three issues: (1) Protection provided Kensington residents by the R-6 residential zoning, (2) the detrimental effect the scale and public use of the amphitheater has on property values and our right to the quiet enjoyment of our homes, and(3)the possible effect that a large public event may have on traffic congestion and safety, and the loss of our ability to escape if there were an emergency. When we purchased our house, we did so because of the beauty and serenity of the property and its neighborhood, and because we thought that the zoning regulations would protect our right to its quiet enjoyment. We had no idea that the trees, shrubs and grassy meadows adjacent to our property would soon be leveled and replaced with a stone sound- reflective amphitheater, all without permit or request for approval. We think that granting of the right to use this land publicly would irreparably and seriously destroy the protection provided by the zoning, and set a dangerous precedent for the entire County. We believe that the use of this amphitheater for public events would have a serious effect in lowering property values in the area. It may set further precedent in weakening the meaning of residential zoning. Although property values have increased since we purchased our house, the realtor who sold us the house has told us that the existence of the amphitheater and its public use would have to be disclosed and would result in a lowering of the property value by at least$100,000. An independent real estate broker confirmed this. Finally, we are extremely concerned with the traffic problems, safety, and public nuisance associated with holding large events in the amphitheater. Parking and accessibility on Coventry Road is already a serious problem that is recognized by everyone. I agree with the remarks made by Ted Grooms and Bob Giusti. However, I wish to specifically address our special concern with escape routes in the event of an emergency. With larger events, parking will become an even larger problem and may extend into the entrance to Kenilworth Court and into our long driveway. This driveway was blocked several times by trucks parked in it during the construction and the preparation for use of the amphitheater. We were imprisoned in our house. Even worse, the major pedestrian exit from the amphitheater empties onto our driveway, prompting extreme concern that our escape routes would be blocked if 250 people all at once came into our driveway. In an emergency, we would again be imprisoned in our house. For those of us living there, it is a frightening thought. It is for these reasons, and others addressed by other members of our community, that I hope the Board will uphold the recommendations of its Community Development Department in denying Mr. Scher's appeal. Thank you! 1 I"' September 2001 $To Kwei 10 Kenilworth Court Kensington, CA 94707 Awwzdlor t &-�vf .25 .2p,/ W wi) WaxW01 W w at! I Ow Kink) ylynyiv: NMA a,W P: Law, VJ Vown1ru"100 in5"MuNt"J 110'1'!18 qM016 n 1, rrs I -Allph"W; At"i" ulo Lus ot�c non! wr Wi �50? 06 1c Wfo,,Q tOWSzol no un :?so X04 tin rVau A Mul UP 4 a 10 Kin 000 ski 1.Ell Wn ma! 001 —%Mywy 1 :q; ..'4 wl 1.1c milt, ws Wis"gn"I w DOI h yovivP WR QwNp At V jYhood (Jr bib wj: nvud wo 0WOKy wl ('r,1 W 7 imp 00; .r..:10; sdi 00 Zoo 41 W OV A0 gy0on top, 2, 2: hoo wy lynov, ars '"Ory "; 1 , . Tvoww: P1 gni' l fuoi Milt at, honaTi W 141w in At= W.;71161 Q o 4j.0 NVAY1 r., _3.1 •VTO Rmavy nr ,�J! C1.VrJ.:j. f.j .,ij VaCyl; 100p vgr r il 7 ;iqo,i, c in 10150 ((l t,-w No; 141 wrms no yu Uct W; 1011 50 nku(d W., L .;Won n jfii, , :-,Ji i;; iv et(-i iwi, &.1i 011 I:= 1:';i Y;'J� w 1!�'; 1 bw' 0- , t:;"::;1,i!7 j>t f3i 1FIZI r" Uit .ISIV! • (.', + ..J,.l 1' ai .w1(2 e fcj%id id wom"! now 071 RIWAdan, W 0) 1-i N� 1 1 v so 2 n M q 1 on V on C� '.t� � e!%',i!oar)."), i 111 riq�-1 :, 1,j n, iz�D U! qLVfY-V 111) ITY SPIN It 19DO 0 it WOO WY 14- Wid W! 011:o:., ;i a. A slur! sund 0, en W spoon "A n "'; "'!( .1 wo. Ar 41, w1ir September 25, 2001 In Re: 500 Coventry Road Appeal of Danny Scher Board of Supervisors, Contra Costa County: My name is Jack Walker and I live at 560 Coventry Road, in Kensington. This has been my home since 1971, a period of 30 years. My remarks will address the potential noise factor that would be inherent to the proposed benefit concerts contemplated by Scher in the newly constructed amphitheater on his property at 500 Coventry Road. My property is directly above Mr. Scher's and our property lines abut. The amphitheater sits at a slight right angle to my property and portions of the top rows of seating are approximately 100 feet from my property line. My house is a split level structure and approximately 75%of the upper level that faces Mr. Scher's property is glass. My upper deck could serve as a mezzanine to seating structure. On May 20"of this year, in lieu of the benefit concert originally scheduled, Mr. Scher held an "open house" for his neighbors and friends. I did not attend, however, the live amplified music of a musical combo engaged for the occasion resonated throughout my home and was loud enough to interfere with my listening enjoyment, at a normal audio level, of a televised broadcast of an Oakland A's game. I closed all open windows,the sliding glass door to the deck, as well as the drapes. I then increased the volume on the television set. The music was still too annoying to allow for my listening enjoyment of this game. The benefit concert Mr. Scher planned for May 20'was to feature Louie Bellson, a world class drummer, and the Cal State Hayward Swing Band. The noise impact of this type of concert with all its accompanying negative aspects, would negate my right, as well as the rights of my neighbors, to the quiet enjoyment of our homes. Very truly yours, Jack L. Walker L -f- a.s- acral Juno e-mail for randbgiustiajuno.com printed on Tuesday, September 25, 2001, 9:05 AM • From: Linnea Due <lindue earthlink.net>(by way of Gina Covina) To: randbgiusti@juno.com Cc:jwalke560@aol.com Date: Mon, 24 Sep 200120:59:32-0800 Subject: Danny letter LETTER TO BE READ AT HEARING: My name is Linnea Due. I want to respond to Danny Sher's statement in a letter sent out to neighbors that he is appealing the county's decision "on the grounds that the amphitheater has been used for similar nonprofit fundraisers over the years." I grew up across the court from 500 Coventry Road at 2 Kenilworth Court from 1951 to 1970, lived next door to my childhood home from 1989 to 1997, and moved back in '97, after my mother had a stroke. During the years from 1970-89, I lived in North Oakland but visited my mother frequently, so I am very aware of what went on at 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 many times. Not once did I ever see a concert, nonprofit or otherwise, held in the "amphitheater." In fact, during a recent conversation I had with Louise Hildebrand Klein, the Hildebrand's daughter, she told me that she thought of the area as an amphitheater only because of its shape and not its use, and that it had never been used in the way that Danny intended. There were never seats or benches until Danny purchased the property in 1988; the site was a lovely natural bowl of ivy and grass and redwood trees. The Hildebrands used their large yard, including the stage, for infrequent family events. Louise's few dance recitals for friends in the '20s or two family weddings in the '40s does not constitute a history of non-conforming prior use. I might add that after the '40s, to my knowledge the site was not used at all, and by the early '70s the stage had all but collapsed until Danny rebuilt it after he purchased the property in 1988. Any fundraisers at 500 Coventry Road were held after Danny's purchase. It truly upsets me to see history "stretched" in this way. Joel and Emily Hildebrand were very particular about respecting the truth--and that is a "prior use" we should all follow. Sincerely, Linnea Due 2 Kenilworth Court Kensington, CA 94707 (510) 525-8981 1 1 of 1� i �i • � i i i i � , Mr. Scher proposes to shuttle patrons to these events:Even before these patrons vehicles arrive, all of the very limited parking, legal and otherwise, will be taken up by vehicles driven by people employed to set-up and manage the event. This includes the sound equipment truck that supplies the microphones,amplifiers and large speakers; the caterers and the band or orchestra and those who choose not to take the shuttle. When the shuttles arrive, there will be no safe place left to park and off load passengers. The shuttle operators will need a level place, out of the flow of traffic, to off load passengers and to re-board passengers at the end of the concert. The only level spot is on Kenilworth Ct. as it meets Coventry Rd. If these vehicles park there, they will block access to 10 Kenilworth Ct. by the residents or Emergency Response vehicles. The whole issue of transporting 250 or more people to attend a commercial event in our otherwise quiet, peaseful, residential neighborhood serves to point out how radically different Mr. Scher's planned use of his new amphitheater is from any prior use or any use allowed by R-6 zoning. Our streets can not accommodate the vehicles necessary to transport 250 or more to Mr.. Scher's planned events. No traffic engineer would say otherwise If Mr. Scher is sincere in his desire to hold concerts to benefit charities, he should use those locations appropriate for that purpose and not invade a zoned and used residential neighborhood's quiet enjoyment or threaten our safety. You do have the right, duty and power to uphold your staff and I urge you to do so. Even the East Bay Regional parks bars events in residential areas as proposed by Mr. Scher. Attendance is limited, for all events,political,social and charitable to what can be accommodated by on- site parking and outdoor amplified sound is barred. den i BRAZILROOMRULES & USE AGR HENT JCS �c;•���� tj T BAY REGIONAL PARK DISTRIC E r6� -� �resv s RULES ALCOHOLIC BEVERAGES Beer,wine,and champagne are permitted. No other alcoholic beverages may be served or allowed on the premises. The bar may be placed in either of two places,on.the patio or next to the kitchen door in the main hall. Placement of beer kegs is restricted to patio and kitchen only. There is an alcohol prohibition for all sorority and fraternity groups. MINOR GROUPS Groups .with a majority of guests from 16 to 21 years of age must have an approve se urity officer esent at each event. There will be an additional security officer present for each 50 guests thereafter. Manager will verify the c s n securi 0mpany. Certification Cth6:ffiibfMu—st e on file with the Manager at least two weeks prior to reservation date. All sorority and fraternity gro a considered minor groups. OR SOUND AMPLIFYING EQUIPMENT Because the Brazilian Room is located in u is park sed by others, the volume of sound outside the building will not interfere with the public's right to quiet enjoyment of the pa is i not only a matter of consideration for ` s the law.No music is allowed outside the building.,with t e exception of unam lip fled, uiet during the actual ceremonyonl . Music be seTUp=rrrthe requlled s f es pplZa res'due two)edpproval prior to the event. ETTI AND RICE No confetti, rice,flower petals, birdseed, streamers, glitter, poppers, etca used in or around the Brazilian Room or park. Although balloons are allowed in the building, they are not permitted to be released owithin the Tilden Park environment. CANDLES No candles will be allowed to be used at the Brazilian Room unless you hay of the Manager prior to the event. Candles are not allowed to be used outside on the patio, walkway, lawn, etc. PATIO AND LAWN No one may drive any motorized vehicle onto the patio or lawn. All s must be limited to patio. No furniture is allowed on the lawn,and no stakes or anything similar can be driven into the lawn. No food may be pro - d, cooked,or served on patio or walkway. Bar must be placed in approved space. Ordinance 38, Section 409.2 states that no one may hit golf bal s the fawn. No tarps, tents, or coverings of any type are allowed, DECORATIONS AND SIGNS Nothing may be nailed,tacked,taped, hung,ortaan,� way to the faculty, inside or outside. All decorations other than free-standing must be approved by the Manager. There are sev pots for attaching items to thewalls. No runners may be taped to any surface. Disposable runners are not allowed.. Be sure mu cic. understand this policy. Directional or informational signs within Tilden Regional Park are not allowed SMOKING There is no smoking allowed inside the Brazilian Room facilitycotta ashtrays outside for cigarette butts and cigars. DISPOSABLE PRODUCTS No Styrofoamor an foam roducts are allow dn conjunction with your reservation. Plastic products that are not recyclable, or not washed and reused, are strongly discourage . BARBECUE There is no barbecuing allowed on the patio, lawQhe , y. Barbecuing is allowed only out back behind the kitchen. No barbecuing will be allowed during a red flag fire alert as posted ct. 1. PARKING The parking lot is a public lot f approximately 28There is additional marked parking on Wildcat Canyon Road. Illegal parking is subject to citation. CATERER You may do a potluck having hired staff or hire a om our approved list. No other caterers or hired staff may work within thefacility. Return the catering form with t e name r ur ch r to the Brazilian Room at least two months prior to your reservation date. If you choose the potluck option, your crew will be r quired to attend a mandatory orientation. The size of this crew will depend on the number of guests attending your event. There will be a potluc fee. The cost for this varies depending on the event type and number of guests. VENDORS Make sure your various vendors understand the azilian Room rules that are pertinent to your event. The vendor form must be completed and returned to the Brazilian Room office two week prior to your event. SOLICITATION AND SALES You are not permitted to sell, s licit, peddle, rent any goods, wares, merchandise, adibles, or collect any money in the Brazilian Room unless you obtain prior written permiss; n from the Brazilian Room Manager. SETUP/TAKEDOWN AND DELIVERIES The facility staff is of responsible for setting up and/or taking down the tables and chairs. This is the . responsibility of the User and must be completed within the ontracted time period. All deliveries must be scheduled to be delivered and picked up within the contracted time period. PAYMENTS Reservations are made in person at the Brazilian Room office and require a downpayment, with the balance due 120 days prior to your reservation date, All arrangements for services must be finalized at least two weeks prior to reservation date. We no longer accept cash. CANCELLATIONS Cancellation requests must be made in writing. Refunds will be made as follows: over one year's notice, 100%of the deposit will be returned less a $50 bookkeeping fee; 120 - 364 days' notice, 50%of the deposit will be returned; under 120 days' notice, 100%of the cleaning and damage deposit will be refunded, and 50%of the remainder of the rental fee will be refunded if the date can be rebooked. TRANSFERS One date transfer is allowed any time up to 120 days before original date at no cost. A hold of one week will be made for requested new date and will not be extended. A written request for this transfer must be received by the Brazilian Room Manager within this one-week period. If reservation date must be changed more than once, a cancellation must be made. CHILDREN All children 15 years and younger must be supervised by an adult at all times. They have tremendous energy and must not be allowed to play in the flower beds, climb the building, swing from the flagpole, litter, or throw rocks, loquats, gravel, etc. Return signed form two weeks prior to event. My name is Ted Groom and I live at 464 Coventry Road where my wife Joan and I have lived since August, 1985 and where Joan lived with her parents from 1945 to 1965. 1 am here to support the Contra Costa County Community Development Department's determination that Mr. Scher's planned use of his new amphitheater is not a "legal non-conforming use" and to ask you to deny Mr.Scher's appeal. I would like to speak to the issue of traffic congestion that would result if concerts were to happen. In particular, I would like to focus your attention to the matter of bussing patrons to 500 Coventry Road. I have some pictures that show the "lay of the land" which will help you appreciate the point I want to make. And the point is that bussing 250 people to 500 Coventry Road is impractical and dangerous. Notice the lack of a sidewalk and the deep culvert in front of Mr. Scher's property, the "no parking any time" signs and the steep up-slope of the street. Notice that Kenilworth Ct. is a very narrow one lane "driveway" leading to 10 Kenilworth Ct. which is adjacent to Mr.:Scher's new amphitheater. 4 01 gy?+ ass 0219.0� it Y c I Lk�4_ __s( �j�, �r-P s, �-L" Irl- �/h —— -S — �-=s�� - -1•--- — I +/ y I '� ' � �V�"o4sf yY�V Sir rs c� —o►V. 12 a� Q— ��rKar, ✓� it n ti crne VIII I-�v' �— -- — c tit r i•rP•-_ iii G.LI_� l I �,�✓�tl_�c -�I�. � �.�'ey f — i1:7 / VI.C_ / IL Y f`'IC-� �- _ Cio At 41 Pv Lo K P_ III,. f I^j eM"IJ nA )As. f- f'; - T" -- - - - .1, � r 1 , r All 1� i r " ' JLi .L•T.L-.-+moi LLll iiii iivv....iu uli ... v. .v.. - RECEIVED SEP 2`5 2001 CLERK BOARD FUPERVISORS CONTRA COSTA Facsimile Transmission Chairperson Gayle B. Uilkema 1-925-335-1076 Supervisor John Gioia 1-510-374-3429 Supervisor Mark DeSaulnier 1-925-646-5767 Supervisor Federal D. Glover 1-925-427-8142 Catherine Kutsuris, Deputy Director Community Department 1-925-335-1222 Diana Silver, Deputy County Counsel 1-925-646-1078 Jar.G'+.LCJlJ1 r-•Glrl'I I'IHIKbUL11 I 6, ZIH I U_N NU.4.=ib N.el RENA RICKLES A1TORNEVATLAW 1970 BRQADWAY.:UITE 1200 CAKLANP,CA 94612 TEL,(510)452-1600 . FAX;(510)451-4115 September 24, 2001 Chairperson Gayle B. Uilkema Members, Contra Costa Board of Supervisors C/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Via hand delivery and facsimile Re: 500 Coventry Road, Kensington; Appeal to the Contra Costa Board of Supervisors to overturn the Community Development Department's determination that Danny Scher's planned May 20, 2001 outdoor concert at his newly constructed amphitheater did not qualify for non-conforming use status. Hearing date: September 25 2001 Dear Chair Uilkema and Supervisors: As the attorney for the Coventry Neighborhood Group, I urge you to uphold the Community Development Department's determination that appellant's proposed use of his newly constructed 250-seat amphitheater on the property of his single-family home at 500 Coventry Road for outdoor amplified concerts and events does not constitute a legal non-conforming use in an R-6 zoned neighborhood. The issues on appeal are as follows: 1) Whether the appellant has established, through clear and convincing evidence, that his proposed use of the newly constructed flagstone and rock amphitheater with permanent seating for 250 people, amplified sound system, expanded stage and lighting system constitutes a legal non- conforming use? 2) Whether, under the language and intent of the United States and California Constitutions and the cases decided thereunder, the appellant has established that the newly constructed amphitheater's intended use is exempt from the R-6 zoning requirements and protected by First Amendment (free speech) "narrow scrutiny" standards, if the appellant's amphitheater's events include political or charitable fundraising? The answer to both questions must be an emphatic, "NO". Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing. 1 JLI .C—".LWul L-GGrI'I 1'Ir MkZ)VL11`I be D.LH 1 l.1'1 NU.QZ0 r.J/r I. LEGAL NON CONFORMING USE A. The newly constructed amphitheater and its proposed uses do not qualify as a legal non-conforming use. The property in issue, 500 Coventry Road, lies within and is subject to the R-6 single family residential standards which specifies which uses, including uses normally accessory to those uses are allowed. Uses not specifically allowed are disallowed unless appropriate permits are obtained. Or, unless appellant proves that the new construction and proposed uses qualify as a legal non-conforming use ("grandfather status") A legal non-conforming use is one, which was valid when created, but by subsequent zoning, it became invalid. (Hill v. City of Manhattan Beach(1971) 6 Cal.3d 279,285) To continue its legality, the non-conforming use must exist on the date of the new zoning and continue, uninterrupted. (Ibid.) Zoning regulations, while recognizing the right to continue a non-conforming use, prohibit any expansion and contemplate the eventual elimination of such uses. California courts haveeg nerally followed a strict policy against the extension or enlargement of non-conforming uses. The purpose of zoning is to reduce and eliminate all non- conforming uses as speedily as possible. Paramount Rack Co. v. County of San Diego (1960) 180 Cal.App.2d 217,228. Changes in use which tend to enlarge or tend to make the non-conforming use more permanent are not protected. (Ibid.) Repairs or alterations which make the non-conforming use more permanent are not allowed. (See Dienelt v. County of Monterey(1952) 113 Cal.App.128) where changing a walled, flagstone patio was replaced by a concrete, flagstone patio was found to be an improper change to a non-conforming use. On the property at issue, before 1988, the facts show that there was no prior non-conforming use, The testimony that you will hear and the letters submitted from neighbors who have intimate, first-hand knowledge of the property well before and since 1947, support the fact that large parties, fundraisers, and events all occurred after Mr. Scher purchased 500 Coventry Road in 1988. ( Cf. Declaration of Louise Hildebrand Klein) Before Mr. Scher purchased 500 Coventry Road, the site of the newly constructed flagstone amphitheater was a natural bowl, without permanent seating, used for small, private family gatherings, a daughter's dance recitals and two family weddings in the 1940's. To the neighbor's knowledge, from that time (the late 1940's) until Mr. Scher purchased the property in 1988, a period of four decades, the site was not used for any events. Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing. 2 JLr,G4.C YUVJl G•GG-'I'1 I'IHM(oUL111 Ec 101H I U1 Hu.4.:iJ B. The amphitheater's new construction and its proposed uses constitute an impermissible expansion and enlargement of the original use. Over the past year, Mr. Scher constructed a 250-seat amphitheater, which includes an amplified sound system and extensive outdoor lighting. Clearly, the proposed May 20, 2001 ticketed fundraising event, which featured Louie Bellson, a world class drummer and the Hayward Swing Band, and included a one-day permit for alcohol sales, cannot be considered a mere continuation of the Hildebrand family dance recitals and weddings, Even if one assumes that the family dance recitals and weddings were not normal accessory uses, appellant has not adequately demonstrated that the property at 500 Coventry Road has been used continuously for activities that are unrelated to the normal uses of a single-family dwelling unit. The appellant's proposed use of the newly constructed stage and amphitheater, therefore, does not constitute a legal non-conforming use, and is not normally accessory or auxiliary to a detached single-family dwelling in the R-6 single family residential district. Thus, even if one were to accept the three notarized declarations by appellants witnesses as valid, the amphitheater as now constructed and proposed for use fails to meet this County's criteria for a legal non-conforming use. The 250-permanent seating, sound and light system cannot reasonably be considered a mere continuation of the Hildebrand family amphitheater. Nor could the proposed May 20, 2001 event , featuring Louie Bellson, a world-class percussionist and the Hayward Swing Band, and similar events, for whatever purpose, be considered a mere continuation of the Hildebrand family dance recitals or two family weddings. II, APPELLANT'S FREE SPEECH RIGHTS HAVE NOT BEEN VIOLATED Appellant's proposed use of the newly constructed stage and amphitheater, which includes outdoor events including a-swing band, musical concerts, with amplified sound, even if for charitable or political fundraisinq_purposes, are NOT normally accessory or auxiliary to a detached single-family dwelling in an R-6 single family residential district. Prohibiting these uses as appellant proposes to conduct them. constitutes a proper exercise of zoning and police power. Appellant's proposed use of the stage and amphitheater is not a free speech issue but rather a question of whether the proposed use of outdoor, amplified amphitheater for 250 guests, is a use normally accessory, or auxiliary to a detached single-family dwelling in an R-6 single family residential district. The determination by the Community Development Department that appellant Scher's proposed May 20, 2001 concert violated the County Code and was not allowed on that R-6 site represents permissible"content neutral" application of the County's zoning laws. Coventry Neighborhood Group: Lit to Board of Supervisors for September 25,2001 hearing , 3 e4.GLxj.L C.eJr'1'1 I'IHKlouL111 & b1H I l_N Nu.4.75 Since the R-6 district does not specifically allow an outdoor 250-seat amphitheater, used as proposed by appellant, Scher, it is a proper exercise of the County's police power to maintain the single-family residential character of the neighborhood by holding that such a use is not permitted, A. Notwithstanding appellant's attorney's arguments, where, as here, the zoninsa ordinances at_issue_are content neutral, there is no question of whether Mr. Scher's free speech rights have been violated. The beneficiary or purpose of Mr. Scher's proposed event was not in issue. It was not the message, verbal or musical, that was to be delivered over the amplified sound stage that was not permitted. Nor did it matter who the recipient of any funds collected may be. It was the fact of the outdoor event itself, its impact on the quiet comfort of the residential neighborhood, and the language of the County's Zoning Ordinances that was in issue. Such general regulations that control "time, place and manner" and are written and imposed without reference to a specific conduct or speech and viewpoint neutral are defined as "content neutral" and do not violate free speech. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal,4" 352,367,373; E.W.A.P. Inc. v, City of Los Angeles (199 7)56 Cal.App.4rh 325). Moreover, the Community Development Department's decision at issue did not bar political or charitable fundraising inside appellant Sher's home (or any other home for that matter). A political, charitable or social event which would not infringe upon the quiet eniovment of the neighborhood would be permitted.' Even if the events planned in his amplified, sound stage, outdoor amphitheater fall into the category of"protected" free speech conduct—political or charitable fundraising--the enforcement of the zoning ordinance that does not permit that conduct in an R-6 zone, does not in itself violate the free speech clause under either the California or United States Constitutions. (supra at p.364) California cases recognize that a regulation, even one affecting protected (free speech) conduct , is enforceable if it survives the "intermediate scrutiny" of time, place and manner analysis. (Ibid.) Legislation may be upheld as reasonable, time, place and manner so long as it is (l) narrowly tailored; (2)serves a significant government interest, and (iii) leaves open ample avenues of communication 1 None of the cases cited by appellant support their argument that Staffs decision should be overturned as having a"chilling effect on Mr. Sher's use of his own home". In the cases where the city's ordinances where overturned the facts were not on point--certain vague classes of charities throughout an entire city were subject a single set of regulations(Hillman v. Britten (1980) 111 GaL3d 810), certain classes of signs were proscribed while others were allowed (Gonzales v. Superior Court (1986) 180 Cal.App.1116), the zoning regulations applied to satellite antennas, barred by the FCC (Hunter v. Whittier) or the regulation was not"content neutral" City of Imperial Beach v. Escott (1981)115 Ca.App.3d 134). Moreover, in Rodriguez v, Solis (1991) 1 Cal.App.40 495) a zoning ordinance barring all signs from certain locations was upheld as a valid time, place and manner ordinance. Coventry Neighborhood Gro}ip: Ltr to Board of Supervisors for September 25,200 1 hewing. 4 JLi L'-1.LYJCJI C_•C--)r,FI11MMbVL1I1 Lic IS1H I l,t'1 I`W.4jZ> t'.b/f (Supra at p. 365) Examples of legislation deemed by the California Supreme Court as"content neutral" and thus subject only to the"intermediate scrutiny" time, place and manner test are new York City's Central Part sound amplification restrictions, .(Supra at p. 367) Thus, the R-6 zoning now at issue, which determines without reference to viewpoint or content which activities are permitted, qualifies for the intermediate scrutiny test. B. Both the California and United States Supreme Courts apply "appropriate balancing" of free speech interests against individual and property rights. Following the lead of Supreme Court Judge Oliver Wendell Holmes famous limitation of free speech rights when balanced against public safety, "[tjhe most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic," (Schenck v. United States (1919) 249 U.S. 47,52), both California and the United States Supreme Courts have felt it appropriate to balance the free speech interests against the "the property and privacy rights" of individuals, Robins v, Pruneyard Shopping Center(1979)23 Cal.3d 899,910) Free speech expression cannot be barred in a shopping center open to the public, but it can be barred when the rights of an individual homeowner are at issue. (lbid,) While appellant has the right within his own home to conduct political or charitable activities, when those activities invade the privacy, property and safety of his neighbors, then those activities are properly the subject of time, place and manner regulations. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (CDOS 7627, August 30, 2001)2. CONCLUSION The Coventry Neighborhood Group respectfully requests that the Board of Supervisors UPHOLD the decision of the Community Development Department that Mr. Scher's proposed use of the newly constructed stage and amphitheater at 500 Coventry Road does not constitute a legal non-conforming use and deny Mr, Scher's appeal. We also concur with the Community Development Department's analysis that what is at issue is a content neutral zoning decision and a First Amendment issue. 2 In an August 31, 2001 letter to this Board, the American Civil Liberties Union (ACLU), BARK Chapter urged the rejection of"any ruling on this matter that would effectively prohibit al citizens from gathering in the privacy of their own home for personal, political or charitable purposes that include fundralsing." Upholding Community Development Staffs decision in this case would not curtail those activities so long as they are within a private home. not Imposed, though loudspeakers in an outdoor amphitheater`upon an entire residential neighborhood. The limitations at issue regulate only the time,place, and manner of all-such-proscribed conduct not iust"protected"speech. Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing , 5 sLr.G4.C-,Uui G-C4r111 ITIHKI3ULII`I 2S b1H I l 11 NU.4ZO h'. (/ On behalf of the Coventry Neighborhood Group, I wish to thank the Board of Supervisors and the Community Development Department for their time and attention to this extremely important matter. Very truly yours, Rena Rickles Cc: Coventry Neighbors Group Diana Silver, Deputy County Counsel Catherine Kutsuris, Deputy Director Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing. 6 Kensington Police Department Case-no : 2001-0960 CASE REPORT -=--==-==_CASE INFORMATION Code Sections - J-. : 2 : 3 : 4 Incident. Type: NO COMPLAMTS Level Beat Location : 500 COV.I:N"R7' RD.,KEI JSENGTON, CA. 94707 Received Date/Time 0-38-2001/1749 HOURS SYNOPSIS : Dom.Viol . El RP REPORTS-HEARING AMPLIFIED MUSIC COMING FROM THE ABOVE ADDRESS. I RESPONDED TO THE ADDRESS AND CONTACTED THE O\NNER. I COULD HEAR AMPLIFIED MUSIC FAINTLY WHEN I REACHED THE:DIUVEWAY 01=THE RESIDENCE. THE MUSIC WAS BEING PLAYED ON THE PROPERTY. THERE WAS A VIBRAPHONE AND A GUITAR BEING PLAYED SOFTLY THROUGH SPEAKERS TO NUMEROUS GUESTS. THE OWVNER STATED'I HE PARTY AND THE MUSIC WOULD B.E OVER AT 1900 1IOURS. NOTHING FURTHER. Involvement:Arrestee, Business, Driver, Owner, Parent, Reporting Party, Resident, Suspect., Victita, Other Involvement --_____--- *Inv: * REPORTING PARTY ------------- DOB 5-9-1943 AGE C Name - GROOM.JOAN K. C. Addr : 464 COVENTRY RD.,KENSINC:TON CA., 94707 P;hon e : 525-6321 Sex.: l— Race : — Iigt : —_ Wat : Flair : Eyes iMisr. . info : --- —� — DLII/St : - ---- 'SN, — - Arrest 44 --_ Charges : Inv: * O\VNE:Z ' _ _10 J9 19.;1 AGE DOB: ---- Name : SCI-IEI:,IDANIEr. I. V Phone : 526-6511 Add : soo cOVEI\TP Y RD.,E,r:NSINNc„ ,cp.?��- Sex : M Race : `�1_49t Wgt : _— Ha.ir : Eyes : Misc . Info : --_— -- DT Ir/Jt : SSN44 Aries # : _Chrges : *Inv: * Name : -- DOB : _ AGE Add : Phone Sex : — Race : I qtPJgt : Hair : _ Dyes : Misc . Info : DLII/St : SSNfl : Arrest It Charges : ** VEHICLE Irl : License : Yr : Make : Model : Reg . Owner : Body : Y : Reg . Address : Comments : Further Yes Action : \ 1�0 Reporting Of_fi r : R. 1-1UI..LK17 PD Disposition : CLOSED P Approved By : �� -. Dare : s p y C aS t t3 cyi ` c v W C:r C to .r p C' c6. .. Q'C7 G 3 a„ n�. �, c X do O c c°3 v 3 a a,ict �' o, a u cn o0tn .cam r � U=—t-o o � at �s (P cy'ti ry s 1- m 3 0:`, u u 0)a rd o osa c ., o �� �.. o c c3 a ►. n c . *TJ -� O [Jt 9U _ s.:-" s.:.� to-a.V CZ r ►, O v C JC t ^Z O b CbE,cn y�j ? u (� U can. . �•"" .. ' s w m.0f 'Cr- c ?+= v y ✓' yE (A ccp v c �a. . .G-� c3 Y ao � iE Zoa ° v cao�<aEC�ec �ry �o o a cc 12 � .� -• 10 S -�� I it � � i i ��� I . � - - . . . .� . . Kensington Improvement Club 103 Highland Blvd. Kensington, Ca. 94708 June 21, 2001 John Gioia, Supervisor District 1 Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D EI 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 membership includes over 700 households. Periodically the KIC Board takes a position on matters affecting the public interest, such as the appeal of Mr. D. Scher from the decision of the Comimnur,i-ty Developnnent Depa tment denying permission to M-r. Scher for use of nn amphitheatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct, and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road area, indeed, almost all of Kensington is zoned as R-6, residential property. