HomeMy WebLinkAboutMINUTES - 11141995 - D.2 • E S E..L /�
°= Contra
TO: BOARD OF SUPERVISORS o' = " Costa
rdudq,d 's County
FROM: HARVEY E. BRAGDON
DIRECTOR OF COMMUNITY DEVELOPMENTUN
DATE:
DATE: November 14 , 1995
SUBJECT: Appeal by John L. Lineweaver of an Administrative Decision of the
Director of the Community Development Department that patio seating for
a restuarant falls within the description of activity other than in an
enclosed building and is not an allowable use in the P-N-B Zoning
District.
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Deny the appeal of John L. Lineweaver and uphold the administrative
decision of the Director of the Community Development Department
that patio seating for a restuarant falls within the description of
activity other than in an enclosed building and is not an allowable
ube in the P-N-B Zoning District
FISCAL IMPACT
None .
BACKGROUND/REASONS FOR RECOMMENDATIONS
The appellant is proposing to provide covered patio seating for a
restuarant tenant in the Stone Valley Shopping Center northeast of
and adjacent to the intersection of Stone Valley Road and Danville
Boulevard, in the Alamo area.
-
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITT E
APPROVE OTHER
SIGNATURE (S) :
ACTION OF BOARD ON November 14, 1995 APPROVED AS RECOMMENDED OTHER x
SEE ADDENDUM FOR BOARD ACTION
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
X UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact: Delmar Tompkins 646-2031
Orig: Community Development Department ATTESTED November 14, 1995
cc: John L. Lineweaver PHIL BATCHELOR, CLERK OF
THE BOARD OF SUPERVISORS
C� 7
CO ADMINISTRATOR
BY DEPUTY
. r
On June 9, 1995, the appellant submitted a request to determine if
an application was required to establish a covered patio dining
area for a restuarant in the Stone Valley Shopping Center. The
patio dining area was delineated by construction of a three foot
high, open slat fence constructed around portions of a covered
passageway and an open, uncovered area between buildings in the
shopping center and adjacent to the restuarant . A covered
passageway remains unobstructed along the edge of the adjacent
building. The appellant was informed that following review of the
materials, staff determined that the proposed use is considered an
outdoor use and that the provisions of the P-N-B Planned
Neighborhood Business Zoning District expressly prohibit activity
other than in an enclosed building.
In a letter received by the Community Development Department on
July 12 , 1995, the appellant requested that the Director of the
Community Development Department determine whether or not a covered
patio seating area was consistent with the provisions of the P-N-B
Zoning District . On September 22, 1995, a letter was forwarded to
the appellant stating that the proposed use was inconsistent with
the provisions of the Zoning Ordinance as they pertain to uses on
the subject parcels .
Alternatives actions for resolution of this appeal are :
1 . Deny the appeal of John L. Lineweaver and uphold the
administrative decision of the Director of the Community
Development Department that patio seating for a restuarant
falls within the description of activity other than in an
enclosed building and is not an allowable use in the P-N-B
Zoning District .
2 . Grant the appeal, determining that the outdoor patio by the
appellant is considered an enclosed building, for purposes of
interpreting the provisions of the ordinance regarding the P-
N-B Zoning District .
It should be noted that such an interpretation would be a
precedent to similar interpretations N-B Neighborhood Business
and R-B Retail Business Districts throughout the
unincorporated county.
ADDENDUM TO ITEM D. 2
NOVEMBER 14 , 1995
This is the time noticed by the Clerk of the Board for
hearing on the Administrative Appeal by John Lineweaver Diablo
Holdings, Ltd. , from the decision of the Community Development
Director relative to whether or not patio seating is consistent
with the provisions of P-N-B Zoning District, Don Jose ' s Mexican
Restaurant, Alamo area.
Dennis Barry, Community Development Department, presented
the staff report on the appeal .
The Board discussed the matter.
The public hearing was opened and the following persons
presented testimony:
John Lineweaver, P.O. Box 680, Alamo;
Jose Avelar, 3168 Danville Boulevard, Alamo;
Rene Ferland, 350 Montgomery Street, San Ramon, representing
Katherine Tunney;
Julie Millias, 100 Clearbrook Road, Antioch;
Mr. Lineweaver spoke in rebuttal .
The public hearing was closed.
The Board discussed the matter.
The public hearing was re-opened for comments from a
neighbor relative to the issue of wall height .
The Board further discussed the matter.
Supervisor Bishop expressed that she would like further
information on what the setback requirements are and she moved to
continue the matter for two weeks to clarify the matter and have
the parties reach agreement .
Supervisor Smith seconded the motion.
Mr. Barry indicated that the applicant would need to
demonstrate how they meet parking requirements for the proposed
seating, along with specifics of fence location, and the physical
configuration of the enclosed area.
Supervisor Bishop amended he motion to continue the matter
for three weeks .
IT IS BY THE BOARD ORDERED that the hearing on the above
matter is CONTINUED to 2 P.M. on December 5, 1995; and the
Community Development Department staff is DIRECTED to review and
report on concerns raised on issues including setbacks and
parking.
Diablo Holdings, Ltd.
POST OFFICE BOX 680
ALAMO,CALIFORNIA 94507 RECEIVED
(510)837-3665 - FAX(510)837-0688
UG1
['- 61995
BOARD OF SUPERVISORS
CONTRA COSTA CO.
Clerk of the Board OcToDer 6, 1995
`Contra Costa County
651 Pine Street, Suite 106 Hand Delivered
Martinez, CA 94553
Attention: Ann
RE: Administrative Appeal for 10/24 Board Meeting
9/22/95 Decision
Director of Community Development Department
Patio Seating at Don Jose's Restaurant
3168 E Danville Boulevard, Alamo, CA
APN #192-081-004-9
Gentlemen:
Please consider this my written notice of Administrative Appeal of the decision of Harvey E. Bragdon, Director,
Community Development Department, Contra Costa County, relative to his decision in determining whether of
not patio seating is consistent with the provisions of the PNB Zoning District. Enclosed find my check for
$125.00 as well as a copy of the decision, marked Exhibit A.
WE WOULD APPRECIATE YOUR SCHEDULING THIS MATTER FOR YOUR 10/24/95 BOARD MEETING.
BACKGROUND
Don Jose's Mexican Restaurant, Tenant at the referenced property, wished to establish' a patio seating area next
to their Premises, and the undersigned,as Landlord, gave them permission to erect a 3 foot fence enclosure around
a 900 square foot area contiguous to their restaurant. We were subsequently advised by Contra Costa County that
the enclosed area needed a building permit, but moreover, that the new patio seating area constituted "outdoor
seating", and that outdoor seating was not permitted in our zoning district, a PNB District. Further, we were
advised that no variance or Land Use Permit was available for PNB Zoning.
The referenced property is the only property remaining in Contra Costa County with PNB Zoning. Contra Costa
County considers the PNB zoning to be obsolete,and,in fact, Community Development initiated an effort in 1988
to re-zone the referenced property to an RB Zoning, in order to eliminate PNB from the Zoning Ordinance. The
1988 effort was opposed by the Alamo Improvement Association (AIA). Upon learning of our current zoning
conflict, I inquired if Community Development would be willing to again initiate a re-zoning effort, but was
advised that the County had no funds for same. I was advised to initiate a re-zoning effort at my own expense,
which I understand involves an initial filing fee of $6,500.00, and additional fees of up to $7,800.00, not to
mention other costs,time and great uncertainty.
Among the reasons AIA opposed the 1988 re-zoning from PNB to RB was the increased range of uses and
different permitted building heights that would be allowed under RB. Neither Don Jose's nor I am interested in
less restrictive uses, higher building elevations, or any other permissions other than the patio dining area. I only
want Don Jose's to enjoy the same competitive advantages that other Alamo food establishments enjoy in their
current zoning. However, I cannot justify spending$6,500.00-$14,300.00 on a gamble that re-zoning would be
successful.
Clerk of the Board October 6, 1995
Contra Costa County Page 2
Accordingly, since no variance is possible under PNB Zoning, and re-zoning is cost prohibitive, I asked the
Community Development Department to consider determining that the referenced patio area is technically not
outdoor seating, and I outlined my argument to Mr. Bragdon as follows:
A) The PNB Zoning Ordinance specifically states the "... businesses uses which are not maintained and
conducted wholly within enclosed buildings" are not allowed [84-50.1414(6)].
B) 'Building" is defined in the Ordinance to mean "... any structure with a roof support by columns... and
intended... (for the) enclosure of persons..." [84-4.210].
C) The word "enclosed" is not defined by County Ordinance, but is defined by Webster's New World
Dictionary to mean "surround".
D) The word "surround" is not defined in County Ordinance, but is defined in Webster's to mean "encircled
on all or nearly all sides."