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in every respect, notwithstanding that the applicant may intend to turn net profits over to various charities. We understand that advertising,advance ticket sales,and service of alcoholic drinks to audiences of tip to 250 people at a time are intended to occur at the proposed events. Such use, if approved, would set a precedent that.would affect our entire community. Along that area of Coventry there are no sidewalks, and in some places, two cars can pass each other only with great difficulty if there are any cars parked on the road. Although Mr. Scher may make many representations regarding what he will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area, it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cannot effectively prohibit attendees from traveling to the site by car, nor can he guarantee their conduct,whether they have been drinking alcohol or not. If there is an emergency, the difficulty in getting emergency vehicles and personnel to the area could be substantially increased. The amphitheatre is located in a canyon, and even unamplified sound echoes through and up the slope. That segment of Coventry Road (and its surrounds)is extremely quiet and beautiful. Moreover, the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested, the KIC Board believes that the very same issues which concern its on this appeal would prevail and the request should be refused. We trust that the Board of Supervisors will affirm the decision of the Community Development Department, and in so doing,preserve the integrity of the zoning process. This process has protected all of Kensington's residents including those of the dignified and beautiful Coventry Road area. Very truly yours, Linda G. Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Dir.,Community Development Department Catherine Kutsuris,Deputy Dir.,Community Development Department Aruna Bhat.Planning Division Manager,Community Development Department ptember 11, 2001 9:29 AM From: G. Morrison Fax Number: 510.525.7 81 Page 2 of 2 • � 7 G� Kensington Improvement Club 103 Highland Blvd. Kensington,Ca. 94705 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 membership includes over 700 households. Periodically the KIC Board takes a position on matters affecting the public interest,such as the appeal of Mr. D. Scher from the decision of the Community Development Department denying permission to Mr. Scher for use of an amphitheatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct,and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road area,indeed,almost all of Kensington is zoned as R-6,residential property. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in every respect,notwithstanding that the applicant may intend to turn net profits over to various charities. We understand that advertising, advance ticket sales,and service of alcoholic drinks to audiences of up to 250 people at a time are intended to occur at the proposed events. Such use, if approved,would set a precedent that would affect our entire community. Along that area of Coventry there are no sidewalks,and in some places,two cars can pass each other only with great difficulty if there are any cars parked on the road. Although Mr. Scher may make many representations regarding what he will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area, it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cdnnot effectively prohibit attendees from traveling to the site by car,nor can he guarantee their conduct,whether they have been drinking alcohol or not. If there is an emergency,the difficulty in getting emergency vehicles and personnel to the area could be substantially increased. The amphitheatre is located in a canyon,and even unamplified sound echoes through and up the slope. That segment of Coventry Road(and its surrounds)is extremely quiet and beautiful. Moreover,the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested,the KIC Board believes that the very same issues which 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 Community Development Department,and in so doing,preserve the integrity of the zoning process. This process has protected all of Kensington's residents includingthose of the dignified and beautiful Coventry Road area. Very truly yours, Linda G. Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Du.,Community Development Department Catherine Kutsuris,Deputy Dir.,Community Development Department Aruna Bhat,Planning Division Manager,Community Development Department SEP-24.2001 2:34PM MARGOLIN & BIATCH NO.435. P.2i7 RENA RICKLES ATTORNEYATL4W 1970 PROApWAY-SWE 1200 OAKLANP,CA 94612. TEL;(510)452-1600 - FAY4(510)451,4115 44W 21 September 24, 2001 Chairperson Gayle B, Uilkema Members, Contra Costa Board of Supervisors C/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Via hand delivery and facsimile Re: 500 Coventry Road, Kensington; Appeal to the Contra Costa Board of Supervisors to overturn the Community Development Department's determination that Danny Scher's planned May 20, 2001 outdoor concert at his newly constructed amphitheater did not qualify for non-conforming use status. Hearing date: September 25, 2001 Dear Chair Uilkema and Supervisors: As the attorney for the Coventry Neighborhood Group, I urge you to uphold the Community Development Department's determination that appellant's proposed use of his newly constructed 250-seat amphitheater on the property of his single-family home at 500 Coventry Road for outdoor amplified concerts and events does not constitute a legal non-conforming use in an R-6 zoned neighborhood. The issues on appeal are as follows.- 1) ollows:1) Whether the appellant has established, through clear and convincing evidence, that his proposed use of the newly constructed flagstone and rock amphitheater with permanent seating for 250 people, amplified sound system, expanded stage and lighting system constitutes a legal non- conforming use? 2) Whether, under the language and intent of the United States and California Constitutions and the cases decided thereunder, the appellant has established that the newly constructed amphitheater's intended use is exempt from the R-6 zoning requirements and protected by First Amendment (free speech) "narrow scrutiny"standards, if the appellant's amphitheater's events include political or charitable fundraising? The answer to both questions must be an emphatic, "NO". Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 1 SEP.24.2001 2:34PM MARGOLIN & BIATCH r�o.435 P.3i7 I. LEGAL NONCONFORMING USE A. The newly constructed amphitheater and its proposed uses do not qualify as a l_epal non-conforming use. The property in issue, 500 Coventry Road, lies within and is subject to the R-6 single family residential standards which specifies which uses, including uses normally accessory to those uses are allowed. Uses not specifically allowed are disallowed unless appropriate permits are obtained. Or, unless appellant proves that the new construction and proposed uses qualify as a legal non-conforming use ("grandfather status") A legal non-conforming use is one, which was valid when created, but by subsequent zoning, it became invalid. (Hill v. City of Manhattan Beach(1971) 6 Cal.3d 279,285) To continue its legality, the non-conforming use must exist on the date of the new zoning and continue, uninterrupted. (ibid.) Zoning regulations, while recognizing the right to continue a non-conforming use, prohibit any expansion and contemplate the eventual elimination of such uses. California courts have generally followed a strict policy against the extension or enlargement of non-conforming uses. The purpose of zoning is to reduce and eliminate all non- conforming uses as speedily as possible. Paramount Rock Co. v. County of San Diego (1960) 180 Cal.App.2d 217,228. Changes in use which tend to enlarge or tend to make the non-conforming use more permanent are not protected. (ibid.) Repairs or alterations which make the non-conforming use more permanent are not allowed. (See Dienelt v. County of Monterey(1952) 113 Cal.App.128) where changing a walled, flagstone patio was replaced by a concrete, flagstone patio was found to be an improper change to a non-conforming use. On the property at issue, before 1988, the facts show that there was no prior non-conforming use. The testimony that you will hear and the letters submitted from neighbors who have intimate, first-hand knowledge of the property well before and since 1947, support the fact that large parties, fundraisers, and events all occurred after Mr. Scher purchased 500 Coventry Road in 1988. ( Cf. Declaration of Louise Hildebrand Klein) Before Mr. Scher purchased 500 Coventry Road, the site of the newly constructed flagstone amphitheater was a natural bowl, without permanent seating,. used for small, private family gatherings, a daughter's dance recitals and two family weddings in the 1940's, To the neighbor's knowledge, from that time (the late 1940's) until Mr. Scher purchased the property in 1988, a period of four decades, the site was not used for any events. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 2 �t r.c4.(f 001 C-dei`l MHKI;ULiN & diH I UH N0.435 P.4/7 B. The amphitheater's new construction and its proposed uses constitute an impermissible expansion and enlargement of the original use. Over the past year, Mr. Scher constructed a 250-seat amphitheater, which includes an amplified sound system and extensive outdoor lighting. Clearly, the proposed May 20, 2001 ticketed fundraising event, which featured Louie Bellson, a world class drummer and the Hayward Swing Band, and included a one-day permit for alcohol sales, cannot be considered a mere continuation of the Hildebrand family dance recitals and weddings. Even if one assumes that the family dance recitals and weddings were not normal accessory uses, appellant has not adequately demonstrated that the property at 500 Coventry Road has been used continuously for activities that are unrelated to the normal uses of a single-family dwelling unit. The appellant's proposed use of the newly constructed stage and amphitheater, therefore, does not constitute a legal non-conforming use, and is not normally accessory or auxiliary to a detached single-family dwelling in the R-6 single family residential district. Thus, even if one were to accept the three notarized declarations by appellants witnesses as valid, the amphitheater as now constructed and proposed for use fails to meet this County's criteria for a legal non-conforming use. The 250-permanent seating, sound and light system cannot reasonably be considered a mere continuation of the Hildebrand family amphitheater. Nor could the proposed May 20, 2001 event , featuring Louie Bellson, a world-class percussionist and the Hayward Swing Band, and similar events, for whatever purpose, be considered a mere continuation of the Hildebrand family dance recitals or two family weddings. II, APPELLANT'S FREE SPEECH RIGHTS HAVE NOT BEEN VIOLATED Appellanfa proposed use of the newly constructed stage and amphitheater, which includes outdoor events including,a swing band, musical concerts, with amplified sound, even if for charitable or political fundraising purposes, are NOT normally accessory or auxiliary to a detached single-family dwelling in an R-6 single family residential district. Prohibiting these uses as appellant proposes to conduct them, constitutes a proper exercise of zoning and police power. Appellant's proposed use of the stage and amphitheater is not a free speech issue but rather a question of whether the proposed use of outdoor, amplified amphitheater for 250 guests, is a use normally accessory, or auxiliary to a detached single-family dwelling in an R-6 single family residential district. The determination by the Community Development Department that appellant Scher's proposed May 20, 2001 concert violated the County Code and was not allowed on that R-6 site represents permissible "content neutral" application of the County's zoning laws. Coventry Neighborhood Group! Ltr to Board of Supervisors for September 25,2001 hearing , 3 '4.�UU1 JDFJM NHHGOLIN & BIHTCH N0.435 P.5/7 Since the R-6 district does not specifically allow an outdoor 250-seat amphitheater, used as proposed by appellant, Scher, it is a proper exercise of the County's police power to maintain the single-family residential character of the neighborhood by holding that such a use is not permitted, A. Notwithstanding appellant's attorney's arguments,where, as here, the zoning ordinances at issue are content neutral, there is no question of whether Mr. Scher's free speech rights have been violated. The beneficiary or purpose of Mr. Scher's proposed event was not in issue. It was not the message, verbal or musical, that was to be delivered over the amplified sound stage that was not permitted. Nor did it matter who the recipient of any funds collected may be. It was the fact of the outdoor event itself, its impact on the quiet comfort of the residential neighborhood, and the language of the County's Zoning Ordinances that was in issue. Such general regulations that control 'lime, place and manner" and are written and imposed without reference to a specific conduct or speech and viewpoint neutral are defined as "content neutral" and do not violate free speech. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4" 352,367,373; E.W.A.P. Inc. v. City of Los Angeles (1997)56 Cal.App.4th 325). Moreover, the Community Development Department's decision at issue did not bar political or charitable fundraising inside appellant Sher's home (or any other home for that matter). A political, charitable or social event which would not infringe upon the quiet enioyment of the neighborhood would be permitted._ Even if the events planned in his amplified, sound stage, outdoor amphitheater fall into the category of"protected"free speech conduct--political or charitable fundraising--the enforcement of the zoning ordinance that does not permit that conduct in an R-6 zone, does not in itself violate the free speech clause under either the California or United States Constitutions. (supra atp.364) California cases recognize that a regulation, even one affecting protected (free speech) conduct , is enforceable if it survives the "intermediate scrutiny" of time, place and manner analysis, (Ibid.) Legislation may be upheld as reasonable, time, place and manner so long as it is (1) narrowly tailored; (2)serves a significant government interest, and (iii) leaves open ample avenues of communication . 1 None of the cases cited by appellant support their argument that Staffs decision should be overturned as having a"chilling effect on Mr. Sher's use of his own home". In the cases where the city's ordinances where overturned the facts were not on point--certain vague classes of charities throughout an entire city were subject a single set of regulations(Hillmgn v. Britten (1980) 111 CaL3d 810), certain classes of signs were proscribed while others were allowed (Gonzales v. Superior Court (1986) 180 CatApp.1116), the zoning regulations applied to satellite antennas, barred by the FCC (Hunter v. Whittier) or the regulation was not"content neutral" City of Imperial Beach v. Escott (1981)115 Ce.App.3d 134). Moreover, in Rodriguez v, Solis (1991) 1 CeLApp.4"'495)a zoning ordinance barring all signs from certain locations was upheld as a valid time, place and manner ordinance. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing . 4 SEP.24.2001 2:36PM MARGOLIN & BIATCH N0.435 P.6i7 (Supra at p. 365) Examples of legislation deemed by the California Supreme Court as "content neutral" and thus subject only to the "intermediate scrutiny" time, place and manner test are new York City's Central Part sound amplification restrictions. (Supra at p. 367) Thus, the R-6 zoning now at issue, which determines without reference to viewpoint or content which activities are permitted, qualifies for the intermediate scrutiny test. B. Both the California and United States Supreme Courts apply "appropriate balancing" of free speech interests against individual and property rights. Following the lead of Supreme Court Judge Oliver Wendell Holmes famous limitation of free speech rights when balanced against public safety, "[t]he most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic," (Schenck v. United States (1919) 249 U.S. 47,52), both California and the United States Supreme Courts have felt it appropriate to balance the free speech interests against the "the property and privacy rights" of individuals. Robins v. Pruneyard Shopping Center(1979)23 Ca0d 899,910) Free speech expression cannot be barred in a shopping center open to the public, but it can be barred when the rights of an individual homeowner are at issue, (Ibid.) While appellant has the right within his own home to conduct political or charitable activities, when those activities invade the privacy, property and safety of his neighbors, then those activities are properly the subject of time, place and manner regulations. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (CDOS 7627, August 30, 2001)2. CONCLUSION The Coventry Neighborhood Group respectfully requests that the Board of Supervisors UPHOLD the decision of the Community Development Department that Mr. Scher's proposer) use of the newly constructed stage and amphitheater at 500 Coventry Road does not constitute a legal non-conforming use and deny Mr. Scher's appeal. We also concur with the Community Development Department's analysis that what is at issue is a content neutral zoning.decision and a First Amendment issue. 2 In an August 31, 2001 letter to this Board, the American Civil Liberties Union (ACLU), BARK Chapter urged the rejection of"any ruling on this matter that would effectively prohibit al citizens from gathering in the privacy of their own horse for personal, political or charitable purposes that include fundralsing." Upholding Community development Staffs decision in this case would not curtail those activities so long as they are within a private home. not Imposed, though loudspeakers in an outdoor amphitheater`upon an entire residential neighborhood The limitations at issue regulate only the time, place, and manner of all such_proscribeciconduct, not iust"protected'speech. Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing, 5 .7r.r.Gni.GFJYJl G•JOrI'I C1N I Ln IYV.4.7J r. r r On behalf of the Coventry Neighborhood Group, I wish to thank the Board of Supervisors and the Community Development Department for their time and attention to this extremely important matter. Very truly yours, Rena Rickles Cc: Coventry Neighbors Group Diana Silver, Deputy County Counsel Catherine Kutsuris, Deputy Director Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 6 July 24, 2001 Coventry Neighborhood Group's Position: • Commercial-type concerts should not be allowed at Mr Scher's recently built 250 seat outdoor amphitheater at his property at 500 Coventry Ave., Kensington. • Contra Costa Development Department's determination that Mr. Scher not be granted legal non-conforming use status(grand fathering) should be upheld. Grand-Fathering is not supportable. Contra Costa County Board of Supervisors should deny Mr. Scher's appeal to overturn the Development Department's determination. • None of Kensington residents should be subjected to any outdoor commercial-type concerts in any of its neighborhood areas zoned R-6 (residential property.) Commercial-type events are totally inappropriate for Kensington's otherwise quiet and peaceful residential neighborhoods. Granting of any permits for such concerts would set a precedent that would negatively effect our entire community. • Mr. Scher should seek a more appropriate venue for his concerts. If Mr. Scher wishes to be permitted to hold his planned concerts on his property, he should be directed to submit a request to the Community Development Department for a land use permit so that it can be subjected to the normal review process, including a Kensington Municipal Council review at which Kensington community residents could be heard. • In a letter to Supervisor John Gioia, sixty nearby neighbors of 500 Coventry Rd. have expressed their opposition to commercial-type concerts in their neighborhood. The Coventry Neighborhood Group believes that Kensington leaders and residents support that same position for any of Kensington's Zoned R-6 (residential) areas. In addition, nearby Berkeley residents support this position because of the affects such Kensington concerts would have on their otherwise quiet neighborhood. Neighborhood Concerns: • Increased levels of noise from amplified music and from concert attendees • Excessive nighttime illumination • Potential sanitation problems for large crowds • Traffic congestion & parking (legal & otherwise) on our narrow streets • 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.) Thoasanaoaks Neighbouhoob Asleciation P.O. Box 7-174, Beukeley, CA 94707 SIO-SQS-6874 July 5, 2001 Honorable John Gioia Supervisor, .District One Contra Costa County 11780 San Pablo El Cerrito, CA 94530 Dear Supervisor Gioia: I am writing in behalf of Berkeley residents who have complained about the amplified events at 500 Coventry Road, Kensington. As you know, that property abuts a canyon that runs along the Kensington-Berkeley border. The Thousand Oaks Neighborhood Association(TONA) serves 1800 households in north Berkeley, including those residing near the canyon. The TONA Board recently met with the property owner at 500 Coventry and toured the site. Subsequently the Board met with Kensington and Berkeley neighbors of the property in question. The TONA.Board is concerned that the high level of amplified sound from 500 Coventry Road adversely affects the quality of life of nearby Berkeley residents. We are hoping that Contra Costa authorities will address this issue with dispatch. Thank you for your consideration. Sincerely, I Zelda Bronstein, President TONA cc: Aruna Baht Bob Giusti Miriam Hawley Patti Gildersleeve Jennifer Russell Danny Scher 091,101,01 08:01 $510 528 9125 Edwara Diexmann %J Vv" v— EDWARD F. DIEKMANN 44 Kingston Road Kensington, CA 94707 September 10, 2001 Supervisor John Gioia 100 - 37th Street, Room 270 Richmond, CA 94805 Re: Stage and Amphitheater 500 Coventry Road Kensington, California Dear Supervisor Gioia: We understand that the proposal by Mr. Danny Scher to have live concerts on a stage in an amphitheater at his residence at 500 Coventry Road was denied by the Community Development Department and an appeal is pending before the Board of Supervisors. The residence at 500 Coventry is in a residential area in which concerts involving periodically the attendance of several hundred people would be totally inappropriate. Quite apart from the problems of amplified music, supplying sanitation facilities and policing the attendance — such concerts are notorious for attracting significant "gate crashers" — there is an over-riding concern about parking and the attendant safety risks. Kensington is known for its narrow and sometimes winding streets and Coventry Road is among the most narrow and is the most winding street in Kensington. A drive along Coventry day or night will reveal a dearth of parking spaces for even the residents. There are no spare parking spaces and it is absurd to contemplate permitting concert attendees to come onto the street and the surrounding neighborhood. We urge you to vote to deny the appeal. Very truly yours, Mr. and Mrs. Edward F. Diskmann cc: Catherine Katsuris, Deputy Director Community Development Department Supervisor John Gioia 100 37th St. Room 270 Richmond, CA 94805 Dear Supervisor Gioia, 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 housev we found it diffigylt to hold a conversation on our deck or to sleep at`•''night.. Now I am appalled to hear that Danny Scher, formerly of Bill Graham presents, wants to subject Kensington residents to outdoor, fully amplified concerts at 500 Coventry Road. This is clearly an invasion of privacy and breaks all residential zoningairts: I commend. the Supervisors for turning . him down the first time arounaand hope that the legal appeal battle which is apparently shaping up will not change your minds. We, in Kensington,. say "NO LOUD COMMERCIAL AND BENEFIT CONCERTS IN OUR NEIGHBORHOOD" . I cannot imagine the traffic and parking problemsit would involve. You are our governmental leaders, as we have no city council . The County has always been fair and abided by the zoning. in Ken- sington. Please do it again.. CoMiallyy,, Joan M. Haber 86 Norwood Ave. Kensington, 94707 510-526-7205 cc Dennis Barry Community Development Director County Administrator Y l J • • June 27, 2001 Supervisor John Gioia Contra Costa County-- F' 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 recently constructed amphitheater and its planned use at his property at 500 Coventry Rd., Kensington, CA. Mr. Scher has filed an appeal with the Contra Costa County Board of Supervisors to overturn a ruling by the Contra Costa County Community.Development Department which has denied him a legal non-conforming use permit to conduct concerts at that site. We have been informed by-that department that a hearing on this appeal will be scheduled for 1:00 PM on July 17, 2001 at the Board of Supervisor's meeting. We, who are Kensington residents and neighbors of Mr. Scher wish you to know our position on this matter. r Mr. Scher contends that he is entitled to a non-conforming use permit (grand-fathering) based on his claim that the concerts which he intends to hold at his new 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 whose 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 following concerns: - increased levels of noise from amplified music and from concert attendees - excessive night-time illumination - potential sanitation problems for large crowds - traffic congestion & parking(legal& otherwise) on our narrow streets Continued cjti'S �54ti� June 26, 2001 letter 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, we 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: S COVEN-1fl-Y Rbc 9FA1S.1 C,-1 WJE e4 c.9-e . 6Z 7 6vw June 26, 2001 letter to Supervisor John Gioia continued SIGNATURES: ADDRESSES- � q cA rA 79-1 9'y7o ",jet t y Y1 vdAdl .•r� 1 ` Tou�v Jam- d C r kIt �191 u 3 June 26, 2001 letter to Supervisor John Gioia continued SIGNATURES-,/" ADDRESSES: U} ems,7-11 C) Ids I A `� VNS� & CjjeAl�-YX Ar--e kcn.:5 �a � S of 0 June 26, 2001 letter to Supervisor John Gioia contimied SIGNATURES: ADDRESSES: A 7 -7— ell W4 Vi) 1. J July 3, 2001 John Gioia Contra Costa County Supervisor District 1, District Office 11780 San Pablo Avenue EI Cerrito, CA 94530 Re: Danny Scher, 500 Coventry Road, Permit for Concerts Dear John Gioia: I wish to express my opposition to the board granting a permit to Mr. Scher to provide concerts on his property. Music travels far in this quiet neighborhood. The Kensington "Outlook" publishes the police report showing how many times the KPD has to make calls for people to turn down their stereos. And this would be a full- fledged concert. Also after about twenty years, the night football games at EI Cerrito High School were terminated a few years ago because of the noise. Whereas noise would be a concern, I think the traffic problem would be even greater. Coventry Road, the main connection from upper to lower Kensington, is a very winding road. Most of it does not have sidewalks or curbs. The gutters are a foot (12") to a foot and a half(18") deep. Any front wheel drive car that strays off the roadway requires a tow truck to get it out of the gutters. Parking is limited to one side of the street but is violated at times when crowds are present. This impedes the ambulance & fire department to get up and down the hill on Coventry Road. In fact, when the trucks carrying the rocks and flagstones for Mr. Sher's project were using Coventry Road to make deliveries, Coventry was closed at Ocean View Avenue so the trucks could make it up the hill. The road was so narrow and winding that long bed trucks needed the whole road to navigate. With the proposal of filling the amphitheater, seating 300-500 people, this would create an impossible traffic situation, as well as a parking nightmare. I am enclosing a print of a geodetic map,which clearly shows what a difficult location Coventry Road is. Notice the steepness and the sharp turns as well as lack of any passing zones on Coventry Road. Please for the safety and comfort of the neighborhood, oppose this application at the July 17, 2001 meeting. Sincerely, Ivan R. Utter 155 Ardmore Road Kensington, CA 94707 510-526-4279 Enclosure (1) �U:p; :..,; •.��\ f r . "..� ,`y \ \t�\`'l��i�L,,-�,•`,1`�•,�\\`\•\.lt< "-/fey;•; •r(�, ��� tl . }t 1'. � ((j ja�' :S .-'`~�: �S --�,_-,... ,lam •..' i, �_ �• .\ ':+�� \ \�\a, "\ .t }11`\`` � ;1 �' �-^�,'�� •r.,�j) 1't}�` ii(r"'-.. ir-."..,,a-•__••,._���• , : �- •.t t' �,, $\�, : .' � •• �! �S_'�\\ 11}� \'\ �^.` t' _-'i7f.'L�.ct�r :; l07 ' �" ��r�% �co^� , _. tit ` `1 4, `! \ ITh \ �,"`,_.. �� ��'�•�i Of LN ;t��f� 7eN' Ct3 ,t'1 � � ' t' \ l�\��tti,\ �`' \-.. ����'k �/' F-`•�• `�l:i�li� `" �"� 1 {i!'(� ,('(1 ! `} . t ' . ;- S n et View` . � ,��.,S` � i t R ',t•��: .\�`'�,�:�. i ,�,,,1,' .!': •, ','_ r � {� ; , sit, { i.. ' : � : ,_.� �-�, 1 ��• �. _ -_.�:.�::.._:::T� "D� , t 1 tit ti~``' t t t r t ',`' - {: ''` �` "'--- �' �' r ---!\ r `moo; ti�• :.::' , r `° l CD ry tzi cn C '• toa y 1 S' CD m CD CD CL CL WCA 't. \ \ � .� 1. � ` 1` {' •� r\mow , LU 'z to � ', r _ y�•'� ' k,; ,`� ti's''-''" %l 'z - to w n tl , 554 COVENTRY ROAD BERKELEY, CALIFORNIA 94707 Ms. Aruna Baht,Division Manager, Community Development Dept., Contra Costa County 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 ovti-hers, 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 with 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 was married back in the late 20's and 30's. There were no seats. I cannot imagine how Sher could invade our quiet 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, xkinding streets, commercialism and depreciation of property val ues. We are depending on you,our County Authorities, to prevent this encroachment and appreciate your help in this upsetting and painful matter. Sincerely, can Kukulan Reilly EARL F. CHEIT 50 LENOX ROAD KENSINGTON, CALIFORNIA 94707 July 2, 2001 Supervisor John Gioia 100 37"' Street. Room 270 Richmond, CA 94805 Dear Supervisor Gioia: We are writing respectfully to urge that the Board of Supervisors deny permission for the proposed ``non-conforming" amphitheater in the residential neighborhood at 500 Coventry Road, Kensington. Our perspective is that of long-time Kensington residents-44 years in the same home just off the 600 block of Coventry Road. Kensington is residential and quiet. These are the defining characteristic's,of-ou'ne'ommunity.i Residents choose to live here because of these qualities, an.d-over many years the County Administration has supported and helped Lis maintain thein. Even our fire station is designed to look like a residence, to minimize its visual intrusion on the residential character of Kensington. This month's Kensington Outlook, reports (at p. 8) that "Police asked a resident in the 700 block of Coventry Road to turn the stereo down because of a noise complaint." This is not an atypical example of the community's commitment to maintain the peace and quiet of Kensington. Sound that may be exciting in the Concord Pavilion, would be a completely 111aFF 0FJiiaic iiiinusl n of noise pollution in our residential community. Sincerely, ce: Catherine Katsuris, Deputy Director . Comm'Unify'Developme'nt Department 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`'' 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 Mr. 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. erely, J n K. Groom ` Cc: Supervisor John Gioia June 4`h, 2001 Ms. Aruna Bhat, Principal 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 Board 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,we 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 neighborhood 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)rights of residents to the quiet enjoyment of their homes and property. Thank you for your consideration. Sincerely yours, &rg and G1oria•Kwei 10 Kenilworth Court Kensington, CA 94707 (510) 559-3777 kwei I(a)IU.g_ov Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue, El Cerrito, CA 94530 Director Dennis Bang, 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 Mark Wegner 16 Eldridge Ct. Kensington, CA 94707 September 6, 2001 RL-,c �c® Contra Costa County Board of Supervisors 651 Pine Street, Room 106 SEP 10 Martinez, CA 94553 200 CLERK BOARD OF SUPERVISORS CONTRA COSTq CO. Dear Contra Costa Board of Supervisors: I'm writing about the September 11, 2001 meeting of the board at which Danny Scher's appeal of the board's decision to deny him the use of his home for fundraising events will be discussed. I am a resident of Eldridge Court, a private road close to Mr. Scher's home. I strongly support the prior decision to deny permission for this use, and I urge the board to not overturn it. While I support Mr. Scher's goal of fundraising for worthy causes, I do not think the financial gain to these causes from the fundraising will outweigh the disruption to our neighborhood. For example, Mr. Scher frequently cites the lost revenue of$20,000 for Parkinson's from his recent canceled event. I am a chemist at a pharmaceutical company, and I know what kind of money is needed for research. Twenty thousand dollars is less than a drop in the bucket for a cause like eradicating Parkinson's. This would not even buy one medium- sized piece of laboratory equipment in a single biological laboratory. A similar argument could be made for many of the other causes advocated by Mr. Scher. To make a noticeable impact, one should multiply these figures by at least ten, and Mr. Scher should use his considerable talents to organize larger events in more appropriate venues. What we as neighbors can look forward to, if his plan is approved, is a lot of congestion and noise during his events, and no noticeable benefit, either to ourselves or to the causes the events are intended to support. Sincerely, Mark Wegner cc: Supervisor John M. Gioia a t�£+- :l�vll,11t:Y� :�!? ,•�I f::sZ.:.t��c,: ._'';i.s y .•c.. v .�.i)u:t .. ', ' :'3i kb t)tr l's'� R3 1`i''[i? •i tr'1t .�'✓�.'. ci.ii:.�3�7Y',? {4 111 i�:iL .C,54: �� coust.ruct'lll.�; '.4 �`� : c's[? ph'theeater at 111.1 s.:1tol3:le.S:lte...at:�.�l.0 �Ltveati�' .f�:oaij-._cnisingso�`•)1 andt�'3.r�T ie.. �Jlc` ms l.t? 1,C?ki '>~,t)Itcerts. at ii':iit 1:11?.Itd1.1'11?c;I? ,'i'+'.. I ]' api.40s, to 17 !coilC7.i171ty tivI.�1 ii1CS i:3bi1bl-y 1-4`t:Cj, the- matter f to. 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Uti'�tlwe ll'i. i )rill i7' :�`CI3 lri t:c ti re IE c',.t?.L Nva tlt' VOU to know(_)lV' L�1a.t. ti :�If 'F' t'V I at`TC�17 �ti".tJ�)t CJS Ci d d .1:�:O1—isti,t1ct,bn c?3:it� Open., of any aunp-hil eat G.1 :t.l OJTIT jLAI 7 u ! hh `�'! 1. i_{?i .•i � . r r( r $ T y 11 �.. a �'' ........_-.• rr.r-:� .:ice:-.:� �s.•�-f��r: � /, q'- _ y A •t .. - � i:;.:�' r\ �,1,'S�t{"(:1 is _ i.l�`, ��,'`�' i�;IT.y �\.-_..iy` �if(i'1:`'}'j:l 5•:i:'i.ii��:}.y 2.1, 2001 i G f _'0 JCia� - i r 1 ,k } �: i .. .. ?�lj.�.`:;r[Ii:l't�' '\:i`'i�., 11••1t:�11 .E?t 1. ?:E L°. :I:'T.'.�:t1�:� i:l:'• (.(•? q..{. iii.:t ai ,`:�,% Ct -3�:�: !:''C:i in.—it. i :. .. .. 1'1"e the, i ..9 ;1 �� t\ t '4 :.iii\ }C.1. !f { i e . tie i� �.i 01144 . ;;.;9 r. :;..,.:i•1 - � . i yn 'atoi iI:1 C�iil L:l' '� � vi.:# � `t,'._• .�1::,�..��1 .}: -.1 j�i, ��(.:i���.t ..:tl�i t:i,:��.:: is{.!�.�;� �.j,%. .L':i��.:5. ;:i. t. t Ij r71. AJ J G.� j ff r = of Q t i to V, � Q i � � , ( rsy rP�o�o,ti) 55y Ceve, �'�y ILa � Zy-() 6gZ &A.,c 1 tl c , ,� l P, i'r �c�•T�.� tt (� feYSc }• ,NQ6v } 5Sg 34 7 y J MAY-'15-01 WED 69 :42 .AM REILLY 5240692+++ P. 01 Pxomoter'� pat*. •$ootids faii�ialr : Backyard concert plan:stirs*up�ori-,:- trQversy" (journal,April 2'I)squinds just like the baekyardeolleerta We oolitinue to endure in Palo Alta Danny Scher sdd Bill Graharti Presents built Shoreline Am- phitheiter 'in Mountain. View. :Ttiey. p6iIiised to be good civic i�eighliod and do .something about the'.sound that ' thumps our walls and rattles our windows wring Shoreline concerts.That was 10, years ago:Nothing was done;despite the.. promises of Mr. Scher on.behalf,ofMr Gfaham' , Now I see Mr.Scher is planning to pr'A :peat this ey building ark amphitheater in.: s own ZdWard. I urge his.neighbors; to look at his mord of dealings with.the 'e. citj.of Palo Alta and what'he promised `. :Qbobt mitigating Palo Altins` cobcerns•' to about hbise and traffic from Shoreline;.. is Azi phifheatgr our civic:.zieighbor ip "Mountain vgw Ke ;Good fuck to Mr.$cher's'neighbor&.,l hope theyy can do something to' a life- p_ time of thuitiping walls arkd rattling win-dows._ Linda L.Turaer &- )Patio Alto. July 25", 2001 Supervisor John Gioia Contra Costa County,District 1 11780 San Pablo Avenue El Cerrito,CA 94530 Dear Supervisor Gioia, As a concerned resident of Kensington, I appreciate the opportunity to have met with you to discuss Mr. Scher's appeal of the County Planning Department's decision and to discuss his possible application for a land use permit to allow such use, should his appeal be denied. We hope that the Planning Department's recommendations to the Board of Supervisors(July 17, 200 1) will be upheld by the Board and that the normal procedures will be followed in your review of this case. If this were to become a land use permit issue, I hope that input by community residents and by the Kensington Municipal Advisory Council will be taken into account. As with many of the Kensington residents we have talked to,we are concerned with the following: (1)we do not want to re-define the terms of R-6 zoning, (2)we do not want to have public events in a residential neighborhood, (3)we do not want to change the nature of the neighborhood that use of the"amphitheater" will create, (4)we are concerned with the reduction of property values in the neighborhood(my realtor has alreadytold me that the value of our home may have been reduced by about$100K), (5)we are concerned about the safety and security of the neighborhood, (6)we are concerned with the 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(7)we are concerned about the effect that holding such events will have on the rights of residents to the quiet enjoyment of their homes and property. Additionally, living at the end of a long and narrow driveway bordering on the"amphitheater"gives us special concem about a specific safety problem that you may not be aware of. In the last two months, there have been at least three instances where our access to the street was blocked with cars or trucks parked in our driveway(one of these was a sound truck installing equipment for the May 20th event). In two of the cases,we could not find the driver and we were blocked in for some time. Furthermore,there is now a set of steps leading from the amphitheater to this driveway which would surely be used by the audience as an"escape"route from the"amphitheater"should there be an emergency during a performance. We would be blocked from access to public streets and perhaps even our safety. Calls to enforcement agencies would not help in such an emergency. We hope that Mr. Scher's argument for Constitutional rights to freedom of expression will be tempered with the Constitutional rights of his neighbors. Sincerely yours, G rge . Kwei 10 Kenilworth Court,.Kensington,CA 94707 (510) 559-3777(home); kweil _1,lnl.gov Cc.Ms. Aruna Bhat, Principal Planner, Community Development Department, Contra Costa County Mr. James Carmen,Chair,Kensington Municipal Advisory Council Mr. Robert Giusti, 112 Willow Lane, Kensington,CA 94707 July 25", 2001 Building Inspection Department Property Conservation Division Contra Costa County 651 Pine St.,4th Floor Martinez, CA 94553 Reference: "Amphitheater"at 500 Coventry Road Dear Sir or Madam, Last night, concerned residents of Kensington(and three from neighboring Berkeley)met with Supervisor Gioia to discuss Mr. Scher's appeal of the Planning Department's decision on legal nonconforming use of the"amphitheater"at 500 Coventry in Kensington and the possible subsequent application for a land use permit. During the discussion, I mentioned that Mr. Scher is already in violation of County Zoning Ordinances by having lighting strung up throughout his property at heights above 7 feet from the ground. I was urged by Mr. Gioia and others to bring this up with the Building Inspection Department of the County. Mr. Scher had these lights placed around his property at the time the amphitheater was near completion(sometime in May this year). They appear to consist of low-voltage high-intensity flood lights which are placed all the wary from the ground up to the tops of trees, and they have been placed all over his property, around his house as well as in the"amphitheater". Some of the lights in the"amphitheater" shine into rooms in our house. They present an annoyance aand to ou neighbors at 2 Kenilworth Court. Mr. Scher often has these lights on, whether or not the "amphitheater"is used,and often quite late into the night(well past the time we go to bed). The ones that are often kept on latest are the ones in the"amphitheater"closest to our property. After coming back from the meeting with Supervisor Gioia, we noticed that Mr. Scher had the lights surrounding his house(but not the amphitheater)on. Both Gina Covina(2 Kenilworth Court)and the Eichorn(393 Coventry Road)witnessed this. Since we are not aware that a land use permit has been granted for these lights,this is a clear violation of R-6 zoning ordinances and we hope that these lights can be removed or otherwise brought into conformance. Thank you. Sincerely yours, ��V v� qGege el 10 Kenilworth Court,Kensington, CA 94707 (510) 559-3777(home); kweil@g.11nl.gov Cc: Supervisor John Gioia,District 1, 11780 San Pablo Avenue, El Cerrito, CA 94530 Ms. Aruna Bhat,Principal Planner, Community Development Dept., Contra Costa County Mr. James Carmen, Chair, Kensington Municipal Advisory Council Mr. Robert Giusti, 112 Willow Lane, Kensington, CA 94707 Mrs. A. K. Oppenheim 0 54 Norwood Avenue, Kensington, Ca. 94707 - 4V C-0 1 7� KENSINGTON MUNICIPAL ADVISORY COUNCIL Reply to: 118 Windsor Ave. Kensington,CA 94708-1043 7 September 2001 Mr. Dennis M. Barry, AICP Contra Costa County Community Development Director 651 Pine Street, 4h Floor North Wing Martinez, CA 94553-0095 RE: ZI019126 Dear Dennis: In the matter of the hearing on the Danny Scher property before the Board of Supervisors scheduled for September 11, 2001,just so there isn't a question on the part of the Supervisors as to the position of KMAC on this matter, I would appreciate having the materials they receive show that KMAC has not been able to take a position or make a recommendation to you on this matter because it has never formally come before us. Since the owner made no application of any kind to the Community Development Department, it has never been reviewed in the normal matter and now only appears before the Board as an appeal of an administrative decision. It is interesting to observe that since the work on the amphitheater was done as landscaping which met code requirements for exemptions in every respect, inspectors felt they had no grounds for requiring an application to the planning department. Yet the finished product was something other than the landscaping"sum of the parts." Are there lessons for the future we can learn from this? If you feel there are, we hope you will share them with us. Sincerely, Ja es M. Carman Chairman cc: Supervisor Gioia, Diana Silver esq., Rena Rickles esq., Michael A. Silva 9-aS-2001 1 :3dPH FROM DANSUN PRODUCTIONS 510 526 6522 P. 1 Danny Scher 500 Coventry Road *Kensington, CA 94707 510/526-6511-Fax: 510/526-6522 September 5, 2001 Supervisor John Gioia Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D EI Cerrito, CA 94530 Via FAX: (510) 374-3429 Total Pages: 2 Dear Supervisor Gioia: As you are aware, the County has forbidden me from using my house for charitable non- profit activities because they have determined that this use is commercial in nature and in violation of the current zoning ordinance. While people commonly use their homes for such fundraising events, never before has the County taken such a position and applied the ordinance so strongly as to block events at my house. If this position is upheld, then the County must apply it to everyone. For the last thirteen years I have been using my home to raise money for political, religious, health and community issues. There has never been any bonafide complaint during any event. Each was held during reasonable hours, with reasonable limits on sound, encouraged car-pooling and the cooperation of BART and the local Police. It was only when recently relandscaping my yard that this matter even came to the attention of the County and certain neighbors who have succeeded in pressuring the County to prevent the use of my home for charitable non-profit events, including a benefit that was to be held for the Parkinson's Institute that had only 36 people coming to my house. The $20,000 that was raised was all refunded. This letter is to make you aware that not only do I consider this an infringement of my freedom of speech; the ACLU does as well, as the attached letter states. This matter will be discussed at the September 11, 2001 Board of Supervisor meeting. Reaards, an�Sch cc: ACLU Attachment 9—©S-2001 1 :35PM FROM DANSUN PRODUCTIONS 510 526 SS22 P. 2 ACLU of Northern California MIR LW BARK Chapter • Berkeley - Albany - Richmond - Kensington American Civil Liberties Union 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 KenSin«toct 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 1 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 "furtdraisings" and "fundraising activities" may not be held 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 he an impermissible restriction of free speech rights. Thank you for your consideration of ting your decision on this mailer. this important principle in mak On behalf of the Board of the Berkeley-Albany-Richmond-Kensington Chapter of the American Civil Liberties Linion of Northern California, David Carducci 'Board Member S-14-2001 A:01PM FROM DANSUN PRODUCTIONS 510 526 6522 P. 2 P17 ARI.INGTON AVENUE / KENSINGTON. CALIFORNIA 94707 TELEPHONE: 510-526-4141 Aim) (f>urfirlil U1117id of jRnlire March 27, 2001 1 State of California Department of Alcoholic Beverages 7677 Oakport Oakland, California 94604 1 On Sunday, May 20, 2001, Danny Scher of 500 Coventry Rd. , Kensington, California plans a fundraiser for the Parkinson' s Tnsti.tu.te, to be held at his residence . This event will include the serving of wine and beer, individually purchased. The Kensington Police Department approves of the planned activicy. Bary D. Gar i�ld Chief of Police S-14-2001 1 : 14PM FROM DANSUN PRODUCTIONS 510. 526 6522 P. 4 B A R T SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT 800 Madison Street-Lake Merritt Station P.O.Box 12688 Oakland.CA 94604-2688 Telephone(510)464-6000 April 10, 2001 w1AMlI 1991 Danny Scher 500 Coventry Road WILLIE 8.KENNEDY Kensington, CA 94707 F4[SiOk NT JOEL KELLER V1Gt-VRDear Mr. Scher: FSIDt:NT IHOMAS E.MARGRO CtNEFAI uarali,ER Permission is hereby granted for use of the EI Cerrito Plaza BART parking lot to park approximately 50 cars on Sunday, May 20, 2001, between the hours of 1 p.m. and 6 p.m. for the guests of your DIRECTORS Parkinson's Institute benefit. . DANRICMARI,) Permission is granted for random parking only. Exclusive use of IS7 W'"�T designated space is not authorized. Also, BART will not be JOEL KELLER responsible for any loss or damage to vehicles; or for any injules gra aSTAlcr incurred. The parking lois should be returned in the same conditioN in ROYNaKAUEGAWA IRD D:57gICT which they were found. CAROLE WARD ALLEN •TH DIGTR.K:T Station use for the three shuttle vans is also authorized to shuttle PM7nERRW.TSNYDER attendees from BART to your event. Please make certain that the THOMAS M.BLALOC:K vans do not sit unoccupied for longer than 15-minute periods. 6Te ni.STRI[T WILLIE B KENN(.)Y I encourage you to suggest to your guests to patronize BART. Good 77.t 0Lii9K;1 . JAMLSFahr, luck with your event. 87H DiSTA CT TOM RADULOVICH Sincerely, 9tti DICTRK:T Fannie Mackson, Acting Manager Station Operations Support cc: K.Gilbert J.McHenry BPD i • 501 Coventry Road Kensington, CA 94707 August 7, 2001 Hon. John Gioia Supervisor, First District 11780 San Pablo Avenue, Suite D El Cerrito, CA 94530 Dear Mr. Gioia, We live directly across the street from Danny Scher and we have been amazed by all the commotion raised over his amphitheater. What this community needs is more people willing to use their resources, including a beautiful, large garden and acquaintance with many musicians to further such worthwhile causes as a fund raiser for the Parkinson's Disease Foundation. The people who oppose his use of his own property for raising funds for nonprofits have a variety of objections. Sonic of his neighbors are actually miffed at him because he either cut out too much shrubbery or didn't cut down enough trees, issues that clearly bear no relevance to his use of the amphitheater. Others have been swayed by a troubled former neighbor who did her best to stir up the neighborhood by delivering repeated, always anonymous and deliberately inflammatory messages, suggesting there would be rock bands blasting into the night. While we are aware that there may be some inconvenience to us associated with a few concerts a year, we have been very clear with Danny that we will let him know if and when we consider his concerts a real problem. Until such time we will either relax and enjoy the music (assuming we can even hear it from across the street) or make plans to be away for a couple of hours during the afternoons of his concerts. We urge you to lead the Contra Costa County Board of Supervisors to reconsider Mr. Sher's permit request on the grounds that such events will do much more good than harm. Establish a frequency limit , require off-site parking arrangements and specify clearly that all proceeds for such events must go to nonprofit organizations if that will mollify the detractors, but be assured that we admire Danny for what he wants to do and are willing to support its going on directly across the street from our home. Yours truly, Robert G. Bergm Wendergman July 24, 2001 Supervisor John Gioia Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D El Cerrito, CA 94530 Dear Supervisor Gioia: I am writing about two things: the amphitheatre at Danny Scher's house and the deer. First, I am totally in support of the amphitheatre and how Danny wants to use it. I have lived virtually across the street from his backyard for 43 years and have watched how Danny has cared for the property, upgraded it, maintained it and uses it to raise money for many good causes, political, non-political and community events. Despite what you may have heard otherwise, there has never been a problem with either parking or the sound; in fact, I have never even heard his amplified music. Please do whatever you can so he can continue to use leis house for charitable events. Second, the deer population is out of control. Can something be done to stop their rate of multiplication? This is a problem in the entire community. Thank you for your attention to these matters. Please feel free to call me at(510) 526-1795 with any questions. Sincerely, 4,44J4-1 Xv-^ ' Gisela Larkins 537 Coventry Road Kensington, CA 94707-1328 CONSIDER WITH RECEIVED Patrlcla Quids SEP 1 0 2001 527 unary Rd Kerairoon CA 94707 CLERK BOARD OP SUPERVISORS CONTFa%COSTA CO. Sepasmber 9, 2001 Clark of the Board of Supervisors ox"Coate County 661 Pine Street, Room 106 Mnrdnaz, CA 94653 Dear Clerk of the Board: As I am unable to attend the County Board of SW0viarx's ffmw dng on Tuesday. SeptWnber 11 th, I am writing to express my support for Danny Schar's Iron to hold five benstit converts a year on his prop"at Soo Coventry Road. I have been a homeowner and reskk nrt at 527 Coverwy for over 20 years, and my front door Is approximately 300 Meet from Mr. Scher's amphitheater enewwo. In the past 19 yam V*t Mr. Seer has lived in his home, I have never been bothered by any event that has been hold on his property. The property is zoned in such a way that would allow three additional houses to be built on the same location as the amphitheater_ If Mr. Scher chose to do that, I believe the Impact on the nev%tx"t►ood, and the entire ooalmunity, would be tar greater. A sirgo family home generates approximately 10 vehicle trips a day. Three new homes on the property would ftngore generate an additional 30 vBhkft trip$a day, 210 trips a week, 900 brigs a month,for a total of 10,800 trips a year. This poumbal traffic impact, In addition to other year—round Impacts on ft commuruty, would be tar greater than tive Sunday atbernoon oorts is a year. In ctxming to keep the property as open space, and In a park-tike, wooded setting, there Is reason to believe that Mr. Saher's preferred use of the property wlU actually increase property values to the surrounding property, and the neighborhood. Pleas®feel free to c" ad me N you have any quest ons. SirIcerely, Pabiciat Quids (510) 524-1851 Phone Message Subject: Phone Message Date: Mon, 02 Jul 200114:45:20-0700 From: Terrance Cheung <tcheu@bos.co.contra-costa.ca.us> To: John Gioia <jgioi@bos.co.contra-costa.ca.us>, Rayne Martin <rmart@bos.co.contra-costa.ca.us> Sharon Silverman & Nathan Cook 679 Coventry Road in Kensington 415-973-8630 w 510-558-3107 h Called to let us know they're in support of Danny Scher' s theatre. Says critics have blown issue all out of proportion. Lives 1/8th mile from Danny. Terrance Cheung <tcheu@bos.co.contra-costa.ca.us> Staff Supervisor John Gioia,District I 1 of 1 7/5/2001 8:10 PM June 25,-2001 Hon: John Gioia Supervisor, First District 11780 San Pablo Avenue, Suite D EI Cerrito, CA 94530 SUBJECT: Amphitheater at Sher Residence, 500 Coventry Road, Kensington Dear Mr. Gioia: We have no objections to Danny Sher holding periodic benefit events in his large backyard. We are back fence neighbors with Mr. Sher. We moved in about two years before he bought the Hildebrand property. We have been delighted that he has taken good care of this attractive property and made sensitive improvements to it. Over the years, Mr. Sher has hosted some big Sunday afternoon parties, some with live mUsic. They appear to have been well organized and on at least two occasions, we have seen a valet parking service at work. We have not noted any neighborhood parking , problems during these parties. These parties were over by 5 or 6 PM. The music wis always pleasant and by no means objectionably loud. We were surprised and dismayed to learn that the County would not allow Mr. Sher-to host a Parkinson's Disease benefit. We are certain that any weekend of the year a number of other County residents host benefits in their homes and gardens. Without question, each week there are also a number of very large private parties, such as wedding receptions, anniversary parties, graduation parties, etc. involving large numbers of people, caterers, and live or recorded music. Some of these, we are sure, last well into the evening. We urge the Board of Supervisors to do two things: 1 . Allow Danny Sher to open his large garden to charitable events. 2. Set written guidelines, available to the public, as to under what circumstances County staff is to disallow a charitable benefit event at a private residence. Considerations could include time of day, frequency of events, definition of a charity (i.e., IRS Section 501(c) organizations), etc. Thank you for looking into this situation. Arthur J. dworth / �� o-ObLCc1G Evelyn . Woodworth 600 Coventry Road Kensington, CA 94707 510-524-7452 May 23, 2001 Dear Mr. Scher I am sorry that I was unable to attend your open house last Sunday. I am even sorrier that I did not write a letter for the Contra Costa County Board that heard your permit request. = I so admire your desire to actually do something in the world, and being a neighbor, think that any tiny inconvenience to me a few times a year is a small price to pay for the great good that it supports. Truth is, I did not think there would be any opposition, so I did not pay any attention. I do apologize. Please feel free to use this letter and any further support I can give you in your future actions. Thank you for trying to make a difference in the world Yours truly, Jerry Bratcher 34 Avon Rd KerVington, CA 94707 525-5481 Danny Scher From: Silverman, Sharon (Law) [SDSb@pge.com] Sent: Monday, July 02, 2001 3:57 PM To: . 'danny@dansun.com' Cc: 'Cook, Nathan' Subject: FW: Use of your residence for fundraising activities Danny: Please use .the below as you see fit, but as discretely as possible. Thx. S. > -----Original Message----- > From: Silverman, Sharon (Law) > Sent: Monday, July 02, 2001 3:55 PM > To: 'danny@dansun.com' > Subject: Use of your residence for fundraising activities > Danny: > I just wanted to let you know that I called Supervisor Gioia's office > around 2: 30 p.m. today. I spoke with Terrence, who said that he would > e-mail the contents of what I had to say to the Supervisor. First, I > identified myself as a resident of Kensington who lives an 1/8 of a mile > up the street froi-.i you at 679 Coventry Road (Coventry and Lenox) . Then, I > basically told Terrence that I was "in full support" of the fundraising t > events that you planned to hold on your property. I thought that, in my > opinion, what you intended to do was perfectly within your rights to do on > residential property (e.g. , any resident of Kensington has done this > before as a routine use of their home; is planning on doing this type of > event in the future; or would feel perfectly within their rights to use > their home for this purpose if they saw fit to do so) and that you had > been responsive to every real concern from the neighbors that had been put > to you (parking, noise, number of events, purpose of events, timing and > length of events; number of people involved/attending; type of evert and > entertainment provided) . > I also stated that I felt the solution was to let you conduct these > activities within the clear parameters that you have laid out, and, if > there is a problem with how these events are actually carried out, the > County will hear from the residents in significant amounts--not just from > cranky neighbors who don't even have an understanding of the facts. > Moreover, I believe that allowing you to go forward with an event or two > does not create any kind of estoppel issue for the County. In other > words, if there are real problems with how an event is actually carried > out, then the County should rightfully step in to control or limit your > activities further or shut them down completely. There is so much > scrutiny on you at this point that I personally believe that you would do > anything and everything in your power not to give your neighbors cause for > any real concern. > I also told Terrence that I believed why the Supervisor may have not heard > from your supporters is that the vast number of residents felt as I do, > but have not made the time to voice this opinion--we are the quiet, > apathetic majority. Also, I told him that I thought the people that were > complaining were either completely misinformed and had no understanding of > what you were proposing to do or were trying to air personal issues they > have with you in a public forum that has nothing to do with your intended > fundraising activities at your residence. > While I told Terrence that what you had planned was a "pure positive" for > our community and that I planned on attending your fundraising events, I > forgot to tell him what a tremendous cultural and social benefit I thought > you were providing to our community. It 's a real shame when someone like 1 _ ............. . > you, who has so much to offer, is in danger of.getting shut down by a few > "bad and sour apples. " In. short, I view you as an "established" > Kensington resident of 13 years who plans on living in this community for > years to come, and, lucky for us, plans on giving back to his community in > such a positive way with these events. > I also forgot to mention that my relationship with you is purely as a > neighbor and that I have "nothing to gain" from the outcome of this > situation other than the benefits that any Kensington resident could . > expect from sharing a community with a neighbor who plans to carry -out > such wonderful cultural/philanthropic events. Moreover, as someone who > regularly walks in the community, I really appreciate the effort you have > gone to in preserving and enhancing the natural and open appearance of > your property (which would also appear to be a rare quality to find. among > Kensington residents since our .City contains housing jammed into every > inch of space possible) . > Good luck with you endeavors, Danny! > Sharon Silverman > (415) 973-8630 2 Danny Scher 500 Coventry Road •Kensington, CA 94707 510/526-6511•Fax: 510/526-6522 July 19, 2001 Supervisor John Gioia . Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D EI Cerrito, CA 94530 Dear John: It was nice talking with you yesterday and getting your reassurance that all the positive letters that you have received will be included in the Final Staff Report that will be presented at the September 11, 2001 Supervisors' meeting. I have enclosed copies of letters that I have received, in the event you haven't received them. In addition, I have enclosed a copy of the list of eighty-seven people who signed in at my Open House May 20, 2001, which you also attended. As you know, at this event I answered everyone's questions as to the frequency of use, how would handle parking, etc. On June 27, 2001 your office received a petition opposing charitable uses of my house, which had fifty-nine signatures. Only two signatures on the opposing petition were from people who attended my Open House. My conclusion is that people who attended the Open House or called me to ask questions that concerned them, were obviously satisfied with the answers they received and thus chose not to sign the petition circulating the neighborhood. In short, I want you to know that while the staff report only included opposing letters, there seems to be more interest that my gardens be used for charitable, fundraising events in a responsible manner. look forward to your response. Regards, Danny er Enclosures cc: Edward Shaffer if At. I�q�. R� . 7*4-7 03 Zq �Z Ae dVert'We 0ff► 6 CoYtSz4-715"c cu�a� Vic. 7SZlo-� f MEW • . .. : . "i/%N 70 sfyiqlfad*fd S�G-a�3� w � Pao&� l8 AdIO lel SZ�G• 513 L�2 Moesx.K, 511a_ceuwd . Int�� G /E!L a�f/ G� �.•t� Chr:.s r4)r.4lrtEtN SQA 8/8 OLtferel�t . $� St6 — L i t a �- c tc:n � 3'? Caveh Y 0.dkens. s�i�s 5 Ham► lv � k4earuxodnP,a �o�f s�o - �6$1 Cot�ct�- `'k'� y7 sc D ►J CIIII::::O( s 79 CID✓idr-�y sss8-3( o7- -SL5 LZIOx <--O , Si Ivcr�..4.,., lUw-f�. Glc��.�.5 (�.6/��0�1 G,,.J. tut*.c (1yetiv 6WA 1 At4*-f�F�144OW "Ala 9" Mc.t � ..w Fma„m«. Ila, W. 3-/ r� 7/6— S�r::i3YD dr (SUR LO�w �ia�ds�. 7 7 I6G /kiOlMsorc- A�� �BDNit Y11� Coca ,35� �CF191,I `ri Sys r F►'1..� .�.�11�, a4 did...: Gf 5 Y-OS a -'IM400t Aff 816 Ruclii.� tisa 14� 9 � h ftP EAS.► .� � �t � �sr�nw� �� Vyy/ 1�LtItT O -. ar- J;L Ootw Aw- W.Z� >i*Ky .� A ves A s G 2 t•� _ - iemh_ 14- NN *IN � d' 1p 4y �c Tot � << rd R � � f qaLt 7d-.s sa a ox A vim. J tt.1aU440 CIS Il 31 3z� SVM d tC G-01-2001 11 :37AM FR(DANSUN PRODUCTIONS 510 S26 6o P. 1 �o TREIr A m �r J41. �^ THE PARKINSON'S INSTITUTE J.William Langston.M.D. May 21, 2001 President Ticket Purchaser/Donor, Donato Di Monte,M.D. Address Director of Basic Research City, State Zip Code Caroline M.Tanner.M.D., Dear Ticket Purchaser/Donor: Ph.D. Director of Clinical Research Thank you so much for your support of our Louie Bellson Benefit Jazz Concert scheduled for May 20,2001. It was with much regret that that the event had been James W.Tetrud.M.D. canceled due to regulations set forth by Contra Costa County. We are so Medical Director of Movement disappointed with this decision since Danny Scher, at whose residence the fundraiser Disorders Treatment Center was to take place, really took this effort upon himself to create an enjoyable event for all that now cannot go on as-promised. While this is unfortunate and the money received wouldhave gone to furthering our strides in finding the cause(s) and eventual cure of Parkinson's disease, we would like you to know that Mr. Scher did everything on his end to ensure all expectations were met and regulations followed. As the decision is being appealed by Mr. Scher, I would like to extend my apologies to you for any inconvenience this may have had on your plans. In the meantime, we are processing refunds for donations received and will return them to you as soon as possible. Please feel free to contact me at 408/542-5619 with any questions or concerns you may have. Once again,thank you for your generous support. I look forward to a continued relationship with you in the future. Sincerely, Heather M. Chester Annual Fund Manager 1110 Morse Avenue Post-it*Fax Note 7671 Dete O papee� Sunnyvale.CA 94089-1605 To From �" Tel;800 786,2968 (:o. Fax:408 734.8522 Phone# Phone# www.parktnsonsinscituce.org ---!Fax## Faz SEP-19-2001 WED 02:02 PH SUPERVISOR KEITH CARSON FAX N0, 5102715151 P. 02 J�t,I OF 444�E` BOARD OF SUPERVISORS c4!/F 14EIT11 CARSON SUI'.I:VI41fL 1+11711 IiI:T lili'T September 19, 2001 Board of Supervisors Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553 Dear Honorable Members of the Contra Costa Board of Supervisors: Just as Berkeley city council member Miriam Hawley stated in her July 601 letter to your board, several of my Berkeley constituents live on the Berkeley-Kensington border just across the canyon from 500 Coventry Road in Kensington,where Mr_ Danny Sher proposes to use his outdoor amphitheater for fundraising events. As you are likely aware, these neighbors of Mr. Sher's are concerned about his plans to hold fundraising events in the amphitheater on his property. As your neighboring county colleague, I ask that you give full consideration to their issues as you deliberate Mr. Sher's appeal that will be before you September 11Lh. To reiterate the concerns of my Berkeley constituency: • Currently the area is already a fire hazard area as it abuts a canyon. Already my Berkeley constituents in this area pay higher rates and premiums on homeowners insurance and are subjected to building limitations since they live in such a fire prone area. If concerts were permitted, decreased fire access could occur since events would be such an attraction and moreover, could complicate fire truck access. • Potential noise, lighting, and traffic caused by the events could have important impacts on the people who live in this neighborhood of single-family homes. Since the canyon itself naturally amplifies sound, neighbors are concerned about noise as generated by these proposed concerts. Also, since there are no restrictions on outside amphitheater audiences, some Berkeley residents fear their streets and cul-de-sac's could be converted into areas to listen to music even though they are not inside the actual event. • Furthermore, their unease about the proposals is compounded by Mr. Sher's apparent unwillingness to agree to any parameters for the events such as their frequency, hours of operation, or the number of people who will attend. I am asking that you consider the concerns of the Berkeley neighbors as you make your decision regarding Mr. Sher's appeal to proceed with his plans for fundraisers in this quiet neighborhood. Si cer�ly,\ eith earson,`Supervisor Alameda County.51h District CC' Cathryn Kutsuris,Deputy Director of Planning,Contra Costa County via fax: 925-335-1222 1221 OAK STREET•SUI VF 536•OAKLAND,CALTEORNIA 94612•510272-6695•FAX 510271-5151 PRIn'1 F0 6Y UNION LABOR•LOCALS 342 k 676 II • KENSINGTON MUNICIPAL ADVISORY COUNCIL 1 H-1 2: 37 Reply to: 118 Windsor Ave. Kensington,CA 94708-1043 7 September 2001 Mr. Dennis M. Barry, AICP Contra Costa County Community Development Director 651 Pine Street, 4t`Floor North Wing Martinez, CA 94553-0095 RE: ZI019126 Dear Dennis: In the matter of the hearing on the Danny Scher property before the Board of Supervisors scheduled for September 11, 2001,just so there isn't a question on the part of the Supervisors as to the position of KMAC on this matter, I would appreciate having the materials they receive show that KMAC has not been able to take a position or make a recommendation to you on this matter because it has never formally come before us. Since the owner made no application of any kind to the Community Development Department, it has never been reviewed in the normal matter and now only appears before the Board as an appeal of an administrative decision. It is interesting to observe that since the work on the amphitheater was done as landscaping which met code requirements for exemptions in every respect, inspectors felt they had no grounds for requiring an application to the planning department. Yet the finished product was something other than the landscaping"sum of the parts."Are there lessons for the future we can learn from this?If you feel there are, we hope you will share them with us. Sincerely, Ja es . Carman Chairman cc: Supervisor Gioia, Diana Silver esq., Rena Rickles esq., Michael A. Silva • Danny Scher 500 Coventry Road •Kensington, CA 94707 510/526-6511 •Fax: 510/526-6522 May 6, 2001 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 evidence. 