E) The referenced patio area is partially covered by a roof which is supported by columns, and it is
completely enclosed ("surrounded") by a fence on three sides and a wall on the fourth side.
F) I contend, therefore, that the referenced patio seating area is conducted in a "building", and accordingly,
should be a permitted use under the PNB Zoning.
It is the aforestated argument to which Mr. Bragdon has responded with his administrative decision on 9/22/95,
a copy of which is enclosed for your reference as Exhibit A.
COMMUNITY PERSPECTIVE
In anticipation of a negative decision by the Community Development Department,the undersigned and the owner
of Don Jose's Restaurant invited to a meeting the three (3) residential neighbors whose properties are contiguous
to and could potentially be affected by noise or nuisance from patrons of the patio area at Don Jose's. At our
meeting, we inspected the patio dining area, the existing wall between the shopping center and the residential
properties, and the surrounding area. After discussion,the residential neighbors agreed that they would have no
objection to the outdoor dining area, provided that the following conditions are met:
A) The height of the existing wall between the shopping center and the residential neighbors be raised from
its current irregular height to a consistent height of 7'.
B) That live music and entertainment be restricted to two (2) nights per year.
The undersigned is prepared to raise the wall height, and the restaurant operator is in agreement with the live
music and entertainment restriction.
I also presented our situation to the Alamo Improvement Association, and many AIA Planning Committee
members attended the meeting with the neighbors. The Board of Directors of Alamo Improvement Association
has sent a letter of support for the patio dining area, with the same conditions of wall height and noise restrictions
as was reached with the neighbors. I attach a copy of their letter as Exhibit B.
I also enclose testimony of broad community support for the patio dining area, as evidenced by the attached
petitions signed by Don Jose's patrons, enclosed as group Exhibit C.
CIerk of the Board October 6, 1995
Contra Costa County Page 3
APPEAL
The grounds on which I am basing my appeal center around the issue of fairness and competitiveness. Because
of the existence of this absolutely unique and obsolete PNB Zoning at the referenced property, my tenant is
deprived of the competitive advantage that other restaurateurs in Alamo, Danville and Walnut Creek enjoy,
namely,the right to offer open-air seating. The PNB Zoning is so obsolete that it does not provide for the normal
zoning administrative routes of appeal,namely a variance or a Land Use Permit for open-air seating. Accordingly,
the only routes available to me were the costly and uncertain re-zoning route, or the "definitional" route I took
in my presentation to the Director of Community Development. I was advised that with my "definitional" route,
I would at least have this avenue of appeal to fairness before the Board of Supervisors.
I urge your decision to permit the use of the patio dining area at Don Jose's Restaurant on the basis of fairness.
Respectfully,
John L. Lineweaver
JLL/mw/gt
Enclosures
S
"1 "1 ,-_� 'C vlcxrT ri 2 C
i
Community
E. Bragdon
Community Co ILra Director of Community Development
Development Costa
Department Coup
County Administration Building
651 Pine Street
4th Floor, North Wing
Martinez, California 94553-0095
Phone: (510) 646-2031
T-----------
September 22, 1995
John L. Lineweaver EXHIBIT A
Diablo Holdings, Ltd.
P.O. Box 680
Alamo, CA 94507
RE: Patio Seating at Don Jose's Restaurant
Dear Mr. Lineweaver,
I am writing in response to your request for a determination whether or not the patio
seating you propose is consistent with the provisions of the P-N-B Zoning District. I have
reviewed the submitted materials and find that the proposed use falls within the description
of activity other than in an enclosed building and is not an allowable use in the P-N-B
Zoning District.
This administrative decision may be appealed directly to the Board of Supervisors within 30
days of this decision. To file an administrative appeal, submit a written notice, stating the
grounds for appeal, verified by your signature under penalty of perjury that it is true and
correct, and a fee of $125 to the Clerk of the Board at 651 Pine Street, First Floor,
Martinez.