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 all 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, Lori 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, i L d Sun-Look Attachment • � Contra � Dennis M.Barry,AICP Coati nur lity Community Development Oirecl• Development Costa Department County County Administration Building 651 Pine Street 4th Floor, North Win Martinez, California 94553-0095 Phone: (925).335-1210 : Tri ctiur� April 23, 2001 Danny Schcr 500 Coventry Road Kensington, CA 94707 Subject: Amphitheatre and Stage at 500 Coventry Road ill Kensington, California Dear Mr. Scher: This letter is in response to your letter of April 3, 2001 ii-, \\hich you request the Department's COI1CLIrrCIICe that the amphitllcalre and st located at 500 Coventry Road in Kensington IS a "legal non-Conforming use." The pro c;ty is located in the R-6 Tonin'- District, Witten Is a single family resldentl:.11 Z0111i':= district. We have reviewed the documents which you SubinitteCl :;; SLlpport Of your belief that the stage zind ainphltllc::ttre Is a legal non-conformity- usc. :i1-,-0rclillg to the information submitted, the stave and amphitheatre have been in e.xi<:: since the 1920s, built for the use of the family which Owned and lived oil the The infollnatiOn submitted dOCu111ClltS 2I IILllllber Of"events" that were held at the : These events, however, would be those that would be considered accessory to the reside:ai:ll use of the property. There was no evidence SLIbnlltted t0 SLIppOrt the Contention the i iie property has been used for activities commercial In nature, Such as the 111lISICal Conk:: : which you have apparently been adver-IlSlllg. Fven if YOU provided dOCLllllelltat1011 ti::i[ the amphitheatre has been used for musical concerts/events, you would be required to sho%v how that use has been a continuous 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 Count\!Code includes seven findings which must be made in order to grant a land use permit. They are: Office Hours Monday - Friday: 8:00 a.m. - 5:00 p-m. Office Is closed the 1 st. 3rd f 511) Fridays of each 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; G) the use shall riot 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 comnllrnity in which you arc located, 'It is very unlikely that the Community Development Department could make the findings in order to recoinnlend approval of such a laud use peimit. If yoll d�c;dC to PUBLIC the filing of a land USC pCi-illit, you should be aware that the processln�: i1nic from application to the scheduling of a public hearing is approximately four The Department strongly urges you to cancel your planr:ec upcorllirlg event. "i.'he activity is a violation of the Countv Code. rhhis determination " fonvarded to the Code Enforcenlent Division of the Building Inspection Dep;lri n:at for their follow-up. Should you have any questions or would like to discu�� :-: > detcnnI ation in more detail, please call Aruna Bhat, a Current Planning Division \I.r:::_cr, at (925) 335-1219. County Code Section 14-4.002/004 provides that this dcc cion may be appealed to the Board of SUpervisors. Should you wish to file an appedll_ letter of appeal and the $125 filing fee must be received by the office of the Clerkof the Board by 5:00 pm on Monday, May 7, 2001. The appeal letter- must concisely state the facts of the case and the grounds for the appeal, including your special interest/Ili turv. 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 administrative decisions. Sincerely. Catherine Kutsuris Deputy Director C It/ted In 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 2 75 U003/007 PARCHERn NORRIS 2033 North Main Street,Suite 800 C/U]FORNa Or, PO Box 8035 Walnut 0 Walnut Creek,CA 94596-3728 Rlchm 925.930.6600 Ont 925.930.6620(Fax) May 29, 2001 EDwARo L SHAFFl cshaffer@archernorrls.cc. 925.952.S4i Contra Costa County Board of Supervisors c/o Clerk.of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Re: Apdncal of Staff Decisions Regarding 500 CONLCntry Road. .Kensingtort Honorable Supervisors: We represent Danny Scher, resident and owner of property located at 500 Coventry Road in Kensington, Contra Costa County. Mr. Scher preV)OUSIN nlcd an appeal of certain decisions 11 made by County staff. This letter is intended to elaborate oil ,--!I'd expand the matters subject to Mr. Schcr's appeal, as described below. We understan.' ill::t a hearing before the Board of Supervisors has been scheduled for July 17, 2001 at 1:00 r.nl. Summary 1. Status of Amphitheater and Stage. Question.-- Does the amphitheater and stage oil the property at 500 Coventry Road qualify as a legal structure on the site? Answer: These improvements should be accepted as accessory facilities, fully legal under current County regulations. At a minitntttn, there is ample evidence to show that the facilities date to the 1920's and so are legal nornconforrning uses. 2. legality of Fundraising Activities. Question: Are gatherings for political and chartable fundraising allowed without a conditional use permit? Answer: Constitutional protections of free speech 11o\\; such activities and require a Countywide ordinance rather than ad hoc decisions on individual permits. Archer Norris,A Professional taw Corporati- Txr:.l_S/203589-2 05/29/2001 14:27 FAX 92565975 • 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. Ile 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 zon-ine allo",VS this property to be used to host political and charity fundraising events. This inquiry was 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 or staff's intervention, the Institute had to refund 520,000 that already had been donated by people planning to attend. Status of Stage and Amphitheater Mr. Scher received a letter froth Catherine Kutsur s 01 the Community Development Department dated April 23`d (which by Ms. Kutsuris' on,Tt a.:rtission actually should have been dated April 27"i). Ms. Kutsuris did not respond directly to Ntr. Scher's request for a decision regarding the status of the stage and amphitheater. I-nsteac:. s:ike focused almost entirely on the types of uses that may be allowed. Thus it is riot clear whcu:cr staff has declared that the stage and amphitheater themselves are illegal improvements. Tills confusion is reinforced by a Noticc To Contpl\ :i=ted 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 pl:ttt!:�.- for the above-referenced property. if you wish to apply for a `land us_ permit' to hold such events, please gain the appropriate approvals prior to schcdulinz; of the events. ,I This notice does not differentiate between fundraising events and other gatherings such as weddings, birthday parties, etc. It suggests that all uses of the stage and arnpltitheater are prohibited without a pet-mit. 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 tninimtnn, the stage and amphitheater qualify as legal nonconforming improvements due to'their age and the evidence provided. However, we ask the Board of Supervisors to deternune that the stage and amphitheater are fully legal accessory structures on this R-6 residential property. The improvements should be free from any restrictions or cloud that may apply to being branded nonconforming. TXELS/203569-2 I 05/29/2001 14:27 FAX 925 2075 0005/007 Contra Costa County Board of Supervisors May 29, 2001 Page 3 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 he would be charging people to attend. Mr. Scher was ordered to cancel the fundraiser, and was told that he must obtain a [and use permit for any future events. Staff also declared that it was "very unlikely" that a pen-nit would be issued. Mr. Scher also received a Notice to Compl)'threatening him with legal action. and fines if he held "any" event on his property—without clan fying what gatherings might trigger such punishment. Both the United States and California Constitutions treat soliciting funds for charity or political purposes as protected speech. The United States Srrprenie Court overturned an attempt to license chanty solicitors, stating: "Charitable solicitati011,; involve a variety of speech interests . . . that arc within the protection of the First Amendment." Schaumburg v. Citizens for a Better Environment (1980) 444 U.S. 620, 632. Charitable solic.il . ion also is given more protection th�u3 m.crely commercial speech. See, Riley v. National Fey_ration for the Blind of North Carolina (1988) 487 U.S. 781. Politically-related events are protected by the First Amendment. See, New York Timcs Co. v. Sullivan (196=) -,-6 V.S. 254. The ruling in Schaumburg was repeated by Iii1l.mati v Biittoii (1980) 111 l:'1. App. M 810, in which the California court agreed that charitable solicitation is constin:rionally protected speech. California courts have recognized that the State Consuaition is even more protective of free speech rights than federal law. See, Gonzales v. Supc,-jo Court (1986) 180 Cal. App. 3d 1 1 16, 1122. The court in Hunter v. City of Whittier (19S9) 209 Cal. App. 3d 588, 596-97, ruled: City correctly points out that as a general rule of zonirt�, lav, broad general standards for conditional use permits have been upheld because it would be impossible and undesirable to devise specific standards to cover all conceivable variations of circumstances involving individual properties [citations]. The issue in those cases, however, was whether those standards were so impermissibly vague as to constitute an unlawful deleaation of legislative authority to an administrative body or official. The approach is not the same when the property owner has independent rights which constitute a limitation upon the powers of the legislative body itself to regul::te the matter. Thus, for example, when Zoning restrictions operate on the property owner's exercise of First Amend►nent rights, the court have required greater legislative specificity in order to avoid undue administrative discretion impinging on the owner's rights. [citations]. (emphasis added) TXEL.S!203599-2 05/29/2001 14:28 FAK 92 565975 0006/007 Contra Costa County Board of Supervisors May 29,2001 Page 4 In Rodriguez v. Solis (1991) 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 pennitting 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 least intrusive imposition on constitutional rights. See, Ward v. Rock Against Ractstrt (19,S9) 491 U.S. 781, Dillon v. Municipal Court (1971.) 4 Cal. 3d 860, City of Indio v. An���o (1983) 143 Cal. App. 3d 151. The court in City of Imperial Beach v. Escott (1981) 11 Cal. App. 3d 134, struck down an ordinance requiring a conditional use Permit to operate -T 2,6tili bookstore, because it gave public officials too much discretion and so violated the.Fir .. .knnendment. The ordinance required findings such as that the proposed use`will not b: �Iunental to the health, safety or general Nvelfa.re of persons residing=or working in the vicit i ., .- —which is very similar to Finding No. 1 required by.Contra Costa County in CountN°t_c,'e section 26-2.2008. The court rejected a pennitting scheme that created subjective standar:y open to interpretation and abase, rather than the precise"objective" rneasurernent demand,-::-% the First Amendment. This use perniit requirement was held to be"unconstitutionally va�i2.o,erbroad, and a prior restraint against . . . protected activity." Other California and fed,-ra'courts have rejected similar situations imposing open-ended use penrut requiremcnts on,-�cti\'ties 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 controls. In the process they have infringed on the First Amendment right to solicit charitable and political contributions. This is evidenced by staff's (1) wrongly characterizing the activity as"c.onunercial", (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 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 the county. Every fundraiser on residential property would have to be regulated: small-scale i Txsrsn03589-2 i 05/29/2001 14:28 PAX 925 2075 IA007/007 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 ant sure that each Supervisor is frequently invited to such fundraising events. Requiring a land use permit under current County Codes Nvould 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. Mr. Scher has held a variety of events on his property during the past 13 years, both family gatherings and fundraisers for political, religious and charitable causes -some with live entertainment and many more guests than intended for the Parkinson's Institute benefit-without once lrs\'ing the police called, a nuisance complaint filed, or a neighbor complaining directly. I'his situaiion has had a chilling effect on Mr. Scher`> use of his o'�m home. He had considered holding other fundraising events,but now canT;o' make any plans. The Board rnust uphold this appeal, declare the stage and amphitheater leg-: -,:cessory uses of the property, cancel stafCs threat of enforcement action, and direct that Nl1. rocher may host clia-rity and political fundraisers «vlthout intimidation or harassment. Sinccrck ARCHER NJRRIS Edward L- Shaffer ELS:Ia encl. cc: Members, Board of Supervisors Dennis Barry,Director of Community Development Catherine Kutsutis, Deputy Director Greg Stall.elbach, Building inspection Department Diane Silver, Deputy County Counsel Danny Scher 'rx1--1s1203589-2 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 ;fIways been the seating area for a stage, which he constructed shortly after the house 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 cerer conies). 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 was 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 I Jam.-I llO JG r r r , - r1 :Ap .�c .�� , -r�-- -^"`^--...�--Fv`.•""`."�'. _. .'. Danny Scher 500 Coventry Road • Kensington, CA 94707 5101526-6511 • 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 sea the record straight. History Joel Hildebrand built nay 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 divide,i to construct other houses,including one in which you may be living. Ultimately,he kept for himself and his fancily the piece of land where I presently live. This piece of land always included a natural amphitheatre. Shortly after constructing the house,he added 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,arttphithcatre,stage and beautifully designed John Hudson Thomas house were the reasons I chose to purchase the property in 1988. Use 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 youn :r1,other events held on the stag include nu- merous weddings(including Louise's and her 50t'weddrng a,niversary),Bris,Bat Mitzvah parties,recep- tions for film directors of the San Francisco Jzwlsh Film Fesuval,birthday parties and political fundraising events. It has also been used for large catered lunches,di-: and classical music performances ihat have been auctioned off by the Kensington Hilltop Elementai y Schml Oarden Party. Guests have included a past California State Governor,current U.S.Congressman. 'oval successful school board candidates, Granny Award Winners,and leaders of business. Nlar.v of these events have had over 250 people, with- out impacting my neighbors. My newly landscaped home and backyard, which are Within compliance of County standards,will be used primarily for my own personal enjoyment. Occasionally,it-111 be used to continue the established tradi- tion of nun-profit fundraisuig events. One such charity is t}x rirkinson's Institute for wham I will hold a benefit on May 20`4. Parking Shuttle transportation will be provided for my guests and ti^a:Wishing to park on the street will be told to park only in legal places. Parking has never been a problcr. for any event that has been held here, and i expect this tradition to continue,as well. 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 yours,and you will find that my events in the future will have as little impact on you as they have had in ih-e past. If anyone would like a personal tour of the landscaping I r1^doing,please give me a call;and I will gladly show you around. Regards, Danny Scher h. Graphics by Corey Scher.Age 10 ie lallnrJl� r'le)NOJi.Y'.!'Ji�(KI), 4,11 lr�.��c'.�/i!/rrru!/r.•l �f�l.� .::;//��rfr..r �i. /,/ � l i I r Mr.and Mrs.Granville LL[)Cecile request t1kc ple.aslll-C of J our Co11111.11ty y . JJ 1 at file nlarrlab c of lllelr(Iau, llti r f Jan(-Rohr 1 to ' INI,RU8e1-I ICn1-y I1;1!1A,-. lal On SUI) li-ty,file f\ce11f\--Pi•;Ilfll 1Vi11etcen huu(Ired and lurt•' fa'In at till-eC U(•I()Cl:111 llle:11�f!�11,•'`,11 I, + ive llllll(ire(I GU\'CII(l'\' l�!ti'•al - home of D� as I Mrs.<Joel[I.I�IIa�c'+raua� I3erl«a(��-,Gal►fo�11�.1 � : r .. -... �;� t a �_!Y� _ .:-r1`�`yltt�"r`4�+v 7»'fes �A�.: 3� '-n+' h .. ._f.�,:,�� � r 192Q'$ 0. l f.. 'tir��,5 #�S ,, •. .•.� �.:,� _ 1 � . i Maw-, �! t � _ �1 } �' 4 l 4 •,;�•,1�, ,'�it�� j~;�. � ' f�t��r �{y,•��• •�/ �/+. ,) ��f i 2� i � Y� *1�� t � • .�• ''��� J'.r t i'\� t.• .1 It• �1t~r-iI 't _��r `,•� •-�•. 1 '�•`� c t f ¢ . �:� �. J'` t� :o. 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R,�r�a - \1 err•#V tt t"`'Art .�- t v� -1} t,�.,# v `� �Y �+j _���*�cr�i't ,vt�..�`.�; � �� 1 � �� � - � •., �`++(; '' �, tea:'. � ;1 k� ' e :• ?•�: _ ter �:��•' `t•� .� �-�?��' � � •t ;r >�.. yes s.��" t { •�. • '� 1 Q-� e,�. �1 -= f �i���•••v i"•' �.�Y:��j.J �} rel+Ie. `�•'y� `.Y •,,Ysrt+,'C� ��,r+�"Jf' �•t • r r fir: .t �T�_ �r�.�r _ 1 �i.•' ;/„t •:;.rO.. � r.��i yl " ♦ � � (� `�,r..�t-aft. ��i,. •;• �1� �K:ti � •�r , , , � 1,,•r Y.�.r� �• MIS! }'I.�,(`~�` +• •'`• Ill � •� �•� •.•, 1, u b • h State: To confirm a cion-conforming status as required by Chapter 52-4 of the.Contra .Costa Coun Ordinance.Code, I hereby certify that the site listed below has been used for t,&.. �crdeslp7`es,eft Com matec�r � wed- contrnuously front Goan a �er`��� NC'S,AeriCP kki5. 6 •In Address ] 45761 . dVt9e6� y�zl Parcel No. 7 7 — To the best of my knowledge _ 2 L1 � ga� - Aj-,'�Lt A I cy VLA,,A-(1 C1. i ll(l.l'%' lliC?ItiC'(lge o ihi-< ';lie IJeC(!l.(Se ()r 111 C' f(?ll(;1;-;/i^ liC'.Cl.`/('.11(:C' l/1 (!/C'(1 (Il 5)C) 0 /ent- (?I _xr\(z [ C(JY'e � -- I` Wa.r Other- (explain) ... _�,r rt•t s �e_� u r\1. 1 t4d 1 r ----- - c� -,a - �s iYc 3 �- 1g87 +�d ��� i Ye oto declare under penalty of perjury that the foregoing is true and correct, and was executed on MVo,h- 3� _. at -yDeR��LC`� — —California. Print Name Signan/re ��o Qeov_e_� ens�non �Z-rid ? l Address Telephone SUBSCRIBE�ID SWORNTO BEFORE_)A�;:. ETHAN SMITH COMM. #12731 77-IIS STATEAIENI'SHAT I BE NOTARIZED NOTARY PUBLIC-CALIFOI THIS 1�Y4?F ALAMEDA COUNT) My COMM.Exp-Aug-6. OTARY PUB n JR� qh,k v t� i {-D f� L� qtr U/({{ a6 t 'F4 . O �I 4 . STATE OF . .�Q COUNTY OF..................................... State: To confirm a lion-conforming.status as required by Chapter 82-4 of the Contra Costa .County Ordinance Code, 1 hereby ceriify that the site listed below has been used for o��►r�t-P Ct�n[;RYt S bav� Gel-e ori bn key continuously from Al n'A- k Address Parcel No. f 7 f — l /�f S— ,� f--7 I --1 d t.2 —c/ - r r To the best of my knowledge ot� _ I hove knowledge of flus sit( becon(se oftlre. olloivin'� I +. Residence in rrc(r <rt SUS-2=13E0 A140 SW041N Tr�O,�BEFOkE ME Other (explain) — �,y;s-�3___-pA3 ��� � BY 1141L701V (CD- 1 declare under penalty of perjury that the foregoing is true an(3 correct, r s�it¢(ted on at /S California. rz�cl CA Print Namep Signau(re Address CA. 150L, Telephone LYNN CHRISTENSEN Commission#1239287 THIS STATEMENT SHALL BE NOTARIZED Notary Public—Californlc Yolo County ��.,,,,c„r.,.,r.,,, nes MyCcmm.ExpkBsNov19.2DC 1, State: To confirm a non-conforming.status as required by Chapter 52-4 of the Contra Costa County Ordinance Code, I hereby certify that the site listed below lois been used for 4 It 64A;?�(Corztinuouslyfrofil Address � d� ��i/F�,r;'�I^ �-�-----f�—�•�-�---r�--E Parcel No. T'71 ��— r To the best of my knowledge lxm� I have kilow ed c> of tl!1 ! X133 A'esideiwe In area at 5-00 T,rom A 9.2 ^_ To Other (explain) _ � y J I declare under petialty oj'l,erjim, that the foregoing is true aril correct, and was executed on SLyU La 1�Qe,1a Z G, C ZOO I � (A-I �� y C-ftkfE�f+tlfl. r� I �nin �c1me Sign lire dJf S7 2 s KM b czrK-A-v_e ' Address Telephone C_)Vc,agc9, J1.. 60&37 "OFFICIAL=ILLINOIS 7'HI.S STATI:RIENT.SHAT L B ��OTARIZE1) RUDOLPH A.NOTARY PUBLIC,STMY CO MMISSION EX I Kensington Improvement Club 103 Highland Blvd. Kensington,Ca. 94705 g 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 Intprovcntent Club("KIC"). As you may know, KIC is the oldest civic organization in our community and our tnembmilip includes over 700 households. Periodically the KIC Board takes a position on,natters affecting the public interest,suet,as the appeal of Mr. D. Scher front the decision of (lie Corr triunity Development.Departmcnt denying permission to Mr. Scher for use of an amphi.tlieatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct. and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road arca, indeed, almost all of Kensington is zoned as IZ4,. r:srdential property. The proposed use of the newly constructed antphilheatre for concerts appears to be commercial in cnCl-\. respect, notwitlistanding that the applicant may intend to turn net profits over to various charities. We understand that a.i\ertising,advance ticket sales,and service of alcoholic drinks to audiences of up to 250 people at a time are intended to N-tri at the proposed events. Such use, if approved, would set a precedent that would affect our entire conutunit". Along that area of Coventry there are no sidewalks, and in some place. n,k'rrrn can pass each other onl)'with great difficulty if there arc any cars parked on the road. Although Mr. Scher in..\ unlike ntauy representations regarding what he will try to do to anichorate(lie profoundly negative impact of a deluj'c of h1't'I: in such a small area, it is unlikcl)•such ciforis could avoid the iinposition of an extraordinar),burden upon -> Mr. Scher cannot effectively prohibit attendees front traveling to the site by car, nor can he guarantee their coir:t::t. MNether they have been drinking alcohol or not. If there is an emergency, the difficulty in getting emergency vehicles a,t.i personnel to the area could be substantially increased. The aniphi(licatre is located in a canyon, and even unaniplitied sound eche through and up the slope. That segment of Coventry Road(and its surrounds) is extremely quiet and beautiful. h9or,,'xer. the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested,the KIC Board believes that rite`"cry stone issues which 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 Conirnuniv, Development Department,and in so doing,preserve the integrity of the zoning process. This process has prole t d all of Kensington's residents including those of the dignified and beautiful Coventry Road area. Very truly yours, ,zt4l-? Linda G. Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Dir.,Community Development Department Catherine Kutsuris,Deputy Dir.,Community Development Department Aruna 13hat,Planning Division Manager,Community Development Department June 27, 2001 Supervisor John Gioia Contra Costa County - I" District 11780 San Pablo Ave. Ste. D EI 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 Bala; Kensington Municipal Advisory Council Chair, James Carmen Dear Supervisor Gioia, We are writing to you in regard to Mr. Danny Seller's recently constructed amphitheater and its planned use at Ills property at 500 Coventry Rd., Kensirlg-ton. CA Mr. Scher has filed an appeal with the Contra Costa County Board of Supervisors to overturn a ruling by the Contra Costa County Community Development Department which has denied him a Ie'—,al [loll-coll60rill]n use. permit to conduct concerts at th site. We have been informed by that department that ;i hearing on this appeal xvill be scheduled 11 .00 PNI on July 17, 2001 at the Board of Supervisor's electing. We, who are Kensington residents and neighbors of Mr. Sc�, ish you to know our position on this matter. Mr. Scher contends that he is entitled to a non-conforming use permit (grand-fathering) based on his claim that the concerts which he intends to hold at his ne%� 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 XN hose signatures appear below have lived in the inulledlate area of the amphitheater for more than 50 years and can attest to the long-terns 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 KutSltrls letter dated April 23, 2001 addressed to Mr Scher. In addition, the concerts planned by Mr. Scher raise the follo\%ing concerns: - increased levels of noise from amplified music and from 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 letter 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, }ie should be directed to submit a request for a land use permit so that it can be subjected to the normal review process. Therefore, we respectti►Ily ask you and the other members of the Contra Costa County Board of Super-"isors to reject Mr. Scher's appeal. Thank you for your consideration. Sincerely, SIGNATURES: ADDRESSES: v SSS caiE-J 7LY R�� KF�i�G-,W, C-, -141j r 627 June 26, 2001 lefler loSuIvrvisor.blur Gioia cominued SIGNATURES: ADDRESSES: L �zl Q J�LAUI_ek 00\3Q" Qct, L4(\�i Ck V 7 Yee -313 /3 Pc cv, o +r rA 7 3 W4Ent -Z4 v t Jude 26, 2001 letter to Supervisor.John Gioia continued SIGNATURES: ADDRESSES: U � d 10 CAV� k6A �A l L. -� ke fi:5 I _ l << t 4, Lir CT lcc S /f es dLa4# V S I)ArOA> Cf- 0 June 26. 2001 lefier lo.Supervisor.lohtt Gioia conlillued SIGNATURES-. ADDRESSES: c,4o,7 e7 IVA 4t -AS 7101 JR t2_ 0 o rj 0 . June 4th, 2001 Ms. Aruna Bhat, Principal Planner Community Development Depart�efit jOUnk� CogaE,o2igy 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 Board 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. Nve 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 neighborhood that use of the "arnpltitheater" 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 systern, and intrusive lighting from tree-and ground-based lighting systems), and(6)rights of residents to the quiet enjoyment of their homes and property. Thank you for your consideration. Sincerely yours, Gerge and Gloria Kwei 10 Kenilworth Court Kensington, CA 94707 (510) 559-3777 kwei ltIllnU ov Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue. El Cerrito, CA 94530 Director Dennis Bary, Community Development Dept.,Contra Costa County Dep. Director Catherine Kutsuris, Community Development Dept., Contra Costa County Mr. Jarnes Carmen, Chair, Kensington Municipal Ad%isorY Council Mr. RobertGiusti, 112 Willow Lane, Kensington, CA 94707 June 9,2001 Ms.Aruna Bhat, Division Manager Off `I!' r ^ , Community Development Department,Contra Costa County 651 Pine Street,4"'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 fund-raising 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. Scher's property at 500 Coventry Road is less than 500 feet away. The OMers 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 Scher's proposed commercial use of the.property and we will attend the July 171t' hearing in order to lend our support to the denial of Mr. Scher's appeal. Respectfully yours, William R. Buehdng and rtrude C. Buehring One Marchant Court Kensington, CA 94707 r� Supervisor John Gioia 100 37th St. Room 270 Richmond, CA 94805 -1 Dear Supervisor Gioia, -- lD 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 ab night. Now I am appalled to hear that DalillV Scher, formerly of Bill Grahaw presents , wants to subject Kensington residents to outdoor, fully amplified concerts at 500 Coventry Road. This is clearly an invasion of privacy and breaks all residential zoning laws., I conllrtend the Supervisors for tur!1il,g him down the first time arounoand hope that the lega: appeal battle which is apparently shaping up will Ilot change your minds. We, in Kensington, say "NO LOUD CC'iMERCIAL AND BENEFIT CONCERTS IN OUR NEIGHBORHOOD" . I cannot imagine the traffic also parking problemsit would involve . You are our governmental leaders, as we have no city council . The County has always been fair all- abided by the zoning in' Ke sington. Please do it again. CoMially, Joan M. Haber 86 Norwood Ave. Kensington, 94707 510-526-7205 cc Dennis B(I-rry Community Development Director County Administrator F'il 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`t' Floor, North Wing Martinez, CA 94553-0095 Dear Ms. 13hat; 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 N- -tr. 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. ,Si cerely, ' J an K. Groom Cc: Supervisor John Gioia June 4`h, 2001 Ms. Aruna 9cipal Planner Community Development Department, Contra Costa County 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-confonnin-g use"do not reflect the actual historic use. We strongly support the position that Ms. Kutsuns his taken u1 denying Mr. Scher's request. We now understand that Mr. Scher has formally appealed tlris 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 di: issues of (1)public events in a residential neighborhood, (2) changes in the nature of the neighborhood 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 hal arils, access to and from neighboring resident's homes, noise frorn an amplified outdoor sound system, and intrusive lighting from tree- and ground-based lighting systems), and(6)rihts of residents to the quiet enjoyment of their homes and property. Thank you for your consideration. Sincerely yours, George and Gloria Kwci 10 Kenilworth Court Kensington, CA 94707 (51.0) 559-3777 kwei 1 011nl.gov Cc: Supervisor John Gioia, District I, 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`h, 2001 0I Jtf`I -S P!1 3= 02 Ms. Aruna BhPlanner at, Principal Community Development Department,Contra Costa County 651 Pine Street,4a'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 propem,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 noir-conforming use"do not reflect the actual historic use. We strongly support the position that Ms. Kutsuris has taken in denying Mr. Seller's request. We now understand that Mr. Scher has formally appealed this derision and that there will be a hearing on July 17`' 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 nei,lhb,�rhood that use of the "amphitheater" will create, (3) reduction of property values W,t;:: neighborhood, (4) concerns about the safety and security of the neighborhood, (5) logistic.!problems that will arise(triflic congestion, parking, liquor sales, sanitation facilities, fire hazaEdS. access to and from neighboring resident's homes, noise front all amplified _,und system, and intrusive lighting from tree- and ground-based lighting systems), and(6)ri-hts of residents to the quiet enjoyment of their horlles and property. "Ilrank you 1'or your consideration. Sincerely yours, G ge and Gloria 10 Kenilworth Court Kensington, CA 94707 (510) 559-3777 kwei 1a llni.gov 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. Jaynes Carmen, Chair, Kensington Municipal Advisor\'Council Mr. Robert Giusti, 112 Willow Lane, Kensington,CA 94707 554 COVENTRY ROAD/ BERKELEY, CALIFORNIA 94707 0JUi ft�Paht, Division Manager,Community Development Dept., Contra Costa ,y. Re: Sher Ampitheater, 500 Covntry Rd, Kensington Dear Nis. 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 with use of microphone, amplification or bright lights. The area was just a sloped woodland, at the bottolrr of Which Joel had built a crude platform where his daughter Louise danced and %vas married back in the late 20's _ and 30's. "I-'here were no scats. I cannot imagine how Sher could invade our quiet 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,con niercialism and depreciation of property values. We are depending on you,our County Authorities. to prevent tills encroachment and appreciate your help in this upsetting and painful mvttcr- Sincerely, f // A- ?-an Kukulan Reilly 114� Ale th / ��.. Lk TO Ara - Date: Sat, 05 May 2001 14:41:32 -0700 To: ccc_cdd@yahoo.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 retarding Dan Scher's desire to hold benefit concerts at his Coventry Road. Kensington residence. My husband and I were apparently not available \\'hen 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 honle 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 rernember- 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 anvon: other than Louise Klein who would concur with his view that this prop:rte has been used to hold events of the type and scale that he plans to put oil. He is selling tickets, xvill sell alcohol, will amplify the sound and a l,loubtedly will fill the newhborhood to overflow with cars. I would like to be informed if there are any future hearing'-s. Ct". regarding this situation. We are both definitely opposed to mphitheater, and feel that it does riot fit the definition required for tloncontornling use. J Folger-Brown Timothy P. Hoyer 555 Coventry Road Kensington,CA 94707 510.526.8794 Do You Yahoo!? Yahoo! Auctions $2 Million Sweepstakes - Got something to sell? April 20a', 2001 Catherine Kutsuris, Deputy Director U/�� Community Development Department,Contra Costa County 651 Pine Street, 4`t'Floor,North Wing �9/ Martinez, CA 94553-0095 'o/y 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 secttnty 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°i 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 150' from abroad to see if we can work out any of the differences. However we would like for you to know prior to the first planned event that, if the talks do riot Nvork out, we will be making a request for a public hearing to discuss our vie%i?s on the granting of a permit. This way, informed decisions can be made by the CountN as to whether such a variance should be granted for large public events in a Residential area. Sincerely yours, VGe ,,Id Gloria itwei 10 Kenilworth Court 144Lrl .r,ce a C_.ex� Kensington,CA 94707 (510) 559-3777 (home) (925) 422-9311 (work for George) (925) 422-9380 (work for Gloria) kwell.@Ilnl.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 tip across the court from 500 Coventry at 2 Kenilworth Court from 1951 to 1970;: 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 a 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, Linnea Due 2 Kenilworth Court Kensington, CA 94707 (510) 525-8981 Contra _ Dennis M. Barry, AICP Community Community Development Director - Development � � p Costa Department County County Administration Building 651 Pine Street 4th Floor, North Wing Martinez,California 94553-0095 "1 ;- mt, o 7•,`�-CT`j 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 201h 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, Dennis M. Barry, AIC Community DeveL ent Director DMB:gms dmb5/Reilly—amphitheater Itr c: Catherine Kutsuris, Community Development Department Aruna Bhat,w/enclosure Office Hours Monday - Friday:8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd & 5th Fridays of each month 554 COVENTRY ROAD BERKELEY, CALIFORNIA 94707 0 L• OJ �i� •Z/,,.foo � 57 1G741- ea- . • e1Z �i1-�L Q?��d�� U - "Toni(J To: abhat@cd.co.contra-costa.ca.us Folger-Brown)" <thoyer@ 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: tlioycr.@uclirik4 .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 H'ol.ger-Brown) " <tlioyer..@ucli_n};4 .be_- eley.edu> >Subject: Non--conforming use permit for Scher's C,-,-entry ltd. property >Cc: ttioyor@uc:liiik4 .berk(-I.ey.edu >Catherine Kutsuris, >I am responding Lo the last of: several news pate._ articles regarding Dan >Scher's desire to hold benefit concerts aL his &.:•.-entry Road, Kensington >res.i.dence. My husband and I were apparently no: :.vailable when the >peti-tion was being signed, but since this amphiT_'.emter is located directly >ac.ross the street from our residence, we support Counties decision to >deny Scher's request to hold events. My parent_ D! ilt my home in 1937 and >I have lived in it most of my life (starting in 1"=2) • My parents are >st.i_ll Kensington residents, at another location-, and none of us remember >any events that the Iiildebrant's held as being dilsrupLive 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 r.esidenLs that have lived in ttiis 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 • 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 To: Board of Supervisors From: Silvano B. Marchesi, County Counsel By: Diana J. Silver, Deputy County Counsel Re: Item D.6, September 11, 2001 Board Agenda: Appeal of Daniel Scher re stage and amphitheatre, 500 Coventry Road, Kensington 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. 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 of May 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 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 § 84-4.404, 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. XI, §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 Ca1.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 Cal.4`h 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) (9`h 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 1:UOAN N\Diana\kensamphi theatre.wpd / s4-2.002 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 in 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). 84-2.002 1978 zoning map adopted. 84-2.003 District amendments. 84-2.006 Accessory building variances. 84-2.004 Districts established. Variance permits to modify the area coverage and 84-2.006 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 planning 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 Sections. hereof by this reference and is hereby adopted as part of Article 84-4.2.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- 844.402 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 section have been adopted and published Article 844.6.Lots in the regular manner required for ordinances,but have not been 84.4.602 Let—Area. printed with this code.They are available for public inspection at the county Planning department 84-4.604 Lot—Width. 844.606 Lot—Depth. 842.003 District amendments. (a) Zoning Map Updated.The planning department Article 844.8.Building Height shall maintain a copy of the 1978 Zoning Map of Contra .84-4-802 Building 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. 84-4.1004 Yard--Setback. (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 three hundred or Article 844.12.Off-street Parking one thousand-foot scale California Coordinate System 84-4.1202 Off-street Parking requirements' maps referred to in Section 842.002.(Ords.78-93). Article 844.14.Land Use and Variance Permits 84-4.1402 Land use and variance permit— Granting. 439 84-4.202 X _ ( Wj �W Article 84-4.2.General such as golf,tennis,and swimming clubs,and veterans' and fraternal organizations; 84-4.202 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 46110 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 structures 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 (F) 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 (n D-1 district—no density restriction, or members of the licensee's family or persons employed (n F-1 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 less elevations 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 ollowing uses are allowable on the issuance of a except exterior light placed upon the single-family land use permit: residence. (Ords 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):Ords. 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 R 844.602 Cm 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 844.606 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 84-4.14.Land Use and Variance Permits 8142(e):Ords. 1269, 1179). 844.1402 Land use and variance permit— Article ermitArticle 844.8.Building Height Granting. Land use permits for the special uses enumerated in 844.802 Building height—Ma3tmum. Section 844.404, and variance permits to modify the No single-family dwelling or other structure permitted provisions in 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 Me .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 844.1004 Yard—Setback. 84-6.402 Permitted. 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 A 'cle 84 .6.Lots feet. (Ord. 1569: prior code § 8142(h): Ords. 1269, 84-6.602 Lot—Ar 1179). 84-6.604 Lot—Wid 84-6.606 Lot—Depth. 844.1006 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 aximum. accessory structures of at least three feet. (Ord. 1569: prior code§8142(i):Ords. 1269, 1179). 441 26-2.2008 subject property of rights enjoyed by other properties in code shall terminate as provided in Sections 26-2.2014 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§2206.20: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§2204.50: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 26-2.2022-26-2.2030.(Ord.1975:prior licenses issued pursuant to this chapter or Title 8 of this code§2207:Ord.917). 45 ��'��- • 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-I heavy industrial use. w 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 84-4 ff.,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 82-8.004 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—Rebuildingis 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 interrupted 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 ° 82-8.006 Extension—Enlargement. scheduled, the notice provisions of Section 26-2.2004 existing 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 • OpREq. 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 Cu 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). • OpReq. 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., v. 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`h 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 Dep't ofAgric. 14 F.3d 429,439 (9`h 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." (Edenfield 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. • Opn40eq. 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,1.) 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 5We 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. • opt*eq. 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 "It 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 advertising for 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.). . • OpReq. 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, 51.1). 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' 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`h i 263, 275-276). OpnItq. 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.' 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.9 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. 9The 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). OpReq. 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`h 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`' 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 10We 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. 4`' 725,747). • opr*eq. 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)." 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. H ADSILV\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). MIRIAM AWLEY Berkeley City Council RECEIVED District 5 Jul 1 0 2001 CLERK BOARD OF SJPERVISORS July 6, 2001 CONTRA COSTA CO. Board of Supervisors Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553 Dear Supervisors: Several of my Berkeley constituents live on the Berkeley-Kensington border just across the canyon from 500 Coventry Road in Kensington, where Mr. Danny Sher proposes to use his outdoor amphitheater for fundraising events. These neighbors of Mr. Sher's are concerned about his plans to hold fundraising events in the amphitheater on his property, and they have asked that I request your consideration for the issues they have raised. The potential noise, lighting, and traffic and parking impacts of the events could have important impacts on the people who live in this neighborhood of single-family homes. Moreover, their unease about the proposals is increased by Mr. Sher's apparent unwillingness to agree to any parameters for the events such as their frequency, hours of operation, or the number of people who will attend. I am asking that you consider the concerns of the Berkeley neighbors as you make your decision about allowing Mr. Sher to proceed with his plans for fundraisers in this quiet neighborhood. Z k yoir. Miriam Hawley CDL) 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981-7150 Fax: 510.981-7155 m hawley@c i.berkeley.ca.us 1 - - - - -CONSIDER-WITH-! Ic 16 Eldridge Ct. Kensington, CA 94707 September 6, 2001 Contra Costa County Board of Supervisors RECEs�E® 651 Pine Street,Room 106 SEP 10 2001 Martinez, CA 94553 CLERK BOARD.OF SUPERVISORNTRA COSTA CO. S Dear Contra Costa Board of Supervisors: CO I'm writing about the September 11, 2001 meeting of the board at which Danny Scher's appeal of the board's decision to deny him the use of his home for fundraising events will be discussed. I am a resident of Eldridge Court, a private road close to Mr. Scher's home. I strongly support the prior decision to deny permission for this use, and I urge the board to not overturn it. While I support Mr. Scher's goal of fundraising for worthy causes, I do not think the financial gain to these causes from the fundraising will outweigh the disruption to our neighborhood. For example, Mr. Scher frequently cites the lost revenue of$20,000 for Parkinson's from his recent canceled event. I am a chemist at a pharmaceutical company, and I know what kind of money is needed for research. Twenty thousand dollars is less than a drop in the bucket for a cause like eradicating Parkinson's. This would not even buy one medium- sized piece of laboratory equipment in a single biological laboratory. A similai argument could be made for many of the other causes advocated by Mr. Scher. To make a noticeable impact, one should multiply these figures by at least ten, and Mr. Scher should use his considerable talents to organize larger events in more appropriate venues. What we as neighbors can look forward to,if his plan is approved, is a lot of congestion and noise during his events, and no noticeable benefit, either to ourselves or to the causes the events are intended to support. Sincerely, Mark Wegner cc: Supervisor John M. Gioia UV/1V/V1 V8:41 "[»IU D40 V14D tQWBCQ vleKwalw LpJVUl/VU/. . 3 EDWARD F. DIEKMANN CONSIDER WITH......r... Consulting Structural Engineer 44 Kingston Road Kensington, California 94707 Phone: 510-528-9247 Fax: 510.528-9125 To: Catherine Katsuris, Deputy Director Community Development Department Contra Costa County Fax: 925-335-1222 From. Ed Diekmann Date: September 10, 2001 Project: 500 Coventry Road - Kensington iii*!*#iii!/i i i i i/i i i i i•f i i#i i i a###i i!!###i i i i!*##iii!!#i i i i i#iii!• Material transmitted; Opposition Letter Total number of pages, including transmittal page: 2 Comments: Dear Ms. Katsuris: Attached you will find our letter in opposition to the proposed amphitheater. Please give it your consideration and present it to the Board of Supervisors which we understand is meeting tomorrow, September 10th at 1:00 pm. Thank you. Mickie Diekmann ub/lu/ul Ud:47 pblU 5Z6 alLb hawara viexmann tr. UUz/UUc 1 • • EDWARD F. DIEKMANN 44 Kingston Road Kensington, CA 94707 September 10, 2001 Supervisor John Gioia 100 - 37th Street, Room 270 Richmond, CA 94805 Re: Stage and Amphitheater 500 Coventry Road Kensington, California Dear Supervisor Gioia: We understand that the proposal by Mr. Danny Scher to have live concerts on a stage in an amphitheater at his residence at 500 Coventry Road was denied by the Community Development Department and an appeal is pending before the Board of Supervisors. The residence at 500 Coventry is in a residential area in which concerts involving periodically the attendance of several hundred people would be totally inappropriate. Quite apart from the problems of amplified music, supplying sanitation facilities and policing the attendance — such concerts are notorious for attracting significant "gate crashers" — there is an over-riding concern about parking and the attendant safety risks. Kensington is known for its narrow and sometimes winding streets and Coventry Road is among the most narrow and is the most winding street in Kensington. A drive along Coventry day or night will reveal a dearth of parking spaces for even the residents. There are no spare parking spaces and it is absurd to contemplate permitting concert attendees to come onto the street and the surrounding neighborhood. We urge you to vote to deny the appeal. Very truly yours, Mr. and Mrs. Edward F. Diekmann cc: Catherine Katsuris, Deputy Director Community Development Department ACLU of Norttern California ALU BARK Chapter • Berkeley -Albany - Richmond - Kensington American Civil Liberties Union PO Box 11141, Berkeley CA 94712-2141 • 510-464-1330 August 31, 2001 REGEIVEn Contra Costa County Board of Supervisors SEP 4 2001 coo Clerk of the Board CLERK BOARD OF SUP: 651 Pine Street, Room 106 CONTRA COSTA G-,. .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 recom.mendaiion and the decision are an HIfringenrent of free speech rights protected by the. Constituiions of the United.States and the State of California. We are(articularly concerned with the bread language in the recommendation ;t:,ti.rg that "furrdraisings" and "fundraising activities" Maytaut be:held on properly zoned for strictly residential use. All citizens' rights to _freedom of speech and freedom to a-:soc.iate with others would be seriously compromised if the Board feuds t!iat Mr. Scher cannot host.f indra.isir.,g 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 princip,e 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 The Board of Supervisors Contra John Sweeten Clerk of the Board County Administration Building Costa and aloi 651 Pine Street,Room 106 ` County 335-1st 0 Martinez,California 94553-1293 County (925)335-1900 John Gioia,1st District Gayle B.Uilkema,2nd District Donna Gerber,3rd District ,- Mark DeSaulnier,4th District Federal Glover,5th District xi '�' •' ' �COUN September 11., 2001 Mr. Danny Scher 500 Coventry Road Kensington CA 94707 Dear Mr. Scher, Pursuant to Section 14-4.006 of the County Ordinance Code, notice is given that on September 11, 2001, the Board of Supervisors continued your hearing to September 25, 2001, at 2:00 p.m., at 651 Pine Street, Room 107, (the Board's Chambers) Martinez, Califon-iia. If you have any further questions, please feel free to call our office. Very truly yours. JOHN SWEETEN, Clerk of the Board of Supervisors and County Administrator Danielle Kelly, Deputy Cle cc: County Counsel County Administrator Community Development i BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA AFFIDAVIT OF MAILING IN THE MATTER OF ) ADMINISTRATIVE APPEAL ) RE: Amphitheatre and Stage ) 500 Coventry Road ) Kensington CA 94707 ) Danny Scher ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been, a citizen of the United States, over age 18; and that today I deposited with Contra Costa County Central Service for mailing in the United States Postal Service in Martinez, California, first class postage fully prepaid, a copy of the hearing notice in the above matter to the following: Gregory Look / Lori Sun-Look 1734 Lemonwood Drive Concord Ca 94519 James M.Carman 118 Windsor Avenue Kensington CA 94708-1043 Jean Kukulan Reilly 554 Coventry Road Berkeley CA 94707 Robert Guisti 112 Willow Lane Kensington CA 94707 Joan K.Groon 464 Coventry Road Kensington Ca 94707 Joan M.Haber / 86 Norwood Avenue Kensington Ca 94707 Edward Shaffer / Archer Norris ✓ 2033 N. Main Street,Suite 800 Walnut Creek CA 94596 J. Folger-Brown&Timothy Hoyer 555 Coventry Road Kensington Ca 94707 Linnea Due 2 Kenilworth Ct. Kensington CA 94707 George&Gloria Kwei 10 Kenilworth Court Kensington Ca 94707 1 declare under penalty of perjury that the foregoing is true and correct., Martinez, CA. Date: September 13, 2001 Deputy Clerk, Danielle K ti he�Board of SupervkrsContra • John Sweeten Clerk of the Board and County Administration Building Costa County Administrator 651 Pine Street,Room 106 I ' (925)335-1900 Martinez,California 94553-1293 County John Gioia, 1 st District Gayle B.Uilkema,2nd District Donna Gerber,3rd District E ' Mark DeSaulnier,4th District n• .s, Federal Glover,5th District rqcoui+� September 11, 2001 Mr. Danny Scher 500 Coventry Road Kensington CA 94707 Dear Mr. Scher, Pursuant to Section 14-4.006 of the County Ordinance Code, notice is given that on September 11., 2001, the Board of Supervisors continued your hearing to September 25, 2001, at 2:00 p.m., at 651 Pine Street, Room 107, (the Board's Chambers) Martinez, California . If you have any further questions, please feel free to call our office. Very truly yours, JOHN SWEETEN, Clerk of the Board of Supervisors and County Administrator By: 6 u-,.Q& .L Danielle Kelly, Deputy Cle cc: County Counsel County Administrator Community Development • D -3) TO: BOARD OF SUPERVISORS { Contra FROM: DENNIS M. BARRY, AICP >;� 4a Costa COMMUNITY DEVELOPMENT DIRECTOR ``�' County ,, �f (fUN 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 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 Bhat 335-1219 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 f� Michael Angelo Silva, Property Conservation Division, BID BY` I' V tuE DEPUTY September 11, 2001 Board of Supervisors File #Z1019126 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. TO: BOARD OF SUPERVISORS ;.; Contra FROM: DENNIS M. BARRY, AICP ,. Costa COMMUNITY DEVELOPMENT DIRECTOR County ['(11:NS'l DATE: JULY 17, 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 #ZI019126. 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 COMMITT E APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Jul y 17, ?.nn1 APPROVED AS RECOMMENDED OTHER_.XX The Board continued this matter to September 11, 2001 at 1 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 Bhat 335-1219 ATTESTED July 17., 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 -)� — P Michael Angelo Silva, Property Conservation Division, BID BY � , DEPUTY July 17, 2001 Board of Supervisors File #Z1019126 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 July 17, 2001 Board of Supervisors File#Z1019126 Page 3 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 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). July 17, 2001 Board of Supervisors File #Z1019126 Page 4 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 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. Danny Scher 500 Coventry Road •Kensington, CA 94707 510/526-6511 •Fax: 510/526-6522 May 6, 2001 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 evidence. 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 all 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, Lori 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. Sincere, Ld Sun-'Look Attachment Corry sur ity Contra � �/ Dennis M. Barry,AICP � � Community Development Director Development Department Costa p County County Administration Building 651 Pine Street '. 4th Floor, North Win y Martinez, California 94553-0095 �a 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 in -% hich you request the Department's concurrence that the amphitheatre and stage located at 500 Coventry Road in Kensington is a "legal non-conforming use." The property is located in the R-6 Zoning District, which is a single family residential zoning district. We have reviewed the documents which you submitted in SLipport of your belief that the stage and amphitheatre is a legal non-conforming use. According to the information submitted, the stage and amphitheatre have been in existence since the 1920s, built for the use of the family which owned and lived on the property. The information submitted clocuments a number of"events" that were held at the site. These events, however, would be those that would be considered accessory to the residential use of the property. There was no evidence submitted to support the contention that the property has been used for activities commercial in nature, such as the musical concert which you have apparently been advertising. Even if you provided documentation that the amphitheatre has been used for musical concerts/events, you would be required to show how that use has been a continuous 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: y Office Hours Monday - Friday: 8:00 a-m. - 5:00 p.m- Office is closed the 1 st, 3rd & 5th Fridays of each 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 shall 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 your 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 of such a land use permit. If you decide to pursue the filing of a land use permit, you should be aware that the processing time from application to the scheduling of a public hearing is approximately four months. The Department strongly urges you to cancel your planned upcoming event. The activity is a violation of the County Code. This determination will be forwarded to the Code Enforcement Division of the Building Inspection Department for their follow-up. Should you have any questions or would like to discuss this determination in more detail, please call Aruna Bhat, a Current Planning Division Manager, at (925) 335-1219. County Code Section 14-4.002/004 provides that this decision may be appealed to the Board of Supervisors. Should you wish to file an appeal, the 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 state the facts of the case and the grounds for the appeal, including your special interest/injury. 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 administrative decisions. Sincerely, I� Catherine Kutsuris Deputy Director. CK/bdm 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 1003/007 fllfARCHE R ■ NORRIS 2033 North Main Street,Suite 800 CALIFORNIA OFFICE PO Box 8035 Walnut Creel Walnut Creek,CA 94596-3728 Rlchmon( 925.930.6600 Ontari( 925.930.6620(Fax) May 29, 2001 EDWARD L SHAFFER eshaffer@prchernorris.com 925.952.S409 Contra Costa County Board of Supervisors c/o Clerk of the Board 651. Pine Street, Rooin 106 Martinez, CA 94553 Re: Appeal of Staff Decisions Regarding 500 Coventry 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 previously filed an appeal of certain decisions made by County staff. This letter is intended to elaborate on and expand the matters subject to Mr. Scher's appeal, as described below. We understand that a hearing before the Board of Supervisors has been scheduled for July 17, 2001 at 1:00 p.m. Summary I. Status of Amphitheater and Stage. Question: Does the amphitheater and stage on the property at 500 Coventry Road qualify as a legal structure on the site? Answer: These improvements should be accepted as accessory facilities, fully legal under current County regulations. At a minimum, there is ample evidence to show that the facilities date to the 1920's and so are legal nonconforming uses. 2. Legality of Fundraising Activities. Question: Are gatherings for political and charitable fundraising allowed without a conditional use permit? Answer: Constitutional protections of free speech allow such activities and require a Countywide ordinance rather than ad hoc decisions on individual. permits. Archer Noris,A Professional Law Corporation TXELS/203589-2 05/29/2001 14:27 FAX 925 2565975 1004/007 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 zoning allows this property to be used to host political. and charity fundraising events. This inquiry was 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 $20,000 that already had been donated by people planning to attend. Status of Stage and Amphitheater Mr. Scher received a letter from Catherine Kutsuris of the Community Development Department dated April 23rd (which by Ms. K.utsuris' own admission actually should have been dated April 27`h). Ms. Kutsuris did not respond directly to Air. Scher's request for a decision regarding the status of the stage and amphitheater. Instead, site focused almost entirely on the types of uses that may be allowed. Thus it is not clear whether staff has declared that the stage and amphitheater themselves are illegal improvements. This confusion is reinforced by a Notice To Comply dated May 3, 2001 from Greg Staffelbach of the Building Inspection Department. The order for"Corrective Action" states: Cancel any and all events that are planned for the above-referenced property. if you wish to apply for a `land use permit' 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 the stage and amplutheater are prohibited without a permit. 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 27`h 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 nonconforming improvements due to their age.and the evidence provided. However,we ask the Board of Supervisors to determine that the stage and amphitheater are fully legal accessory structures on this R-6 residential property. The improvements should be &ee from any restrictions or cloud that may apply to being branded nonconforming. TXELS/203589-2 05/29/2001 14:27 FAX 925 2565975 005/007 Contra Costa County Board of Supervisors May 29, 2001 Page 3 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 he would be charging people to attend. 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 Comply threatening him with legal action and fines if he held"any" event on his property—without clarifying what gatherings might trigger such punishment. Both the United States and California Constitutions treat soliciting funds for chanty or political purposes as protected speech. The United States Supreme 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 Amendment." Schaumburg v. Citizens for a Better Environment. (1980) 444 U.S. 620, 632. Charitable solicitation also is given more protection than merely commercial speech. See, Riley v. Irrational Federation for the Blind of North Carolina(1988) 487 U.S. 781. Politically-related events also are protected by the First Amendment. See, New York Times Co. v. Sullivan(1964) 3-16 U.S. 254. The ruling in Schaumburg was repeated by Hillman v Britton (1980) 111 Cal. App. 3d 810, in which the California court agreed that charitable solicitation is constitutionally protected speech. California courts have recognized that the State Constitution 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 Whittier (1989) 209 Cal. App. 3d 588, 596-97, ruled: 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 undesirable to devise specific standards to cover all conceivable variations of circumstances involving individual properties [citations]. The issue in those cases,however,was whether those standards were so impermissibly vague as to constitute an unlawful delegation of legislative authority to an administrative body or official. The approach is not the same when the property owner has independent rights which constitute a limitation upon the powers of the 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 impinging on the owner's rights. [citations]. (emphasis added) TXELS/203599-2 05/29/2001 14:28 FAX 925 2565975 X1006/007 Contra Costa County Board of Supervisors May 29, 2001. Page 4 In Rodriguez v. Solis (199 1) 1 Cal. App. 4th 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 least intrusive imposition on constitutional rights. See, Wardy. Rock Against Racism (1989) 491 U.S. 781, Dillon v. Municipal Court (1971) 4 Cal. 3d 860, City of Indio v. Arrow X1983) 143 Cal. App. 3d 151. The court in City of Imperial Beach v. Escott (1981) 115 Cal. App. 3d 134, struck down an ordinance requiring a conditional use permit to operate an adult bookstore, because it gave public officials too much discretion and so violated the First Akmendmcnt. The ordinance required findings such as that the proposed use"will not be detrimental to the health, safety or general welfare of persons residing or working in the vicinity . —which is very similar to Finding No. 1 required by Contra Costa County in County Code section 26-2.2008. The court rejected a permitting scheme that created subjective standards open to interpretation and abuse, rather than the precise"objective"measurement demanded by the First Amendment. This use permit requirement was held to be"unconstitutionally vague. overbroad, and a prior restraint against . . . protected activity." Other California and federal courts have rejected similar situations imposing open-ended use pen-nit requirements on activities 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 controls. In the process they have inhinged on the First Amendment right to solicit charitable and 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 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 the county. Every fundraiser on residential property would have to be regulated: small-scale "rxEI'1203589-2 05/29/2001 14:28 FAX 925 2565975 Z007/007 Contra Costa County Board of Supervisors May 29, 2001 Pagc 5 benefits for local schools and youth sport teams; meet-the-candidate parties; and galas held to support charities. 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. Mr. Scher has held a variety of events on his property during the past 13 years, both family gatherings and fundraisers for political, religious and charitable causes—some with live entertainment and many more guests than intended for the Parkinson's Institute benefit—without once having the police called, a nuisance complaint filed, or a neighbor complaining directly. This situation has had a chilling effect on Mr. Scher's use 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 legal accessory uses of the property, cancel staffs threat of enforcement action, and direct that Mr. Scher may host charity and political fundraisers without intimidation or harassment. Sincerely, ARCHER MORRIS Edward L. Shaffer ELS:la encl. 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 Danny Scher T)ELS/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 always been the seating area for a stage, which he constructed shortly after the house was 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 was 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 ..n.� - � - - ..�r ...� - .� - .. _..-_ -�� -.. '.- - �f• n lam. .....-_^.-r--f!M�','^^'!n�.. .. .. Danny Scher 500 Coventry Road - Kensington, CA 94707 5101526-6511 • 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 replae.e 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 fartaily the piece of land where I presently live. This piece of land always included a natural amphitheatre. 1 Shortly after constructing the house,he added 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 ruine at 550 Coventry Road. The grounds,amphitheatre,stage and beautifully designed John Hudson Thomas house were the reasons 1 chose to purchase the property in 1988. Use Since the 1920's,the stage and aruphWieatre have been used for large private parties and fundraising ac- tivities. Besides Louise's datice performances as a young grirl,other events held on the stag include nu- merous weddings(including Louise's and her 50'b wedding anaivTx=-y),Bris,Bat Mitzvah parties,recep- tions for film directors of the San Francisco Jzvtrish Film Festival,birthday parties and political fundiaisivag events- It has also been used for large catered lunches,dinner and classical music performances That have been auctioned off by the Kensington Hilltop Elementary School warden Party. Quests have included a past California State Governor,current U.S.Congressman,local successful school board candidates, Grammy Award Winners,and leaders of business. Many of these events have had over 250 people,with- out impacting nay neighbors. My newly landscaped home and backyard,which are within compliance of County standards,will be used primarily for dry own personal enjoyment. Occasionally,it will be used to continue the established tradi- tion.of non-profit fundraising events. One such charity is the Parkinson's Institute for whom I will hold a benefit on May 20`°. - Parking Shuttle transportation will be provided for my guests and those wishing to park on the street will be told to park only in legal places. Parking has never been a problem for any event that has been held here,and I expect this tradition to continue,as weH. 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 yours,and you will find that my events in the future will have as little impact on you as they have had in the past. If anyone would like a personal tour of the landscaping I am doing,please give me a call;and I will gladly show you around. Regards, Danny Scher 61 Graphics by Corey Scher.Age 10 t i C�, r ) rnrJucJl.l�c.,'tio�r(.rrr'r/.•Irnur/, -fielzf4s I �: fo de Cr('A7t111Cf>l.r�.1/�fC917L'(:r :'r)77 L'l/'All 1<(!)l r�YFft ((ll lr'�l rl��/•%t R ra��ifrr ffrrl f o.f�r.*,,:')r;.f(F f�firrrnrr».- dlJiF`C I(r)tCrYCf(• r{Jll'fJlrrt/ �tC•(t(t' .'/,)rrfrrl.�rYi/rf�n�rizir! , t i . .r t 111r.and Mrs.Granville L.Beecile i revest the Pleasure of your company at tare marriage of their c11u81,ter Jane Roby to L�AA 1 II lr.Rober�1enry lti��ebranc� - t on Sunday,the twenty-ciel'tb of Play Nineteen 1111nired anti fortv-four J at three oclocic in tire afr ternoon ivahuncircdGovenlry Road Lorne of Dr.and Mr..J.J 11.11ildArand r Berleicy, alitor,ma i � » , � � � � . \ /�;���% � ���/y \ � � - ± - a, . > � . � \ � "�����x'\ - r � . ?