*r ,
cc: Dennis Barry
Delmar Tompkins
County File #ZI957249
` EXHIBIT A
f
ALAMO MQ0VEWA 1r�t
AMOCRUON
for rffle cmiq W%
P.O. BOY,271 0 AtAMO.CMDOMA 94507 • (510)82D-MM
October$', 1995
Clerk of the Board
EXHIBIT B
Attention: Ann
Contra Costra County
651 Pine Street, Suite 106
Martinez CA 94553
Re: Alamo Improvement Association Support
Administrative Appeal
9/22/95 Decision of
Director of Community Development Department
Patio Seating at Don Jose's Restaurant
3168E Danville Boulevard
Alamo, California
APN #192-081-004-9
Gentlemen:
Some members of the Planning Committee of the Alamo Improvement Association (AIA) met at thb
referenced Premises with John L. Lineweaver, Owner, Jose Avelar, Owner of Don Jose's Restaurant,
and two of the three residential neighbors owning properties contiguous to the Shopping Center in which
the referenced Premises are a portion, to discuss the issue of patio dining therein. Based upon questions
and concerns raised and answered at that meeting, and based further on representations by Mr.
Lineweaver and Mr. Avelar, the Planning Committee has recommended to the Board of Directors of the
AIA that we support the use of the patio dining area, as referenced, on the following'conditions:
(A) That the height of the existing wall running approximately North to South between the Shopping
Center and the residential neighbors be raised from its current height to a consistent height of 7'.
(B) That live music and entertainment be restricted to two nights per year, with advance warning of
the neighbors of the two annual events planned not less than 48 hours prior thereto.
Based upon our Planning Committee presentation to our Board of Directors at our meeting of 9/14/95,
the undersigned has been authorized to write this letter of support on behalf of the Alamo Improvement
Association. If you have any questions on the foregoing, please feel free to call me at 838-2695.
Respectfully,
Jo n Henderson, Chairman
Planning Committee
EXHIBIT B
PETITION
(u,rya,e�mrim.m�>
We,the undersigned residents of Contra Costa County,feel that Don Jose's Restaurant,3168E Danville
Boulevard,Alamo,California,is being unfairly victimized by County Ordinances that prohibit use of the
outside patio dining area next to their Premises. Other merchants in downtown Alamo are permitted to
offer outdoor dining areas. We support a variance to the Ordinance affecting Don Jose's,which would
enable patrons of Don Jose's to utilize the outdoor dining area,provided appropriate sight and sound
barriers are erected between the rear of Don Jose's patio dining area and the rear yards of adjoining
residential properties.
DATE NAME (PR T) < ADDRESS S'
real
r
— / C[✓K 49,319 414,
T x/37 AJd/, Df, DeN, 4%
Vit. cA
3 -A i CA
,tro
8 I� 19S K i ✓ a N3 A R�►-�4 SL v ✓�L—
g—�- y s �e9
7
/
of
8 �0 95 M IGNAfL �`4NVER.sonf l�'Ct�RS L j� )
ICi r5 ,-t-'r� �{��'�. t �C ( �Zf��L r) 4✓(� ,��Yll 'I/C C, i
p / V)
l!
� l l q S S162 Kiev
// 2rte
4O f
� G�
// fps Si t/(,ff J",u Nd Z � C 94sa
pg 1 of 6
GROUP fXHIBIT C
..� tel►_ ..,✓T
�e �
PM, :
Cr - r r• r i r' r• r u .r r r r • r r. r • r •
- r r. • • �• r • - • r•• r r r • r-r r r •r r • r
r. - cr r' - �' • �• • r. • r .rr r • .r •
r'r r •r'
41 ,1
ON
00
POMMORM
Uff
■mp. /moi N �/ C II IML.1
r•. _. 1
® .
J
r / �� � � 1�1L•Ti►� _�I! G �iii �L'.'.��
/ ' C%L�I��/ �cw/�/ .a� • /�. / 'iii/�'1
f �
�►�����I�.�.�■ ' � ! illy :�■�"/J1��J�c1
rAl
AWAF M M WAK�A. "e-M- M_,.yell►
® � 1 M I ME
MM
iVA I
IM
Moor ,"��
"arm"��
tom./��ii ��. ����!.�.�:"■
PETITION
We,the undersigned residents of Contra Costa County,feel that Don Jose's Restaurant,3168E Danville
Boulevard,Alamo,California,is being unfairly victimized by County Ordinances that prohibit use of the
outside patio dining area next to their Premises. Other merchants in downtown Alamo are permitted to
offer outdoor dining areas. We support a variance to the Ordinance affecting Don Jose's,which would
enable patrons of Don Jose's to utilize the outdoor dining area,provided appropriate sight and sound
barriers are erected between the rear of Don Jose's patio dining area and the rear yards of adjoining
residential properties.
DATE ' NAME SPRINT) ADDRESS SIGNATURE
...... ....
G T , 34-1 ane c cc