�����/\ �'f� ���a�� , . ��«« , , �> �%� ���` � � �G2�� � i � � ST 1 iP•h I� �r^r"'�f X`r+�•i�1171 �• t6 s; .�^" •�t s t a Y • a t<�'K,}.. •''' i t��r .� X' t'i St 1• a •r f • f n F�F � {. ••� �� t t.. �} ,�tfj'Fr ��`#! 9 •-�' �,Y.t ,, "7'` 7'»�i'"..'`v :.ti e t } t. r .�{LL t !�,• to� � � ►��.� a.it ��r •..••+ �..q•'t •''`°.c � • •' r't . 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ProPeH �/ gtnce l<� b3. I declare under penalty of perjury that the foregoing is true and correct, and was executed on .MI RijSo ,, 2�� at �bG�LC`(� California. LC9 Itise Kc�_t! Print Nai e }. Signature lz—L,olCe►s L Pns�non SlD - ��7 c5c� 7 - Ad r d ess Telephone SUBSCRIBE0ID SWORN TO BEFORE ME.:. ETHAN SMITH �f TIIIS STATEMENT SHALL BE NOTARIZED � .� COMM. #1273132- L T}{IS VOTARY;PUTBLt �L NOTARY PUBLIC-CALIfORNIA ALAMEDA COUNTY My Comm.Exp.Aug.6.2004 Z: - agw QXt.� M o JZs�r2 . awe. �-� � Q. a od •�. �� �e� Qn ti 0, aJL o Xoe� Jsoec � � o"C�-{�►� STATS COUNTYOF..................................... _ c L< J e.In rw A State: To confirm a »on-confgrnting.status as required by Chapter 82-4 of the Contra Costa County Ordinance Code, I hereby ceriify that the site listed below has been used for ��t� Cl)0i_ 1 C�,nrk c ei e ee5 continuously from to_� �d�5 Address d L y ,. y7 Parcel No. f7� — ��/��' //�/S1 — �� �'7 I To the best of my knowledge e- R(-J A4, _ —' On - L 6.5 C� �N_ Ulv—e- cic'.RGI��4 �C1� c•LZ� _ U��c�i Sr "C���t�� e�C,1 fi4tS('..;,E'-v� CA -lie I have of t/iis site hec'cluse ofthe following reason. Resiclenre in cieri at SUBSORIDED AND SWOiAN TO BEFORE MF_ Other (explain) .�/ •{f}�Q � BY IL7V D, (Lb- I declare corder penalty of perjury that the foregoing is true and correcl, c s> .l¢rted on �eI� at _ / California. N Ll Print Name Signature Address f A 15&( Telephone LYNN CHRISTENSEN rA0Z Commission# 1239287 THIS STATEMENT SHALL BE NOTARIZED Notory PUb G_—Califoml0 S Iz`.nr,naJnufim Iti4c YOiO County My Comm.BOBS Nov 19.2003 1, State: To confirm a cion-conformi.rig 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 1 continuoresty from i�K.h-02 2_ 1 q3S - Address Parcel No. T-7 c-^ To the best of my knowledge - +/L e�l ( -- - � wag I l!(!i'C' /il1011' C'dqf' of ll!!( .SL(`' :'('C(!L!;e C,'f tllc'Joliowltl- Ieason.' Residence in (11"ea (!t 1'1"0111 ---_-- IO: _ l°I y 7 Other (explain) 1XRZ � o I declot-e under penalty of perjury that the foregoing is title and correct, and was executed on Q Shy s o Qe.N Z G. Zoo ( at cN �, GaCI� Lo(,3n p � R ,• b - m Print 'ante Sign ure d � Q S?2a s_ K�r__n_L ar-K-Ave _7 in 3 Address Telephone 60&37 "OFFICIAL SEAL " THIS STATEMENT SHALL BE NOTARIZED RUDOLPH A. BANOVICH NOTARY PUBLIC,STATE OF ILLINOIS MY COMMISSION EXPIRES 5/28/2004 Kensington Improvement Club 103 Highland Blvd. Kensington, Ca. 94708 ^ June 21, 2001 - 2, ! i l c_ 02 John Gioia, Supervisor District 1 Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D El Cerrito, California 94530 Re: Amphitheatre aid 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 membership includes over 700 households. Periodically the KIC Board takes a position oil platters affecting the public interest, such as the appeal of Mr. D. Scher from the decision of the Communitv Development Department denying permission. to Mr. Scher for use of an amphitheatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct, and that such denial should be affirined by the Board of Supervisors on the pending appeal. The Coventry Road area, indeed, almost all of Kensington is zoned as R-6, residential properly. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in even respect, notwithstanding that the applicant may intend to turn net profits over to various charities. We understand that advertising,advance ticket sales,and service of alcoholic drinks to audiences of tip to 250 people at a time are intended to occur at the proposed events. Sucll use, if approved, would set a precedent that would affect our entire community. Along that area of Coventry there are no sidewalks, and in some places, two cars can pass each other only'.0th great difficulty if there are ally cars parked on the road. Although Mr. Scher play make mail)'representations regarding what lie will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area, it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cannot effectively prohibit attendees from traveling to the site by car, nor can he guarantee their conduct. whether they have been drinking alcohol or not. If there is an emergency, the difficulty in getting emergency vehicles and personnel to the area could be substantially iitcreased. The anlplutheatre is located in a canyon, and even unamplified sound echoes through and up the slope. That segment of Coventry Road(and its surrounds) is extremely quiet and beautiful. Moreover. the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested,the KIC Board believes that the very same issues which concern its on this appeal would prevail and the request should be refused. We trust that the Board of Supervisors will affirm the decision of the Community Development Department, and in so doing,preserve the integrity of the zoning process. This process has protected all of Kensington's residents including those of the dignified and beautiful Coventry Road area. Very truly yours, Linda G.Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Bang,Dir.,Community Developnunt Department Catherine Kutsuris,Deputy Dir.,Community Development Department Aruna Bhat,Planning Division Manager,Community Development Department June 27, 2001 - Supervisor John Gioia Contra Costa County - I" District 11780 San Pablo Ave. Ste. D EI 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 Municipal Advisory Council Chair, James Carmen Dear Supervisor Gioia, We are writing to you in regard to Mr. Danny Scher's recently constructed amphitheater and its planned use at his property at 500 Coventry Rd., Kensington, CA. Mr. Scher has filed an appeal with the Contra Costa County Board of Supervisors to overturn a ruling by the Contra Costa County Community Development Department which has denied him a legal non-conforming use permit to conduct concerts at that site. We have been informed by that department that a hearing on this appeal will be scheduled for 1 00 PM on July 17, 2001 at the Board o1'Supervisor's meeting. We, who are Kensington residents and neighbors of Mr. Scher wish you to know our position on this matter. Mr. Scher contends that lie is entitled to a non-conforming use permit (grand-fathering) based on his claire that the concerts which he intends to hold at his new 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 .-..hose signatures appear below have lived in the immediate area of the amphitheater for more than 50 years end 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; Krutsuris letter-dated April 23, 2001 addressed to Mr Scher. In addition, the concerts planned by Mr. Scher raise the following concerns: - increased levels of noise from amplified music and from 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 !eller 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, we 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. SSS cVE4Vl- R �/ ISG I �� e� 01; '00 911�1 Z 616�1 � �G v � 627 �/ l c�7 p June 26, 2001 leller to,Supervisor John (lima continued SIGNATURES: ADDRESSES: �� �ti'�t.- ;t� '� •�`..i�^�-r-z.- ' L IU. G1 Y¢i� •�r� f+A4/37 4e�� (� ` •loft � _ at i , /` u �: .l it 04e t7 " f Jure 26, 200/ teller to Supervisor John Gioia continues! SIGNATURES: ADDRESSES: OA p l�ll2%f'1 ��. 1��✓�S lvi�'Ic J J Fit, r (7D (c,-,e o)gA t Rc n:51/1 f � G June 26, 2001 leiter to Supervisor.10/111 (;ioia continued ADDRESSES: SIGNATURE A t k- e7. Z4 LT /4 V -V s I&'G- �, June 4'h, 2001 Ms. Aruna Bhat, Principal Planner n • Community Development Departn&ht COntrg CpgagopV 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 Board 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, we 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 neighborhood 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)rights of residents to the quiet enjoyment of their homes and property. Thank you for your consideration. Sincerely yours, i Ge rge and Gloria Kwei 10 Kenilworth Court Kensington, CA 94707 (510)559-3777 kwei I O)Ilnl.gov 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 ( � r Community Development Department, Contra Costa County ' ' 2: 00 651 Pine Street,0 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 Schers proposed property use for commercial fund-raising 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. Scher's property at 500 Coventry Road is less than 500 feet away. The owners 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 17"'hearing in order to lend our support to the denial of Mr. Scher's appeal. Respectfully yours, William R. Buehring and ertrude C. Buehring One Marchant Court Kensington, CA 94707 Supervisor John Gioia ' ^` 100 37th St. Room 270 Richmond, CA 94805 Dear Supervisor Gioia, .o 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 . diffipplt to hold a conversation on our deck or to sleep at 'night. Now I am appalled to hear that Danny Scher, formerly of Bill Graham presents, wants to subject Kensington residents to outdoor, fully amplified concerts at 500 Coventry Road. This is clearly an invasion of privacy and breaks all residential zoning ..Laii s - I commend the Supervisors for turning .him down the first time arounaand hope that the legal appeal battle which is apparently shaping up will not change your minds. We, in Kensington, say "NO LOUD COMMERCIAL AND BENEFIT CONCERTS IN OUR NEIGHBORHOOD" . I cannot imagine the traffic and parking problemsit would involve. You are our governmental leaders, as we have no city council . The County has always been fair and abided by the zoning in Ken sington. Please do it again. Cddially, ag-- z Joan M. Haber 86 Norwood Ave. Kensington, 94707 510-526-7205 cc Dennis BQxry Community Development Director County Administrator O1 ►arc; _� f'i1 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`t' 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 Mr. 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, ,�f Jan K. Groom Cc: Supervisor John Gioia June 4`h, 2001 I Jur Ms. Aruna ra, cipal 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 Board 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, we 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 neighborhood that use of the "amphitheater"will create, (3)redaction 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 frorn an amplified outdoor sound system, and intrusive lighting from tree-and ground-based lighting systems), and(6)rights of residents to the quiet enjoyment of their hornes and property. Thank you for your consideration. Sincerely yours, � / AI George and Gloria Kwei 10 Kenilworth Court Kensington, CA 94707 (510)559-3777 kwei l(a_),llnl...;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 4`h, 2001 Ms. Aruna Bhat, Principal Planner 02 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 Catheruie 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 Board 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, we 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 neighborhood 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 frown an amplified outdoor sound system, and intrusive fighting from tree- and ground-based lighting systems), and(6)rights of residents to the quiet enjoyment of their homes and property. Thank you for your consideration. Sincerely yours, Ge ftd Gloria -wei 10 Kenilworth Court Kensington, CA 94707 (510) 559-3777 kwei 1 LeD.11nl.gov Cc: Supervisor John Gioia, District 1, 11780 San Pablo Avenue, El Cerrito, CA 94530 Director Dennis Bary, 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 554 COVENTRY ROAD BERKELEY, CALIFORNIA 94707 U I .9Ui u » t, Division Manager, Community Development Dept., Contra Costa 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 with 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 was married back in the late 20's and 30's. There were no seats. I cannot imagine how Sher could invade our quiet 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 values. We are depending on you,our County Authorities, to prevent this encroachment and appreciate your help in this upsetting and painful matter. Sincerely, can Kukulan Reilly bt o4 Ale AMA - For RIC- Date: Sat, 05 May 2001 14:41:32 -0700 To: ccc_cdd@yahoo.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 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 nonconfonning use. J Folger-Brown Timothy P. Hoyer 555 Coventry Road Kensington, CA 94707 510.526.8794 Do You Yahoo!? Yahoo! Auctions $2 Million Sweepstakes - Got something to sell? April 20'', 2001 Catherine Kutsuris, Deputy Director Oj Community Development Department, Contra Costa County 651 Pine Street,4`h Floor, North Wing Martinez,CA 94553-0095 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 security 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`x' 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. However 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 views on the granting of a permit. This way, informed decisions can be made by the County as to whether such a variance should be granted for large public events in a Residential area. Sincerely yours, VGe !d Gloria Kwei � 10 Kenilworth Court Kensington, CA 94707 (510) 559-3777 (home) (925) 422-9311 (work for George) (925)422-9380 (work for Gloria) kweil@llnl.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; lived next door to my mother from 1989 to 1997, and moved back into my childhood 1: home in '97, after my mother had a stroke. During the years from 1970-89, 1 lived in North Oakland and visited my mother frequently, so I am very aware of what went on at 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 (1 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 very particular about respecting the truth--and that is a "prior use" we should all follow. Sincerely, Linnea Due 2 Kenilworth Court Kensington, CA 94707 (510)525-8981 ` Community Contra Dennis Barry, AlCP Community Development Director Development p Costa Department County County Administration Buildingr_A� 651 Pine Street 4th Floor, North Win Martinez California 94553-0095 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 201h. 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, 1t Floor, Room 107, Martinez, California. If you need additional information, please contact Ms. Aruna Bhat, Project Planner, at 925.335.1219. Sincerely, Dennis M. Barry, AIC Community Deve ent Director DMB:gms dmb5/Reilly—amphitheater Itr . c: Catherine Kutsuris, Community Development Department Aruna Bhat,w/enclosure Office Hours Monday - Friday: 8:00 a.m.-5:00 p.m. Office is closed the 1 st, 3rd & 5th_Fridays of each month 0 . 7 554 COVENTRY ROAD BERKELEY, CALIFORNIA 94707 01 ,.,r,. 2 09 - Z 1157f r . 4�7 U� f "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 1.4:41:32 -0700 >To: ccc_cdd@yahoo.com >From: "Toni (J Folger-BroVm) " <thoyer@uclink4.berkeley.edu> >Subject: Non-conforming use permit for Scher's Coventry Rd. property >Cc: thoyer@liclink4.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 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 t'1 H W � N � W a a �+ rte n m m N N N p N •• L7 H 't1;•1 rt H H .. N to N n0 r• O N, mtn ao � I o ao o rt ° ctg R m o N. b N 10 N % +"�► N a VI 10 WI C3 ro o o ft tti t) � � n H .. N m m m w .. fP3 mr- X m 0, O 7a H 03 G m a \ p, r. M rf j W H to �+ rt 1-4 m cot , o rl o � H m '�' °' o o y rt @ x m o } c `• :3 cn *t ►4 m m •• a v n rat4i rt ; � a m of a \ RS b W a) b b� .,-f M N O O � � >i W b a>) �4 O (L) { (d •0 N N O •H $4 (1) > (1) a) ro b N �4 9 a) 0) b •r4 $4 C) (0 4-) O O a) A NA b44 4J a+J .0 k +) N V 4J a) A N G a a a) OA a a, 0u ro bro9 4) r •� 0k w-r♦ Oa! (akO A 0 -Ha a >1 0 ° � r-4 a w rO 0) w w (a . P4 a ani � k ° u°1i•r. >t �0 > 4 m N b T3 0 .'u 0 0 bl w 4-4 4-) •A � O a) a) 4 p+ C+ O 3-1 O•r4 O a) (L) +3 a �4 >r O 0 " r♦ to 4) 4) �4 >, 0 •r4 to 41 b OA a p 9: aO 4-) s +-) b N (L) •r+ 4J O 0 (a 0 •rI (a •r4 k a) .0 N 'Cf >+w u 4-i' 4-) N 0 (d 41 r. a) O w ro 9 41 •r-) w O r44 trtrO 10 4J a) 9r-fA a ° � � � � AsU +)x > k A 4-) .Q ae 0 (0 --1 w a 040 0 a) k a) (a 4J (1) +-) r♦ u u >r Aa) O Aa) Nab u0 k Hb +J tZ +-) V1 G O G .ro .N X N r-1 A aJ (1) A 4.) >,•r♦ A u) •r) 0 •ri •H a) 3a U) 4J �4 4J U {�.. v1A 3N rZa1a! O 4.1 to O 0 f~ (d •H N (1) a •ri a) a) (A aa) a) aa) tray > a 044 W .[ 4J O H w O w •,i a •r+ a) H a► r-1 N M Uf • MIRIAM AWL IY Berkeley City Council RECEIVED District 5 Jul 1 0 1001 CLERK BOAF?D OF SUPERVISORS July 6, 2001. CONTRACOSTACO. Board of Supervisors Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553 Dear Supervisors: Several of my Berkeley constituents live on the Berkeley-Kensington border just across the canyon Froin 500 Coventry Road in Kensington, where Mr. Danny Sher proposes to use his outdoor amphitheater for fundraising events. These neighbors of Mr. Sher's are concerned about his plans to hold fundraising events in the amphitheater on his property, and they have asked that I request your consideration for the issues they have raised. The potential noise, lighting, and traffic and parking impacts of the events could have important impacts on the people who live in this neighborhood of single-family homes. Moreover, their unease about the proposals is increased by Mr. Sher's apparent unwillingness to agree to any parameters for the events such as their frequency, hours of operation, or the number of people who will attend. I am asking that you consider the concerns of the Berkeley neighbors as you make your decision about allowing Mr. Sher to proceed with his plans for fundraisers in this quiet neighborhood. Thank you. Miriam Hawley CDD 2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981-7150 Fax: 510.981-7155 m hawlcy(Pci.berkeley.ca.us N I R I A M NAWL' EY Berkeley City Council RECEIVED District 5 Jul 1 0 1001 CLERK BOARD OF SUPERVISORS July 6, 2001 CONTRA COSTA CO. Board of Supervisors Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553 Dear Supervisors: Several of my Berkeley constituents live on the Berkeley-Kensington border just across the canyon from 500 Coventry Road in Kensington, where Mr. Danny Sher proposes to use his outdoor amphitheater for fundraising events. These neighbors of Mr. Sher's are concerned about his plans to hold fundraising events in the amphitheater on his property, and they have asked that I request your consideration for the issues they have raised. The potential noise, lighting, and traffic and parking impacts of the events could have important impacts on the people who live in this neialiborhood of single-family homes. Moreover, their unease about the proposals is increased by Mr. Skier's apparent unwillingness to agree to any parameters for the events such as their frequency, hours of operation, or the number of people who will attend. I am asking, that you consider the concerns of the Berkeley neighbors as you make your decision about allowing Mr. Sher to proceed with his plans for fundraisers in this quiet neighborhood. Thank you. 7h� Miriam Hawley 0'a cvv 2180 Wvia Street, Berkeley, CA 94704 Tel. 510.981-7150 Fax: 510.981-7155 mhawleyOci.berkeley.ca.Lis Juno e-mail for randbgiusti crjuno.com printed on Tuesday, September 25, 2001, 9:05 AM • 0 From: Linnea Due<lindue earthlink.net>(by way of Gina Covina) To: randb9iusti@juno,com Cc:jwalke560@aol.com Date: Mon, 24 Sep 200120:59:32-0800 Subject: Danny letter LETTER TO BE READ AT HEARING: My name is Linnea Due. I want to respond to Danny Sher's statement in a letter sent out to neighbors that he is appealing the county's decision "on the grounds that the amphitheater has been used for similar nonprofit fundraisers over the years." I grew up across the court from 500 Coventry Road at 2 Kenilworth Court from 1951 to 1970, lived next door to my childhood home from 1989 to 1997, and moved back in'97, after my mother had a stroke. During the years from 1970-89, 1 lived in North Oakland but visited my mother frequently, so I am very aware of what went on at 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 many times. Not once did I ever see a concert, nonprofit or otherwise, held in the "amphitheater." In fact, during a recent conversation I had with Louise Hildebrand Klein, the Hildebrand's daughter, she told me that she thought of the area as an amphitheater only because of its shape and not its use, and that it had never been used in the way that Danny intended. There were never seats or benches until Danny purchased the property in 1988; the site was a lovely natural bowl of ivy and grass and redwood trees. The Hildebrands used their large yard, including the stage, for infrequent family events. Louise's few dance recitals for friends in the '20s or two family weddings in the'40s does not constitute a history of non-conforming prior use. I might add that after the'40s, to my knowledge the site was not used at all, and by the early '70s the stage had all but collapsed until Danny rebuilt it after he purchased the property in 1988. Any fundraisers at 500 Coventry Road were held after Danny's purchase. It truly upsets me to see history "stretched" in this way. Joel and Emily Hildebrand were very particular about respecting the truth--and that is a "prior use" we should all follow. Sincerely, Linnea Due 2 Kenilworth Court ,/�,, ` �Q q� Kensington, CA 94707 (510) 525-8981 r�� -�. �Je.�1 1 1 of 1� �' I ,. • c .:� Mr. Scher proposes to shuttle patrons to these events.,Even before these patrons vehicles arrive, all of the very limited parking, legal and otherwise, will be taken up by vehicles driven by people employed to set-up and manage the event. This includes the sound equipment truck that supplies the microphones,ampli.fiers and large speakers; the caterers and the band or orchestra and those who choose not to take the shuttle. When the shuttles arrive, there will be no safe place left to park and off load passengers. The shuttle operators will need a level place, out of the flow of traffic, to off load passengers and to re-board passengers at the end of the concert. The only level spot is on Kenilworth Ct. as it meets Coventry Rd. If these vehicles park there, they will block access to 10 Kenilworth Ct. by the residents or Emergency Response vehicles. The whole issue of transporting 250 or more people to attend a commercial event in our otherwise quiet, peaseful, residential neighborhood serves to point out how radically different Mr. Scher's planned use of his new amphitheater is from any prior use or any use allowed by R-6 zoning. Our streets can not accommodate the vehicles necessary to transport 250 or more to Mr. Scher's planned events. No traffic engineer would say otherwise If Mr. Scher is sincere in his desire to hold concerts to benefit charities, he should use those locations appropriate for that purpose and not invade a zoned and used residential neighborhood's quiet enjoyment or threaten our safety. You do have the right, duty and power to uphold your staff and I urge you to do so. Even the East Bay Regional parks bars events in residential areas as proposed by Mr. Scher. Attendance is limited, for all events,political,social and charitable to what can be accommodated by on- site parking and outdoor amplified sound is barred. kz,.� ""a 3 "s _2_�7 d&v BRAZILIS ROOM RULES & USE AGR MENT JfiGK ;OSAJJI T BAY REGIONAL PARK DISTRIC RULES ALCOHOLIC BEVERAGES Beer,wine,and champagne are permitted. No other alcoholic beverages may be served or allowed on the premises. The bar may be placed in either of two places,on the patio or next to the kitchen door in the main hall. Placement of beer kegs is restricted to patio and kitchen only. There is an alcohol prohibition for all sorority and fraternity groups. MINOR GROUPS Groups .with a majority of guests from 16 to 21 years of age must have an approve se urity officer esent at each event. There will be an additional security.off icer present for each 50 guests thereafter. Manager will verify the c s n securi ompany. Certification ust be on file with the Manager at least two weeks prior to reservation date. All sorority and fraternity gro a considered minor groups. USIC OR SOUND AMPLIFYING EQUIPMENT Because the Brazilian Room is located in u is park. sed by others, the volume of sound udible outside the building will not interfere with the public's right to quiet enjoyment of the pi is i not only a matter of consideration for thers,`s the law.No music is allowed outside the building.,with t e exception of unam lified q uiet during the actual ceremony only. Music in the"6TirfaiR'g m st be eeM irrthe-requlred s�s--TMTe-M �ae �Rp!ca ion is due two wee prior to the event. NFETTI AND RICE No confetti, rice, flower petals, birdseed, streamers, glitter, poppers, etc. may a used in or around the Brazilian Room or park. Although balloons are allowed in the building, they are not permitted to be released outdoor within the Tilden Park environment. CANDLES No candles will be allowed to be used at the Brazilian Room unless you hay ed pproval of the Manager prior to the event. Candles are not allowed to be used outside on the patio, walkway, lawn, etc. PATIO AND LAWN No one may drive any motorized vehicle onto the patio or lawn. All s must be limited to patio. No furniture is allowed on the lawn, and no stakes or anything similar can be driven into the lawn. No food may be pre * d,cooked,or served on patio or walkway. Bar must be placed in approved space. Ordinance 33, Section 409.2 states that no one may hit golf bal s the lawn. No tarps, tents, or coverings of any type are allowed, DECORATIONS AND SIGNS Nothing may be nailed,tacked,taped, hung,ortxeny way to the facility, inside or outside. All decorations other than free-standing must be approved by the Manager. There are sev pots for attaching items to thewalls. No runners may be taped to any surface. Disposable runners are not allowed. Besuremu-ci c. understand this policy. Directional or informational signs within Tilden Regional Park are not allowed: SMOKING There is no smoking allowed inside the Brazilian Room facilitycotta ashtrays outside for cigarette butts and cigars. DISPOSABLE PRODUCTS No Styrofoamor an foam roducts are allow dn conjunction with your reservation. Plastic products that are not recyclable, or not washed and reused, are strongly discourage . BARBECUE There is no barbecuing allowed on the patio, law , or I. y. Barbecuing is allowed only out back behind the kitchen. No barbecuing will be allowed during a red flag fire alert as posted y the Di ct. PARKING The parking lot is a public lot f approximately 28 e' cl s. There is additional marked parking on Wildcat Canyon Road. Illegal parking is subject to citation. CATERER You may do a potluck having hired staff or hire a cate from our approved list. No other caterers or hired staff may work within the facility. Return the catering form with t e name f r ch en cat, er to the Brazilian Room at least two months prior to your reservation date. If you choose the potluck option, you crew will be r quired to attend a mandatory orientation. The size of this crew will depend on the number of guests attending your event.There-will be a potluc fee. The cost for this varies depending on the event type and number of guests. VENDORS Make sure your various vendors understand the azilian Room rules that are pertinent to your event. The vendor form must be completed and returned to the Brazilian Room office two week prior to your event. SOLICITATION AND SALES You are riot permitted to sell, s licit, peddle, rent any goods, wares, merchandise, adibles, or collect any money in the Brazilian Room unless you obtain prior written permissi n from the Brazilian Room Manager. SETUP/TAKEDOWN AND DELIVERIES The facility staff is got responsible for setting up and/or taking down the tables and chairs. This is the responsibility of the User and must be completed within the. ontracted time period. All deliveries must be scheduled to be delivered and picked up within the contracted time period. PAYMENTS Reservations are made in person at the Brazilian Room office and require a downpayment, with the balance due 120 days prior to your reservation date. All arrangements for services must be finalized at least two weeks prior to reservation date. We no longer accept cash. CANCELLATIONS Cancellation requests must be made in writing. Refunds will be made as follows: over one year's notice, 100%of the deposit will be returned less a $50 bookkeeping fee; 120- 364 days' notice, 50%of the deposit will be returned; under 120 days' notice, 100% of the cleaning and damage deposit will be refunded, and 50%of the remainder of the rental fee will be refunded if the date can be rebooked. TRANSFERS One date transfer is allowed any time up to 120 days before original date at no cost. A hold of one week will be made for requested new date and will not be extended. Awritten request for this transfer must be received by the Brazilian Room Manager within this one-week period. If reservation date must be changed more than once, a cancellation must be made. CHILDREN All children 15 years and younger must be supervised by an adult at all times. They have tremendous energy and must not be allowed to play in the flower beds, climb the building,swing from the flagpole, litter, or throw rocks, loquats, gravel, etc. Return signed form two weeks prior to event. 0 0 My name is Ted Groom and I live at 464 Coventry Road where my wife Joan and I have lived since August, 1985 and where Joan lived with her parents from 1945 to 1965. I am here to support the Contra Costa County Community Development Department's determination that Mr. Scher's planned use of his new amphitheater is not a "legal non-conforming use" and to ask you to deny Mr.Scher's appeal. I would like to speak to the issue of traffic congestion that would result if concerts were to happen. In particular, I would like to focus your attention to the matter of bussing patrons to 500 Coventry Road. I have some pictures that show the "lay of the land" which will help you appreciate the point I want to make. And the point is that bussing 250 people to 500 Coventry Road is impractical and dangerous. Notice the lack of a sidewalk and the deep culvert in front of Mr. Scher's property, the "no parking any time" signs and the steep up-slope of the street. Notice that Kenilworth Ct. is a very narrow one lane "driveway" leading to 10 Kenilworth Ct. which is adjacent to Mr.,Scher's new amphitheater.- 9Jt S. I V-s 0 kx —O-tk=---4A Lv Lae Vp.M, f AV i� a. I� � �jV' ous� �MV SCA�r , s a- COY vL Gam_ ��raaf„ice ya f 6l I R1,91A cn jj.�S-�.f e r f ILI, e✓ 2--o k P Of— � PQ "I(- L - - �log -- - - -- ie I.:p • ��it RECEIVED SEP 2`�5 2001 PE CLERKCONTRA COSTA CO ISORS Facsimile Transmission Chairperson Gayle B. Uilkema 1-925-335-1076 Supervisor John Gioia 1-510-374-3429 Supervisor Mark DeSaulnier 1-925-646-5767 Supervisor Federal D, Glover 1-925-427-8142 Catherine Kutsuris, Deputy Director Community Department 1-925-335-1222 Diana Silver, Deputy County Counsel 1-925-646-1078 ��r.G4.GYJ✓Jl G-Glr-'I'I I'IHKbUL11`I 6, YJ1H I LH NU.4�35 F'.?/( RENA RICKLES ATORNEYATLAW 1970 BROADWAY.' 1200 OAKLANp.CA 91612 TEL,(510)452-1600 ■ FAX;(510)451-4115 September 24, 2001 Chairperson Gayle B. Uilkema Members, Contra Costa Board of Supervisors C/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Via hand delivery and facsimile Re: 500 Coventry Road, Kensington; Appeal to the Contra Costa Board of Supervisors to overturn the Community Development Department's determination that Danny Scher's planned May 20, 2001 outdoor concert at his newly constructed amphitheater did not qualify for non-conforming use status. Hearing date: September 25, 2001 Dear Chair Uilkema and Supervisors: As the attorney for the Coventry Neighborhood Group, I urge you to uphold the Community Development Department's determination that appellant's proposed use of his newly constructed 250-seat amphitheater on the property of his single-family home at 500 Coventry Road for outdoor amplified concerts and events does not constitute a legal non-conforming use in an R-6 zoned neighborhood. The issues on appeal are as follows: 1) Whether the appellant has established, through clear and convincing evidence, that his proposed use of the newly constructed flagstone and rock amphitheater with permanent seating for 250 people, amplified sound system, expanded stage and lighting system constitutes a legal non- conforming use? 2) Whether, under the language and intent of the United States and California Constitutions and the cases decided thereunder, the appellant has established that the newly constructed amphitheater's intended use is exempt from the R-6 zoning requirements and protected by First Amendment (free speech) "narrow scrutiny" standards, if the appellant's amphitheater's events include political or charitable fundraising? The answer to both questions must be an emphatic, "NO". Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 1 JLI LY.LUV1 L•LGrl l I'IrIICbVL11`I ti Dlhlll.l'1 NU.4.�D r'..7if I. LEGAL NON CONFORMING USE A. The newly constructed amphitheater and its proposed uses do not qualify as a Ispat non-conforming use. The property in issue, 500 Coventry Road, lies within and is subject to the R-6 single family residential standards which specifies which uses, including uses normally accessory to those uses are allowed. Uses not specifically allowed are disallowed unless appropriate permits are obtained. Or, unless appellant proves that the new construction and proposed uses qualify as a legal non-conforming use ("grandfather status") A legal non-conforming use is one, which was valid when created, but by subsequent zoning, it became invalid. (Hill v. City of Manhattan Beach(1971) 6 Cal.3d 279,285) To continue its legality, the non-conforming use must exist on the date of the new zoning and continue, uninterrupted. (Ibid.) Zoning regulations, while recognizing the right to continue a non-conforming use, prohibit any expansion and contemplate the eventual elimination of such uses. California courts have-generally followed a strict policy against the extension or enlaroement of non-conforming uses. The purpose of zoning is to reduce and eliminate all non- conforming-uses as speedily as possible. Paramount Rock Co. v. County of San Diego (1960) 180 Ca1.App.2d 217,228. Changes in use which tend to enlarge or tend to make the non-conforming use more permanent are not protected. (Ibid.) Repairs or alterations which make the non-conforming use more permanent are not allowed. (See Dienelt v. County of Monterey(1952) 113 Cal.App.128) where changing a walled, flagstone patio was replaced by a concrete, flagstone patio was found to be an improper change to a non-conforming use. On the property at issue, before 1988, the facts show that there was no prior non-conforming use, The testimony that you will hear and the letters submitted from neighbors who have intimate, first-hand knowledge of the property well before and since 1947, support the fact that large parties, fundraisers, and events all occurred after Mr. Scher purchased 500 Coventry Road in 1988. ( Cf. Declaration of Louise Hildebrand Klein) Before Mr. Scher purchased 500 Coventry Road, the site of the newly constructed flagstone amphitheater was a natural bowl, without permanent seating, used for small, private family gatherings, a daughter's dance recitals and two family weddings in the 1940's, To the neighbor's knowledge, from that time (the late 1940's) until Mr. Scher purchased the property in 1988, a period of four decades, the site was not used for any events. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 2 JLr,G4.if eJVJ.L G-GGI"I'I 1'IHKVUL11'i 6, biH I UN NU.4ZZ) f.4/ B. The amphitheater's new construction and its proposed uses constitute an impermissible expansion and enlargement of the original use. Over the past year, Mr. Scher constructed a 250-seat amphitheater, which includes an amplified sound system and extensive outdoor lighting. Clearly, the proposed May 20, 2001 ticketed fundraising event, which featured Louie Bellson, a world class drummer and the Hayward Swing Band, and included a one-day permit for alcohol sales, cannot be considered a mere continuation of the Hildebrand family dance recitals and weddings, Even if one assumes that the family dance recitals and weddings were not normal accessory uses, appellant has not adequately demonstrated that the property at 500 Coventry Road has been used continuously for activities that are unrelated to the normal uses of a single-family dwelling unit. The appellant's proposed use of the newly constructed stage and amphitheater, therefore, does not constitute a legal non-conforming use, and is not normally accessory or auxiliary to a detached single-family dwelling in the R-6 single family residential district. Thus, even if one were to accept the three notarized declarations by appellants witnesses as valid, the amphitheater as now constructed and proposed for use fails to meet this County's criteria for a legal non-conforming use. The 250-permanent seating, sound and light system cannot reasonably be considered a mere continuation of the Hildebrand family amphitheater. Nor could the proposed May 20, 2001 event , featuring Louie Bellson, a world-class percussionist and the Hayward Swing Band, and similar events, for whatever purpose, be considered a mere continuation of the Hildebrand family dance recitals or two family weddings. II. APPELLANT'S FREE SPEECH RIGHTS HAVE NOT BEEN VIOLATED Appellant's proposed use of the newly constructed stage and amphitheater, which includes outdoor events including a swing band, musical concerts, with amplified sound, even if for charitable or political fundraising purposes, are NOT normally accessory or auxiliary to a detached single-family dwelling in an R-6 single family residential district. Prohibiting these uses as appellant proposes to conduct them, constitutes a proper exercise of zoning and police power. Appellant's proposed use of the stage and amphitheater is not a free speech issue but, rather a question of whether the proposed use of outdoor, amplified amphitheater for 250 guests, is a use normally accessory, or auxiliary to a detached single-family dwelling in an R-6 single family residential district. The determination by the Community Development Department that appellant Scher's proposed May 20, 2001 concert violated the County Code and was not allowed on that R-6 site represents permissible"content neutral" application of the County's zoning laws. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. , 3 Z)L.r.cti.CYJVJl G-Gzjrl'I 1 L.h1 IYV.4d5 Since the R-6 district does not specifically allow an outdoor 250-seat amphitheater, used as proposed by appellant, Scher, it is a proper exercise of the County's police power to maintain the single-family residential character of the neighborhood by holding that such a use is not permitted, A. Notwithstanding appellant's attorney's arguments, where, as here, the zoning ordinances at issue are content neutral, there is no question of whether Mr. Scher's free speech rights have been violated. The beneficiary or purpose of Mr. Scher's proposed event was not in issue. It was not the message, verbal or musical, that was to be delivered over the amplified sound stage that was not permitted, Nor did it matter who the recipient of any funds collected may be. It was the fact of the outdoor event itself, its impact on the quiet comfort of the residential neighborhood, and the language of the County's Zoning Ordinances that was in issue. Such general regulations that control "time, place and manner" and are written and imposed without reference to a specific conduct or speech and viewpoint neutral are defined as "content neutral" and do not violate free speech. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal,4" 352,367,373; E.W.A.P. Inc. v. City of Los Angeles (1997)56 Cal.App.4rh 325). Moreover, the Community Development Department's decision at issue did not bar political or charitable fundraising inside appellant Sher's home (or any other home for that matter). A political, charitable or social event which would not infringe upon the Quiet eniovment of the neighborhood would be permitted. Even if the events planned in his amplified, sound stage, outdoor amphitheater fall into the category of"protected" flee speech conduct—political or charitable fundraising--the enforcement of the zoning ordinance that does not permit that conduct in an R-6 zone, does not in itself violate the free speech clause under either the California or United States Constitutions. (supra at p.364) California cases recognize that a regulation, even one affecting protected (free speech) conduct , is enforceable if it survives the "Intermediate scrutiny" of time, place and manner analysis. (ibid.) Legislation may be upheld as reasonable, time, place and manner so long as it is (l) narrowly tailored; (2)serves a significant government interest, and (iii) leaves open ample avenues of communication . 1 None of the cases cited by appellant support their argument that Staffs decision should be overturned as having a"chilling effect on Mr. Sher's use of his own home". In the cases where the city's ordinances where overturned the facts were not on point--certain vague classes of charities throughout an entire city were subject a single set of regulations(Hillman v. Britten (1960) 111 Cal.3d 810), certain classes of signs were proscribed while others were allowed (Gonzales v. Superior Court (1986) 180 Cal.App.1116), the zoning regulations applied to satellite antennas, barred by the FCC (Hunter v. Whither) or the regulation was not"content neutral" City of Imperial Beach v, Escott (1981)115 Ca.App.3d 134). Moreover, in Rodriguez v, Solis (1991) 1 Cal.App.40 495)a zoning ordinance barring all signs from certain locations was upheld as a valid time, place and manner ordinance. Coventry Neighborhood Grottp: Ltr to Board of Supervisors for September 25:2001 hewing . 4 JLi .L'i.LYJYJI C_-LJrI'1 1'IHM1zUL11`I & 1:i1H 11.1-1 I`IU,4d:) t .b/r (Supra at p. 365) Examples of legislation deemed by the California Supreme Court as"content neutral" and thus subject only to the"intermediate scrutiny" time, place and manner test are new York City's Central Part sound amplification restrictions, .(Supra at p. 367) Thus, the R-6 zoning now at issue, which determines without reference to viewpoint or content which activities are permitted, qualifies for the intermediate scrutiny test. B. Both the California and United States Supreme Courts apply "appropriate balancing" of free speech interests against individual and property rights. Following the lead of Supreme Court Judge Oliver Wendell Holmes famous limitation of free speech rights when balanced against public safety, "[t]he most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic," (Schenck v. United States (1919) 249 U.S. 47,52), both California and the United States Supreme Courts have felt it appropriate to balance the free speech interests against the "the property and privacy rights" of individuals, Robins v, Pruneyard Shopping Center(1979)23 Cal.3d 899,910) Free speech expression cannot be barred in a shopping center open to the public, but it can be barred when the rights of an individual homeowner are at issue, (Ibid.) While appellant has the right within his own home to conduct political or charitable activities, when those activities invade the privacy, property and safety of his neighbors, then those activities are properly the subject of time, place and manner regulations. (See Golden Gateway Center v, Golden Gateway Tenants Assn. (CDOS 7627, August 30, 2001)2. CONCLUSION The Coventry Neighborhood Group respectfully requests that the Board of Supervisors UPHOLD the decision of the Community Development Department that Mr. Scher's proposed use of the newly constructed stage and amphitheater at 500 Coventry Road does not constitute a legal non-conforming use and deny Mr, Scher's appeal, We also concur with the Community Development Department's analysis that what is at issue is a content neutral zoning decision and a First Amendment issue. Z In an August 31, 2001 letter to this Board,the American Civil Liberties Union (ACLU), BARK Chapter urged the rejection of"any ruling on this matter that would effectively prohibit al citizens from gathering in the privacy of their own home for personal, political or charitable purposes that include fundraising." Upholding Community Development Staffs decision in this case would not curtail those activities so long as they are within a private home, not Imposed, though loudspeakers in an outdoor amphitheater, upon an entire residential neighborhood The limitations at issue regulate only the time, place, and manner of all such proscribed conduct, not lust"protected"speech. Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing , 5 qtr.c4.GlJJl c c4r I I'IHKIoULII`1 5c b1H 11,11 NU.4.= r. f/ On behalf of the Coventry Neighborhood Group, I wish to thank the Board of Supervisors and the Community Development Department for their time and attention to this extremely important matter. Very truly yours, Rena Rickles Cc: Coventry Neighbors Group Diana Silver, Deputy County Counsel Catherine Kutsuris, Deputy Director Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 6 Kensington Police Department CASE REPORT Case-no : 2001.-0966 --=- --- - -- -- - - -- - - - --- ----CASE INFORMATION == ==_- _ Code Sections - 1. 2 : 3 9: Incident Type: NOISE COMPLAINTS Level _— Beat : Location. : 500 C01%,EN'.1.-RY R.L.,KEI,ISINGI-CN_, CA. 94707 �. Received Date/Time :. ;;_18.20_01/1749 HOURS SYNOPSIS : Dom.Viol . El RP REPORTS-IIEARFNG AMPLIFIED MUSIC COMING FROM THE ABOVE ADDRESS. I RESPONDED TO THE ADDRESS AND CONTACTED THE ON NER. I COULD HEAR AMPLIFIED MUSIC FAINTLY WHEN I REACHED THE DRIVEWAY OF THE RESIDENCE. THE MUSIC WAS BEING PLAYED ON THE PROPERTY. THI R.E WAS A VIBRAPHONE AND A GUITAR BEING PLAYED SOFTLY THROUGH SPEAKERS TO NUMEROUS GUESTS. THE OWNER STATED TI-1E.1'A.RTY AND THE MUSIC WOULD BE OVER AT 1900 HOURS. NOTI-I.ING FURTHER. Involvement:Arrest ce, Business, D:_-ver, owner, Parent, Reporting Parlay, Resident, Suspect., Victim, Other Involvement --------------------------------------------------------------------------------- ------------------------------- *Inv: * REPORTING PARTY DOB 5-9-194: AGE �. Name : GROOM.JOAN K.. _ c A.ddr : 464 COVENTRY.RD.,KENSINCTON CA.,94707 Phone : 52 -6321 Sex. : F Race :. _ Hat : WQt : Ha.ir- : Eyes : _--- Misc . lnfo : -- -- — DL#/St : - ---- SSNV: - - f As--rest # --- Charges : _ *Inv: * O\i%NER lil 19-]951 - -- AGE ====_ Name : DOB.: SCIII I:,llANIEL i-. ----- A d d r : 500 COVENTRYD.,ll.,K.ENSFNGT , C,x.,#4707 Y Phone : 526-65 11 Sex : M Race_ I``—T-3.9 t c I �dgt : _—Haig- : Eyes : Misc . Info : ---- -- ISL#�/St : SS14 Arrest # : _-Ch.-Irges : — *Inv: * Name - DOB : AGE : Add.r : Ph.one : Sex : _ Race : Hgt : Wqt : }-lai-r : _ Eyes : Misc . info : DLII/St : SSN# : Arrest ##. : Charges : ** VEHICLE #1 : License : Yr : Make : Model : Reg. Owner : — 13odv : Color : Reg . Address : Comments : Further Yes Taction : a No Reporting Of_-fi r : OR. HULL K17 PD Disposition : _ CLOSED Approved By : %'F- Datom-e : O G - 0. ,° bo t`y 3 a.�.csias°�° '� r < , c o ccs v _ .. cCM a�. � oL a G u.V'y. a tn two Cd �° U v o cd X 0 3 c v G C.. U ce'.�+ �'� o to 'tic. �, o a�.aas_.-:•_ ,.. ,Z o Ns�s� cs•— csCa 0 — .� v 0- i •o u � ,,.'°-� ... mac• '' °� �'::.os� 0 CL � a - _ � � �� 7 Kensington Improvement Club 103 Highland Blvd. Kensington, Ca. 94708 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 membership includes over 700 households. Periodically the KIC Board takes a position on matters affecting the public interest, such as the appeal of Mr. D. Scher from the decision of the Cori-anuiirty Dev,zlopnient..Depantment denying permission to Mr. Scher for use of an amphitheatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct, and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road area; indeed, almost all of Kensington is zoned as R-6, residential property. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in every respect, notwithstanding that the applicant may intend to turn net profits over to various charities. We understand that advertising,advance ticket sales, and service of alcoholic drinks to audiences of tip to 250 people at a time are intended to occur at the proposed events. Such use, if approved, would set.a precedent that would affect our entire community. Along that area of Coventry there are no sidewalks, and in some places, two cars can pass each other only with great difficulty if there are any cars parked on the road. Although Mr. Scher may make many representations regarding what he will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area, it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cannot effectively prohibit attendees from traveling to the site by car, nor can he guarantee their conduct,whether they have been drinking alcohol or not. If there is art emergency, the difficulty in getting emergency vehicles and personnel to the area could be substantially increased. The amphitheatre is located in a canyon, and even unaniplifred sound echoes through and up the slope. That segment of Coventry Road(and its surrounds)is extremely quiet and beautiful. Moreover, the community at large would be adversely A fected by such noise. Should an eleemosynary use permit be requested, the KIC Board believes that the very sarne issues which 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 Community Development Department,and in so doing,preserve the integrity of the zoning process. This process has protected all of Kensington's residents including those of the dignified and beautiful Coventry Road area. Very truly yours, Linda G.Lipscomb Gloria Morrison Board.President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Dir.,Community Development Department Catherine Kutsuris,Deputy Dir.,Community Development Department .Aruna Bhat,Planning Division Manager,Community Development Department ptember 11, 2001 9:29 AM From: G. Morrison Fax Number: 510.525.7 81 Page 2 of 2 / Cfw �3 Kensington Improvement Club 103 Highland Blvd. Kensington,Ca. 9470S 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, IC[C is the oldest civic organization in our community and our membership includes over 700 households. Periodically the KIC Board takes a position on matters affecting the public interest,such as the appeal of Mr. D. Scher from the decision of the Community Development Department denying permission to Mr. Scher for use of an amphitheatre at his residence located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community Development Department denying such permission was and is correct,and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road area, indeed,almost all of Kensington is zoned as R-6,residential property. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in every respect,notwithstanding that the applicant may intend to tum net profits over to various charities. We understand that advertising,advance ticket sales,and service of alcoholic drinks to audiences of up to 250 people at a time are intended to occur at the proposed events. Such use,if approved,would set a precedent that would affect our entire community. Along that area of Coventry there are no sidewalks,and in some places,two cars can pass each other only with great difficulty if there are any cars parked on the road. Although Mr. Scher may make many representations regarding what he will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area,it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cannot effectively prohibit attendees from traveling to the site by car,nor can he guarantee their conduct,whether they have been drinking alcohol or not. If there is an emergency,the difficulty in getting emergency vehicles and personnel to the area could be substantially increased. The amphitheatre is located in a canyon,and even unamplified sound echoes through and up the slope. That segment of Coventry Road(and its surrounds)is extremely quiet and beautiful. Moreover,the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested,the KIC Board believes that the very same issues which 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 Community Development Department,and in so doing,preserve the integrity of the zoning process. This process has protected all of Kensington's residents including those of the dignified and beautiful Coventry Road area. Very truly yours, Linda G.Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Dir.,Community Development Department Catherine lutsuris,Deputy Dir.,Commurdty Development Department Aruna Bhat,Planning Division Manager,Community Development Department SEP-24.2001 2:34PM MARGOLIN & BIATCH NO.435. P.2i? 0 0 RENA RICKLES ATrORNEYATLAW 1970 OROAPWAY.9UITE 1200 OAKL WP.r—A 94612 TEL;(510)452-1600 . FAYQ(510)451,4115 September 24, 2001 Chairperson Gayle B, Uilkema Members, Contra Costa Board of Supervisors C/o Clerk of the Board 651 Pine Street, Room 106 Martinez, CA 94553 Via hand delivery and facsimile Re: 500 Coventry Road, Kensington; Appeal to the Contra Costa Board of Supervisors to overturn the Community Development Department's determination that Danny Scher's planned May 20, 2001 outdoor concert at his newly constructed amphitheater did not qualify for non-conforming use status. Hearing date: September 25, 2001 Dear Chair Uilkema and Supervisors: As the attorney for the Coventry Neighborhood Group, I urge you to uphold the Community Development Department's determination that appellant's proposed use of his newly constructed 250-seat amphitheater on the property of his single-family home at 500 Coventry Road for outdoor amplified concerts and events does not constitute a legal non-conforming use in an R-6 zoned neighborhood, The issues on appeal are as follows: 1) Whether the appellant has established, through clear and convincing evidence, that his proposed use of the newly constructed flagstone and rock amphitheater with permanent seating for 250 people, amplified sound system, expanded stage and lighting system constitutes a legal non- conforming use? 2) Whether, under the language and intent of the United States and California Constitutions and the cases decided thereunder, the appellant has established that the newly constructed amphitheater's Intended use is exempt from the R-6 zoning requirements and protected by First Amendment (free speech) "narrow scrutiny"standards, if the appellant's amphitheater's events include political or charitable fundraising? The answer to both questions must be an emphatic, "NO". Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 1 SEP.24.2001 2:34PM MARGOLIN & BIATCH NO.435 P.3i7 I. LEGAL NONCONFORMING USE A. The newly constructed amphitheater and its proposed uses do not qualify as a legal non-conforming use. The property in issue, 500 Coventry Road, lies within and is subject to the R-6 single family residential standards which specifies which uses, including uses normally accessory to those uses are allowed, Uses not specifically allowed are disallowed unless appropriate permits are obtained. Or, unless appellant proves that the new construction and proposed uses qualify as a legal non-conforming use ("grandfather status") A legal non-conforming use is one, which was valid when created, but by subsequent zoning, it became invalid. (Hill v. City of Manhattan Beach(1971) 6 Cal.3d 279,285) To continue its legality, the nonconforming use must exist on the date of the new zoning and continue, uninterrupted. (ibid.) Zoning regulations, while recognizing the right to continue a non-conforming use, prohibit any expansion and contemplate the eventual elimination of such uses. California courts haveeg nerally followed a strict policy against the extension or enlargement of non-conforming uses. The purpose of zoning is to reduce and eliminate all non- conforming uses as speedily as possible. Paramount Rock Co. v. County of San Diego (1960) 180 CaLApp.2d 217,228. Changes in use which tend to enlarge or tend to make the non-conforming use more permanent are not protected. (ibid.) Repairs or alterations which make the non-conforming use more permanent are not allowed. (See Dienelt v. County of Monterey(1952) 113 CaLApp.128) where changing a walled, flagstone patio was replaced by a concrete, flagstone patio was found to be an improper change to a non-conforming use. On the property at issue, before 1988, the facts show that there was no prior on-conforming use, The testimony that you will hear and the letters submitted from neighbors who have intimate, first-hand knowledge of the property well before and since 1947, support the fact that large parties, fundraisers, and events all occurred after Mr. Scher purchased 500 Coventry Road in 1988. ( Cf. Declaration of Louise Hildebrand Klein) Before Mr. Scher purchased 500 Coventry Road, the site of the newly constructed flagstone amphitheater was a natural bowl, without permanent seating, used for small, private family gatherings, a daughter's dance recitals and two family weddings in the 1940's, To the neighbor's knowledge, from that time (the late 1940's) until Mr. Scher purchased the property in 1988, a period of four decades, the site was not used for any events. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 2 �t r.cµ.If 001 G'.d�rin MHUULIN 2& b1H I C;H NO.435 P.4/7 B. The amphitheater's new construction and its proposed uses constitute an impermissible expansion and enlargement of the original use. Over the past year, Mr. Scher constructed a 250-seat amphitheater, which includes an amplified sound system and extensive outdoor lighting. Clearly, the proposed May 20, 2001 ticketed fundraising event, which featured Louie Bellson, a world class drummer and the Hayward Swing Band, and included a one-day permit for alcohol sales, cannot be considered a mere continuation of the Hildebrand family dance recitals and weddings, Even if one assumes that the family dance recitals and weddings were not normal accessory uses, appellant has not adequately demonstrated that the property at 500 Coventry Road has been used continuously for activities that are unrelated to the normal uses of a single-family dwelling unit. The appellant's proposed use of the newly constructed stage and amphitheater, therefore, does not constitute a legal non-conforming use, and is not normally accessory or auxiliary to a detached single-family dwelling in the R-6 single family residential district. Thus, even if one were to accept the three notarized declarations by appellants witnesses as valid, the amphitheater as now constructed and proposed for use fails to meet this County's criteria for a legal non-conforming use. The 250-permanent seating, sound and light system cannot reasonably be considered a mere continuation of the Hildebrand family amphitheater. Nor could the proposed May 20, 2001 event , featuring Louie Bellson, a world-class percussionist and the Hayward Swing Band, and similar events, for whatever purpose, be considered a mere continuation of the Hildebrand family dance recitals or two family weddings. Il, APPELLANT'S FREE SPEECH RIGHTS HAVE NOT BEEN VIOLATED Appellant's proposed use of the newly constructed stage and amphitheater, which includes outdoor events including a swing band, musical concerts, with amplified sound, even if for charitable or political fundraising purposes are NOT normally accessory or auxiliary to a detached single-family dwelling in an R-6 single family residential district. Prohibiting these uses as appellant proposes to conduct them, constitutes a proper exercise of zoning and police power. Appellant's proposed use of the stage and amphitheater is not a free speech issue but rather a question of whether the proposed use of outdoor, amplified amphitheater for 250 guests, is a use normally accessory, or auxiliary to a detached single-family dwelling in an R-6 single family residential district, The determination by the Community Development Department that appellant Scher's proposed May 20, 2001 concert violated the County Code and was not allowed on that R-6 site represents permissible "content neutral' application of the County's zoning laws. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing , 3 14.1UU1 cf:JIDFJM 1`1HRGOLIN & BIATCH rio.435 P.5/7 Since the R-6 district does not specifically allow an outdoor 250-seat amphitheater, used as proposed by appellant, Scher, it is a proper exercise of the County's police power to maintain the single-family residential character of the neighborhood by holding that such a use is not permitted, A. Notwithstanding appellant's attorney's arguments,where, as here,_the zoning ordinances at issue are content neutral,there is no question of whether Mr. Scher's free speech rights have been violated. The beneficiary or purpose of Mr. Scher's proposed event was not in issue. It was not the message, verbal or musical, that was to be delivered over the amplified sound stage that was not permitted. Nor did it matter who the recipient of any funds collected may be. It was the fact of the outdoor event itself, its impact on the quiet comfort of the residential neighborhood, and the language of the County's Zoning Ordinances that was in issue. Such general regulations that control "time, place and manner" and are written and imposed without reference to a specific conduct or speech and viewpoint neutral are defined as "content neutral" and do not violate free speech. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4" 352,367,373; E.W.A.P. Inc. v. City of Los Angeles (1997)56 Cal.AppAth 325). Moreover, the Community Development Department's decision at issue did not bar political or charitable fundraising inside appellant Sher's home (or any other home for that matter). A political, charitable or social event which would not infringe upon the quiet enioyment of the neighborhood would be permitted.' Even if the events planned in his amplified, sound stage, outdoor amphitheater fall into the category of"protected" free speech conduct—political or charitable fundraising--the enforcement of the zoning ordinance that does not permit that conduct in an R-6 zone, does not in itself violate the free speech clause under either the California or United States Constitutions. (supra at p.364) California cases recognize that a regulation, even one affecting protected (free speech) conduct , is enforceable if it survives the "intermediate scrutiny" of time; place and manner analysis. (Ibid.) Legislation may be upheld as reasonable, time, place and manner so long as it is (1) narrowly tailored; (2)serves a significant government interest, and (iii) leaves open ample avenues of communication . 1 None of the cases cited by appellant support their argument that Staffs decision should be overturned as having a"chilling effect on Mr. Sher's use of his own home". In the cases where the city's ordinances where overturned the facts were not on point--certain vague classes of charities throughout an entire city were subject a single set of regulations(Hillman v. Britten (1980) 111 Cal.3d 810), certain classes of signs were proscribed while others were allowed (Gonzales v. Superior Court (1966) 180 Cal.App.1116), the zoning regulations applied to satellite antennas, barred by the FCC (Hunter v. Whittier) or the regulation was not"content neutral" City of Imperial Beach v. Escott (1961)115 Ca.App.3d 134). Moreover, in Rodriguez v, Solis (1991) 1 Cal.App.46'495)a zoning ordinance barring all signs from certain locations was upheld as a valid time, place and manner ordinance. Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 4 SEP.24.2001 2:36PM MARGOLIN & BIATCH NO.435 P.6i7 (Supra at p. 365) Examples of legislation deemed by the California Supreme Court as "content neutral" and thus subject only to the "intermediate scrutiny" time, place and manner test are new York City's Central Part sound amplification restrictions, (Supra at p. 367) Thus, the R-6 zoning now at issue, which determines without reference to viewpoint or content which activities are permitted, qualifies for the intermediate scrutiny test. B. Both the California and United States Supreme Courts apply "appropriate balancing" of free speech interests against individual and property rights. Following the lead of Supreme Court Judge Oliver Wendell Holmes famous limitation of free speech rights when balanced against public safety, "[t]he most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic," (Schenck v. United States (1919) 249 U.S. 47,52), both California and the United States Supreme Courts have felt it appropriate to balance the free speech interests against the"the property and privacy rights" of individuals. Robins v, Pruneyard Shopping Center(1979)23 Ce0d 899,910) Free speech expression cannot be barred in a shopping center open to the public, but it can be barred when the rights of an individual homeowner are at issue, (Ibid.) While appellant has the right within his own home to conduct political or charitable activities, when those activities invade the privacy, property and safety of his neighbors, then those activities are properly the subject of time, place and manner regulations. (See Golden Gateway Center v. Golden Gateway Tenants Assn. (CDOS 7627, August 30, 2001)2. CONCLUSION The Coventry Neighborhood Group respectfully requests that the Board of Supervisors UPHOLD the decision of the Community Development Department that Mr. Scher's proposed use of the newly constructed stage and amphitheater at 500 Coventry Road does not constitute a legal non-conforming use and deny Mr, Scher's appeal, We also concur with the Community Development Department's analysis that what is at issue is a content neutral zoning decision and a First Amendment issue. 2 In an August 31,2001 letter to this Board, the American Civil Liberfles Union (ACLU), BARK Chapter urged the rejection of"any ruling on this matter that would effectively prohibit al citizens from gathering in the privacy of their own home for personal, political or charitable purposes that include fundralsing." Upholding Community Development Staffs decision in this case would not curtail those activities so long as they are within anavate home. not Imposed, though loudspeakers in an outdoor amphitheater, uponan entire residential neiclhborhood. The limitations at issue regulate only the time, place, and manner of all such proscribed conduct, not iust"protected"speech. Coventry Neighborhood Group; Ltr to Board of Supervisors for September 25,2001 hearing, 5 J .I".G4.CYJVJl C•Jb'I'I I'IHKIVLlIY & I71H I lrl"1 IYV.'i.7J f !�! On behalf of the Coventry Neighborhood Group, I wish to thank the Board of Supervisors and the Community Development Department for their time and attention to this extremely important matter. Very truly yours, Rena Rickles Cc: Coventry Neighbors Group Diana Silver, Deputy County Counsel Catherine Kutsuris, Deputy Director Coventry Neighborhood Group: Ltr to Board of Supervisors for September 25,2001 hearing. 6 July 24, 2001 Coventry Neighborhood Group's Position: • Commercial-type concerts should not be allowed at Mr Scher's recently built 250 seat outdoor amphitheater at his property at 500 Coventry Ave., Kensington. • Contra Costa Development Department's determination that Mr. Scher not be granted legal non-conforming>,use status (grand fathering) should be upheld. Grand-Fathering is not supportable. Contra Costa County Board of Supervisors should deny Mr. Scher's appeal to overturn the Development Department's determination. • None of Kensington residents should be subjected to any outdoor commercial-type concerts in any of its neighborhood areas zoned R-6 (residential property.) Commercial-type events are totally inappropriate for Kensington's otherwise quiet and peaceful residential neighborhoods. Granting of any permits for such concerts would set a precedent that would negatively effect our entire community. • Mr. Scher should seek a more appropriate venue for his concerts. If Mr. Scher wishes to be permitted to hold his planned concerts on his property, he should be directed to submit a request to the Community Development Department for a land use permit so that it can be subjected to the normal review process, including a.Kensington Municipal Council review at which Kensington community residents could be heard. • In a letter to Supervisor John Gioia, sixty nearby neighbors of 500 Coventry Rd. have expressed their opposition to commercial-type concerts in their neighborhood. The Coventry Neighborhood Group believes that Kensington leaders and residents support that same position for any of Kensington's "Zoned R-6 (residential) areas. In addition, nearby Berkeley residents support this position because of the affects such Kensington concerts would have on their otherwise quiet neighborhood. Neighborhood Concerns: • Increased levels of noise from amplified music and from concert attendees • Excessive nighttime illumination • Potential sanitation problems for large crowds • Traffic congestion& parking(legal & otherwise) on our narrow streets • 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.) ThousanaVaks Neighbouhoob Asociation P.O. Box 7-174, Beukeley, CA 94707 S10-SQS-6874 July 5, 2001 Honorable John Gioia Supervisor, District One Contra Costa County 11780 San Pablo El Cerrito, CA 94530 Dear Supervisor Gioia: I am writing in behalf of Berkeley residents who have complained about the amplified events at 500 Coventry Road, Kensington. As you know, that property abuts a canyon that runs along the Kensington-Berkeley border. The Thousand Oaks Neighborhood Association (TONA) serves 1800 households in north Berkeley, including those residing near the canyon. The TONA Board recently met with the property owner at 500 Coventry and toured the site. Subsequently the Board met with Kensington and Berkeley neighbors of the property in question. The TONA Board is concerned that the high level of amplified sound from 500 Coventry Road adversely affects the quality of life of nearby Berkeley residents. We are hoping that Contra Costa authorities will address this issue with dispatch. Thank you for your consideration. Sincerely, Zelda Bronstein, President TONA cc: Aruna Baht Bob Giusti Miriam Hawley Patti Gildersleeve Jennifer Russell Danny Scher 09/10/01 08:01 $510 528 9125 Edward viexmann EDWARD F. DIEKMANN 44 Kingston Road Kensington. CA 94707 September 10, 2001 Supervisor John Gioia 100 - 37th Street, Room 270 Richmond, CA 94805 Re: Stage and Amphitheater 500 Coventry Road Kensington, California Dear Supervisor Gioia: We understand that the proposal by Mr. Danny Scher to have live concerts on a stage in an amphitheater at his residence at 500 Coventry Road was denied by the Community Development Department and an appeal is pending before the Board of Supervisors. The residence at 500 Coventry is in a residential area in which concerts involving periodically the attendance of several hundred people would be totally inappropriate. Quite apart from the problems of amplified music, supplying sanitation facilities and policing the attendance — such concerts are notorious for attracting significant "gate crashers" — there is an over-riding concern about parking and the attendant safety risks. Kensington is known for its narrow and sometimes winding streets and Coventry Road is among the most narrow and is the most winding street in Kensington. A drive along Coventry day or night will reveal a dearth of parking spaces for even the residents. There are no spare parking spaces and it is absurd to contemplate permitting concert attendees to come onto the street and the surrounding neighborhood. We urge you to vote to deny the appeal. Very truly yours, Mr. and Mrs. Edward F. Diskmann cc: Catherine Katsuris, Deputy Director Community Development Department Supervisor John Gioia 100 37th St. Room 270 Richmond, CA 94805 Dear Supervisor Gioia, 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. diffig It to hold a conversation on our deck or to sleep at 'hight.. Now I am appalled to hear that Danny Scher, formerly of Bill Graham presents, wants to subject Kensington residents to outdoor, fully amplified concerts at 500 Coventry Road. This is clearly an invasion of privacy and breaks all residential zoning -,1.aW.s I commend. the Supervisors for turning 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 COMMERCIAL AND BENEFIT CONCERTS IN OUR NEIGHBORHOOD" . I cannot imagine the traffic and parking problems it would involve. You are our governmental leaders, as we have no city council . The County has always been fair and abided by the zoning. in, Ken- sington. Please do it again.. CAially, Joan M. Haber 86 Norwood Ave. Kensington, 94707 510-526-7205 cc Dennis Berry Community Development Director County Administrator 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 Udkma; 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 recently constructed amphitheater and its planned use at his property at 500 Coventry Rd., Kensington, CA. Mr. Scher has filed an appeal with the Contra Costa County Board of Supervisors to overturn a ruling by the Contra Costa County Community Development Department which has denied him a legal non-conforming use permit to conduct concerts at that site. We have been informed by-that department that a hearing on this appeal will be scheduled for 1:00 PM on July 17, 2001 at the Board of Supervisor's meeting. We, who are Kensington residents and neighbors of Mr. Scher wish you to know our position on this matter. r Mr. Scher contends that he is entitled to a non-conforming use permit (grand-fathering)based on his claim that the concerts which he intends to hold at his new 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 whose 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 following concerns: - increased levels of noise from amplified music and from concert attendees - excessive night-time illumination - potential sanitation problems for large crowds -traffic congestion& parking(legal & otherwise) on our narrow streets Continued �ti� -Shti� June 26, 2001 letter 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, we 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: Es COVE,JIfly R�� K iVsI June 26, 2001 letter to Supervisor John Gioia continued SIGNATURES: ADDRESSES.-. %qo 6A _rA q'29-1 gue LC . r 3(04 S June 26, 2001 letter to Supervisor John Gioia continued SIGNATURES: ' ADDRESSES: 51c) C—ou-e, t,, to NSA i z C.� L ao .Co � l LI � kcn:5 Zeracc AN;/ f I � S . 6 "Auj cf- � 0 June 26, 2001 letter to Supervisor John Gioia continued SIGNATURES: ADDRESSES: A )?7 celz d, MOZ, Ild ,Is RIC t-I C i�? j r . July 3, 2001 John Gioia Contra Costa County Supervisor District 1, District Office 11780 San Pablo Avenue EI Cerrito, CA 94530 Re: Danny Scher, 500 Coventry Road, Permit for Concerts Dear John Gioia: I wish to express my opposition to the board granting a permit to Mr. Scher to provide concerts on his property. Music travels far in this quiet neighborhood. The Kensington "Outlook" publishes the police report showing how many times the KPI) has to make calls for people to turn down their stereos. And this would be a full- fledged concert. Also after about twenty years, the night football games at EI Cerrito High School were terminated a few years ago because of the noise. Whereas noise would be a concern, I think the traffic problem would be even greater. Coventry Road, the main connection from upper to lower Kensington, is a very winding road. Most of it does not have sidewalks or curbs. The gutters are a foot (12") to a foot and a half (18") deep. Any front wheel drive car that strays off the roadway requires a tow truck to get it out of the gutters. Parking is limited to one side of the street but is violated at times when crowds are present. This impedes the ambulance &fire department to get up and down the hill on Coventry Road. In fact, when the trucks carrying the rocks and flagstones for Mr. Sher's project were using Coventry Road to make deliveries, Coventry was closed at Ocean View Avenue so the trucks could make it up the hill. The road was so narrow and winding that long bed trucks needed the whole road to navigate. With the proposal of filling the amphitheater, seating 300-500 people, this would create an impossible traffic situation, as well as a parking nightmare. I am enclosing a print of a geodetic map, which clearly shows what a difficult location Coventry Road is. Notice the steepness and the sharp turns as well as lack of any passing zones on Coventry Road. Please for the safety and comfort of the neighborhood, oppose this application at the July 17, 2001 meeting. Sincerely, Ivan R. Utter 155 Ardmore Road Kensington, CA 94707 510-526-4279 Enclosure (1) ���\ '..I '+ 'S��c'_ .•�i Jl\,�...� i-' '`•:>..;S..`� �l�L`` ����1( `I' f(I 5 I 5 ' '!ill(..,�;,�` 2l,�:��\ ,� —. V; :�1 VA ��'�-!, '__�= �� >. - �� ,\ .:�• \�"\ � '\\\\ ! �, ..ti Ill./'�.` %11f C.-�� .-,=r^:r`=�, �.\ - 274 T Wl View IV, �� � 1 _a� ` �Il,r 9R1 1��..\-... f 1. � '.1 �J i J • ,� \ ,✓ / ��. \ �!: � ]� �ert•i�o H� It 7 � �1,/'� `,-''"•��` f � •'�, ) � L.;��• rt �l1 � � U m i -- Jog% L � �'•�1�- �' . \ \ y\ ���.: ,I,�' � { � 1 .-Lt.{ �s��� ' �i �1• _..\., rte'.---0 � , J( �\\� !_ i; r � � `, San'' .,I, � ,l / � `., f ! ' •�, ` �. \\\� ��* � :. din \ ,l i trat!o l�ri o � I'�, ', 5 �' �'•..\ � ,�s� � �=>> ^� l 1 , r o , CD CD N (n rnrju \ : ,. C -n .i, n \ 1:. O CD ":. cl CL ra , O o — 1 ti , ,4 w: s o> tj - D �ST n , 7-05-2001 1 -44PM FROM DANSUN PRODUCTIONS 510 526 6622 P_ 1 Danny Scher 500 Coventry Rd_ Kensington,Ca 94707 (510)526-6511 (510)526-6522 FAX Mr.John Sweemen Clerk f the Board Contra Costa County 651 Pine St. Martinez, CA 94553 (925)335-1913 FAX July 5, 2001 Re: Request for Continuance Dear Mr. Sweeten: This is to request a continuance for the matter of conducting charitable events at my house at 500 Coventry Rd.,Kensington,CA 94707. This matter was scheduled for the July 17,2001 meeting at 1:30 pm in the Board's Chambers. I would appreciate your confirmation of this Request for Continuance_ Regards, Danny Scher Cc:John Gioia, Supervisor Ed Shaffer,Archer Norris Kensington Improvement Club 103 Highland Blvd. Kensington, Ca. 94708 June 21, 2001 ED John Gioia, Supervisor District 1 Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D EI 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-membership includes over 700 households. Periodically the KIC Board takes a position on matters affecting the public interest, such as the appeal of Mr. D. Scher from the decision of the Comimmunity Dcvc'.opme..t Department& ying permission to Mr. Scher for use.of an aiiiphitheatre at his residence -located at 500 Coventry Road as a legal non-conforming use. The KIC Board believes that the decision of the Community ..Development Department denying such permission was and is correct, and that such denial should be affirmed by the Board of Supervisors on the pending appeal. The Coventry Road area, indeed, almost all of Kensington is zoned as R-6, residential property. The proposed use of the newly constructed amphitheatre for concerts appears to be commercial in every respect, notwithstanding that the applicant may intend to turn net profits over to various charities. We understand that advertising,advance ticket sales,and service of alcoholic drinks to audiences of up to 250 people at a time are intended to occur at the proposed events. Such use, if approved, would set a precedent that would affect our entire community. Along that area of Coventry there are no sidewalks, and in some places, two cars can pass each other only with great difficulty if there are any cars parked on the road. Although Mr. Scher may make many representations regarding what lie will try to do to ameliorate the profoundly negative impact of a deluge of people in such a small area, it is unlikely such efforts could avoid the imposition of an extraordinary burden upon neighbors. Mr. Scher cannot effectively prohibit attendees from traveling to the site by car, nor can he guarantee their conduct, whether they have been drinking alcohol or not. If there is an emergency, the difficulty in getting emergency vehicles and personnel to the area could be substantially increased. The amphitheatre is located in a canyon, and even unamplified sound echoes through and up the slope. That segment of Coventry Road(and its surrounds) is extremely quiet and beautiful. Moreover, the community at large would be adversely affected by such noise. Should an eleemosynary use permit be requested, the KIC Board believes that the very same issues which 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 Community Development Department, and in so doing, preserve the integrity of the zoning process. This process has protected all of Kensington's residents including those of the dignified and beautifdl,Coventry Road area. Very truly yours, yJ Linda G. Lipscomb Gloria Morrison Board President Board President Elect cc: Federal Glover,Supervisor District 5 Mark DeSaulnier,Supervisor District 4 Donna Gerber,Supervisor District 3 Gayle Uilkema,Supervisor District 2 Dennis Barry,Dir.,Community Development Department Catherine Kutsuris,Deputy Dir.,Community Development Department ,¢ Aruna Bhat,Planning Division Manager,Community Development Department '✓OS ecc�Ao r Y ,� r �, ,, '1, �, 1 • l �t l �� .�. �, ,� 1 '.i 1 1 ,, ,` �` ,i �i '', ,� ;11 '� ,, �, i �� '. 1 .. • . �,' ��. ,i i ,' 1 ;1 11 ii Cd ri U —'4 V ct3 ct Q) 00 C > C\ bA Cf; The Board of SuperAorsContra John Sweeten Clerk of the Board County Administration Building Costa and J County Administrator 651 Pine Street, Room 106 (925)335-1900 Martinez,California 94553-1293 County John Gioia, 1st District ti r- c Gayle B.Uilkema,2nd District Donna Gerber,3rd District Mark DeSaulnier,4th District Federal D.Glover,5th District A,,�:>-:=�.-,. • rr^� cciii�t' . June 27, 2001 Mr. Danny Scher 500 Coventry Road Kensington CA 94707 Dear Mr. Scher, Pursuant to Section 14-4.006 of the County Ordinance Code, notice is given that July 17, 2001, at 1:30 p.m., at 651 Pine Street, Room 107, (the Board's Chambers)Martinez, California, has been set as the time and place for the hearing by the Board of Supervisors of your appeal from the decision of the Community Development Department. The use of the stage and amphitheater for musical concerts which is not a legal non-confirming use on the property located at 500 Coventry Road, Kensington, Ca. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County, at or prior to the public hearing. Very truly yours, JOHN SWEETEN, Clerk of the Board of Supervisors and County Administrator By: t� W,,(, / l Danielle Kelly, Deputy Cler cc: County Counsel County Administrator Community Development BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA AFFIDAVIT OF MAILING IN THE MATTER OF ) ADMINISTRATIVE APPEAL OF DANNY SCHER ) Re: Amphitheatre and Stage ) 500 Coventry Road ) Kensington CA 94707 ) Re: Amphitheatre and-Stage ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been, a citizen of the United States, over age 18; and that today I deposited with Contra Costa County Central Service for mailing in the United States Postal Service in Martinez, California, first class postage fully prepaid, a copy of the hearing notice in the above matter to the following: Gregory Look LoriSun-Look 1734 Lemonwood Drive Concord CA 94519 I declare under penalty of perjury that the foregoing is true and correct., Martinez, CA. Date: July 5, 2001 Danielle Kelly, Deputy Clef* BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA AFFIDAVIT OF MAILING IN THE MATTER OF ) ADMINISTRATIVE APPEAL OF DANNY SCHER ) Re: Amphitheater and Stage ) 500 Coventry Road ) Kensington CA 94707 ) Re: Amphitheater and Stage ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been, a citizen of the United States, over age 18; and that today I deposited mail in the mail box at 651 Pine Street, Martinez, California for mailing in the United States Postal Service, first class postage fully prepaid, a copy of the hearing notice in the above matter to the following: James M. Carman 118 Windsor Ave. Kensington CA 94708-1043 Jean Kukulan Reilly 554 Coventry Rd. Berkeley CA 94707 Robert Giusti 112 Willow Lane Kensington CA 94707 Joan K. Groon 464 Coventry Rd. Kensington CA 94707 Joan M.Haber 86 Norwood Ave. Kensington CA 94707 Edward Shaffer Archer Norris 2033 N.Main St., Suite 800 Walnut Creek CA 94596 J.Folger-Brown&Timothy Hoyer 555 Coventry Rd. Kensington CA 94707 Linnea Due 2 Kenilworth Ct. Kensington CA 94707 George&Gloria Kwei 10 Kenilworth Ct. Kensington CA 94707 I declare under penalty of perjury that the foregoing is true and correct, Martinez, CA. Date: June 27, 2001 W, �1(,& J G Deputy Clerk, Danielle KC0y as w�m a" Cly►m m' a . a C� 1 � �: �•s C n E{�'4 d r h IZZIN :. vl% BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA AFFIDAVIT OF MAILING IN THE MATTER OF ) ADMINISTRATIVE APPEAL OF DANNY SCHER ) Re: Amphitheater and Stage ) 500 Coventry Road ) Kensington CA 94707 ) Re: Amphitheater and Stage ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been, a citizen of the United States, over age 18; and that today I deposited mail in the mail box at 651 Pine Street, Martinez, California for mailing in the United States Postal Service, first class postage fully prepaid, a copy of the hearing notice in the above matter to the following: Danny Scher 500 Coventry Road. Kensington CA 94707 I declare under penalty of perjury that the foregoing is true and correct, Martinez, CA. Date: June 27, 2001 Danielle Kelly, Deputy Clerkj James M. Carman V/ Jean Kukulan Reilly w / Robert Giusti 118 Windsor Ave. 554 Coventry Rd. v 112 Willow Lane Kensington, CA 94708-1043 Berkeley, CA 94707 Kensington, CA 94707 Joan K. Groon �' Joan M. Haber / Danny Scher -✓ 464 Coventry Rd 86 Norwood Ave. ✓ 500 Coventry Rd Kensington, CA 94707 Kensington, CA 94707 Kensington, CA 94707 Edward Shaffer J. Folger-Brown & Timothy Hoyer Linnea Due Archer Norris 555 Covent Road 2 Kenilworth Ct 2033 N. Main St., Suite 800 Coventry Walnut Creek, CA 94596 Kensington, CA 94707 '� Kensington, CA 94707 George & Gloria Kwei 10 Kenilworth Ct Kensington, CA 904707 t R� rt e..i 9-4=> t1�4!: o r sus - stt-�--1 1 •Z t a- w; �i o-w L,.�.�e. �,..d — i c 94 1 o T ,t I� � s FOR »� d ATE TIM�'� M M OF ' PHONE / FAX ------------- MESSAGE F1TELEPHi)iVED RETURNED YOUR CALL A.M. PLEASE CALL P.M. Vo 0 iffle, WILL ALLAGAIN CAME TO SEE YOU WANTS TO SEE YOU SIGNED ttsa EPHONED IJ RETURNED YOUR CALL F1 PLEASE CALL WILL CALL AGAIN i� T CAME TO SEE YOU y c?` * ❑WANTS TO SEE YOU SIGNED ttsa 1 .......... ...................................... ..... . ..--- i I I ARCHER NORRIS RE�E�VED 2033 North Main Street,Suite 800 O 2001 CALIFORNIA OFFICES PO Box 8035 MAY 3 Walnut Creek Walnut Creek,CA 94.596-3728 925.930.6600 OF SUPERVISORS Richmond CLERK RA COSTA Co. Ontario 925.930.6620(Fax) May 29, 2001 EDWARD L.SHAFFER eshaffer@archernorris.com 925.952.5409 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 Coventry 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 previously filed an appeal of certain decisions made by County staff. This letter is intended to elaborate on and expand the matters subject to Mr. Scher's appeal, as described below. We understand that a hearing before the Board of Supervisors has been scheduled for July 17, 2001 at. 1:00 p.m. Summary 1. Status of Amphitheater and State. Question: Does the amphitheater and stage on the property at 500 Coventry Road qualify as a legal structure on the site? Answer: 'T'hese improvements should be accepted as accessory facilities; fully legal under current County regulations. At a minimum, there is ample evidence to show that the facilities date to the 1920's and so are legal nonconforming uses. 2. Legality of Fundraising+undraisingActivities. Question: Are gatherings for political and charitable fundraising allowed without a conditional use permit? Answer: Constitutional protections of free speech allow such activities and require a Countywide ordinance rather than ad hoc decisions on individual permits. ce: A50S 01+0 Archer Norris,A Professional Law Corporation D TXELS/203589-2 r � l 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 zoning allows this property to be used to host political and charity fundraising events. This inquiry was 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 $20,000 that already had been donated by people planning to attend. Status of Stage and Amphitheater Mr. Scher received a letter from Catherine Kutsuris of the Community Development Department dated April 23rd (which by Ms. Kutsuris' own admission actually should have been dated April 27th). Ms. Kutsuris did not respond directly to Mr. Scher's request for a decision regarding the status of the stage and amphitheater. Instead, she focused almost entirely on the types of uses that may be allowed. Thus it is not clear whether staff has declared that the stage and amphitheater themselves are illegal improvements. This confusion is reinforced by a Notice To Comply dated May 3, 2001 from Greg Staffelbach of the Building Inspection Department. The order for"Corrective Action" states: Cancel any and all events that are planned for the above-referenced property. If you wish to apply for a `land use permit' 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'the stage and amphitheater are prohibited without a permit. 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 27t" 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 nonconforming improvements due to their age and the evidence provided. However, we ask the Board of Supervisors to determine that the stage and amphitheater are fully legal accessory structures on this R-6 residential property. The improvements should be free from any restrictions or cloud that may apply to being branded nonconforming. TXELS/203589-2 r 'r Contra Costa County Board of Supervisors May 29, 2001 Page 3 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 he would be charging people to attend. 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 Comply threatening him with legal action and fines if he held "any" event on his property—without clarifying what gatherings might trigger such punishment. Both the United States and California Constitutions treat soliciting funds for charity or political purposes as protected speech. The United States Supreme 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 Amendment." Schaumburg v. Citizens for a Better Environment (1980) 444 U.S. 620, 632. Charitable solicitation also is given more protection than merely commercial speech. See, Riley v. National Federation for the Blind of North Carolina(1988) 487 U.S. 781. Politically-related events also are protected by the First Amendment. See, New York Timds Co. v. Sullivan (1964) 376 U.S. 254. The ruling in Schaumburg was repeated by Hillman v Britton (1980) 111 Cal. App. 3d 810, in which the California court agreed that charitable solicitation is constitutionally protected speech. California courts have recognized that the State Constitution 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 Whittier (1989) 209 Cal. App. 3d 588, 596-97, ruled: 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 undesirable to devise specific standards to cover all conceivable variations of circumstances involving individual properties [citations]. The issue in those cases, however, was whether those standards were so impermissibly vague as to constitute an unlawful delegation of legislative authority to an administrative body or official. The approach is not the same when the property owner has independent rights which constitute a limitation upon the powers of the legislative body itself to regulate the matter. Thus, for example, when zoning restrictions operate on the property owner's e-Yercise of First Amendment rights, the court have required greater legislative specificity in order to avoid undue administrative discretion impinging on the owner's rights. [citations]. (emphasis added) TXELS/203559-2 - , ,.. .. . .;t �. .�.. ...... ... ..... - ._. �,., ;. . .,. . . �� . . .f: ... .. . ... . . . ,. ' - .. .,.. .., .,. �.. - , .,.+„� .. .. .......a ...�� � .. ..., Contra Costa County Board of Supervisors May 29, 2001 Page 4 In Rodriguez v. Solis (199 1) 1 Cal. App. 4th 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 perrnitti::g,be subject to.an ord.na:�ce 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 least intrusive imposition on constitutional rights. See, Ward v. Rock Against Racism (1989) 491 U.S. 781, Dillon v. Municipal Court(1971) 4 Cal. 3d 860, City of Indio v. Arroyo (1983) 143 Cal. App. 3d 151. The court in City of Imperial Beach v. Escott (1981) 115 Cal. App. 3d 134, struck down an ordinance requiring a conditional use permit to operate an adult bookstore, because it gave public officials too much discretion and so violated the First Amendment. The ordinance required findings such as that the proposed use "will not be detrimental to the health, safety or general welfare of persons residing or working in the vicinity ..."—which is very similar to Finding No. 1 required by Contra Costa County in County Code section 26-2.2008. The court rejected a permitting scheme that created subjective standards open to interpretation and abuse, rather than the precise "objective" measurement demanded by the First Amendment. This use permit requirement was held to be"unconstitutionally vague, overbroad, and a prior restraint against . . . protected activity." Other California and federal courts have rejected similar situations imposing open-ended use permit requirements on activities 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 controls. In the process they have infringed on the First Amendment right to solicit charitable and 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 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 the county. Every fundraiser on residential property would have to be regulated: small-scale TXELS/203589-2 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 charities. 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. Mr. Scher has held a variety of events on his,property-during,;the past 134years, both family gatherings-and fundraisers for political, religious and charitable causes— some with live entertainment and many more guests than intended for the Parkinson's Institute benefit—without once having the police called, a nuisance complaint filed, or a neighbor complaining directly. This situation has had a chilling effect on Mr. Scher's use 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 legal accessory uses of the property, cancel staff's threat of enforcement action, and direct that Mr. Scher may host charity and political fundraisers without intimidation or harassment. Sincerely, ARCHER NORRIS Edward L. Shaffer ELS:la encl. 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 Danny Scher 'rXELS/203589-2 Danny Scher • 500 Coventry Road •Kensington, CA 94707 510/526-6511 •Fax: 510/526-6522 RECIEIVEI-> May 6, 2001 MAY 7 2001 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Community Development Department Application and Permit Center Contra Costa County 651 Pine Street 2nd 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 evidence. 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 all 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, Lori 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, ✓L�?Sun-Look , Attachment It /r / Dennis M. Barry.AICP Cornvin urlity Contra Community Development Director Develbpn'lent Costa Department County -- --- -- rn. i. County Administration Building REQcd 651 Pine Street ,; i 4th Floor, North Wing '. . 7 2QOI Martinez, California 94553-0095 *�'- '> MAY `k Phone: (925) 335-121.0 PrRV ORS�« CLERK�� �OSTA CO CTRA 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 in which you request the Department's concurrence that the amphitheatre and stage located at 500 Coventry Road in Kensington is a "legal non-conforming use." The property is located in the R-6 Zoning District, which is a single family residential zoning district. We have reviewed the documents which you submitted in support of your belief that the stage and amphitheatre is a legal non-conforming use. According to the information submitted, the stage and amphitheatre have been in existence since the 1920s, built for the use of the family which owned and lived on the property. The information submitted documents a number of"events" that were held at the site. These events, however, would be those that would be considered accessory to the residential use of the property. There was no evidence submitted to support the contention that the property has been used for activities commercial in nature, such as the musical concert which you have apparently been advertising. Even if you provided documentation that the amphitheatre has been used for musical concerts/events, you would be required to show how that use has been a continuous 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: Office Hours Monday - Friday: 8:00 a.m. - 5:00 p.m. Office is closed the 1 st, 3rd & 5th Fridays of each 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 shall 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 your 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 of such a land use permit. If you decide to pursue the filing of a land use permit, you should be aware that the processing time from application to the scheduling of a public hearing is approximately four months. The Department strongly urges you to cancel your planned upcoming event. The activity is a violation of the County Code. This determination will be forwarded to the Code Enforcement Division of the Building Inspection Department for their follow-up. Should you have any questions or would like to discuss this determination in more detail, please call Aruna Bhat, a Current Planning Division Manager, at (925) 335-1219. County Code Section 14-4.002/004 provides that this decision may be appealed to the Board of Supervisors. Should you wish to file an appeal, the 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 state the facts of the case and the grounds for the appeal, including your special interest/injury. 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 administrative decisions. Sincerely, Catherine Kutsuris Deputy Director CK/bdm 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 II i CONTRA COSTA COUNTY Clerk of the Board Inter-Office Memo Date: May 25, 2001 To: Catherine Kutsuris, Deputy Director Community Development Department From: Clerk of the Board of Supervisors Danielle Kelly, Deputy Clerk Subject: Amphitheatre and Stage at 500 Coventry Road, Kensington We are in receipt of the attached administrative appeal filed by Lori Sun-Look on behalf of Danny Scher, 500 Coventry Road, Kensington from the decision of the Deputy Director of the Community Development Department regarding the zoning use. This matter was tentatively scheduled for hearing by the Board of Supervisors on July 10, 2001, at 9:00 a.m., and has been CHANGED to July 17, 2001 at 1:00 p.m., so the attorney for Mr. Scher may appear. If this matter is untimely or there is any other reason it should not be heard by the Board of Supervisors, please advise this office in writing by June 11, 2001. 1 If the appeal is to be heard, please provide the Clerk of the Board with any known addresses that should receive certified notice of the hearing. Please provide material relative to this appeal to be presented to the Board by June 18, 2001. Enclosure cc: County Counsel CAO CONTRA COSTA COUNTY Clerk of the Board Inter-Office Memo Date: May 16, 2001 To: Catherine Kutsuris, Deputy Director Community Development Department From: Clerk of the Board of Supervisors Danielle Kelly, Deputy Clerk Subject: Amphitheatre and Stage at 500 Coventry Road, Kensington We are in receipt of the attached administrative appeal filed by Lori Sun-Look on behalf of Danny Scher, 500 Coventry Road, Kensington from the decision of the Deputy Director of the Community Development Department regarding the zoning use. This matter has been tentatively scheduled for hearing by the Board of Supervisors on July 10, 2001, at 9:00 a.m. If this matter is untimely or there is any other reason it should not be heard by the Board of Supervisors, please advise this office in writing by May 28, 2001. If the appeal is to be heard, please provide the Clerk of the Board with any known addresses that should receive certified notice of the hearing. Please provide material relative to this appeal to be presented to the Board by June 11, 2001. Enclosure cc: County Counsel CAO I �� ` L Contra • Dennis M.Barry,AICP Co,'nmunity Community Development Director Development Costa - _-I Department County RECE:P�'f6_. __ 711 1 County Administration BuildingSE..t P E._.. .Vs, nOOI N MAY 651 Pine Street :if - 7 ^_ 4th Floor, North WingJ. ''` Martinez, California 94553-0095 f• , CLERK BOARD OF SUPERVISORS �\" }} `° CONTRA COSTA CO. 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 111 which you request the Department's concurrence that the arnphitheatre and stag_'e located at 500 Coventry Road in Kensington is a "legal non-conforming use." The property is located in the R-6 Zoning District, which is a sinale family residential zoning district. We have reviewed the documents which you submitted in support of your belief that the stage and amphitheatre is a legal non-conforming use. According to the information -submitted, the stage and amphitheatre have been in existence since the 1920s, built for the use of the family which owned and lived on the property. The information submitted documents a number of"events" that were held at the site. These events, however, would be those that would be considered accessory to the residential use of the property. There was no evidence submitted to support the contention that the property has been used for activities commercial in nature, such as the musical concert which you have apparently been advertising. Even if you provided docurnentation that the amphitheatre has been used for musical concerts/events, you would be required to show how that use has been a continuous 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: Office Hours Monday - Friday: 8:00 a.rn. - 5:00 p.m. Office is closed the 1 st, 3rd & 51h Fridays of each 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 shall 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 your 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 of such a land use permit. If you decide to pursue the filing of a land use permit, you should be aware that the processing time from application to the scheduling of a public hearing is approximately four months. The Department strongly urges you to cancel your planned upcoming event. The activity is a violation of the County Code. This determination will be forwarded to the Code Enforcement Division of the Building Inspection Department for their follow-up. Should you have any questions or would like to discuss this determination in more detail, please call Aruna Bhat, a Current Planning Division Manager, at (925) 335-1219. County Code Section 14-4.002/004 provides that this decision may be appealed to the Board of Supervisors. Should you wish to file an appeal, the 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 state the facts of the case and the grounds for the appeal, including your special interest/injury. 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 administrative decisions. Sincerely, Catherine Kutsuris Deputy Director CK/bdm 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 • Hearing on Danny Scher's (owner/appellant) 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 non-conforming use. The property is located at 500 Coventry Road, in the Kensington area of the County. (County file #ZI019126) (Parcel #571-160-017, & 005). I Lr.'�:�iQ;,':c%�a�'.t-.•d::J.Y� �'<7'.�:L�i,"::�,._�,^z'7q'L:;;`,'-�'�'-,",".�:;z'•er..��'�;: >�gS�,:��F.'.G�� °mak::=� •_v: is;�; +';>?,. .��y'�;1�;R:."�.."..�i:j` _a#. 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