Council Res

City Council Resolution Approving Final EIR and Use Permits

Congregation Beth El, 1301 Oxford Street

RESOLUTION NO. -N.S.

APPROVING A FINAL ENVIRONMENTAL IMPACT REPORT AND USE PERMITS FOR THE CONGREGATION BETH EL PROJECT AT 1301 OXFORD STREET

WHEREAS, Congregation Beth El (the Applicant) submitted an application for a new synagogue and associated religious school and day care facilities at 1301 Oxford Street (the Project); and,

WHEREAS, the application was complete on October 17, 1999; and,

WHEREAS, the proposed Project requires the following discretionary approvals from the City of Berkeley: a use permit for the demolition of the existing on-site structures (BMC Section 23C.08.050); a use permit for the operation of the synagogue and school (BMC Section 23D.16.030); a use permit for a height adjustment (BMC Section 23D.16.070.C), and a use permit to allow automobile parking within required yards abutting a street (BMC Section 23D.12.080.C). The Project also requires a Structural Alteration Permit issued by the Landmarks Preservation Commission (LPC) (BMC Section 3.24.200); and,

WHEREAS, the City determined that an Environmental Impact Report (EIR) was necessary under the California Environmental Quality Act (CEQA, at Public Resources Code Section 21000 et seq.), and retained the firm of Pacific Municipal Consultants (PMC) to prepare the EIR for the Project; and,

WHEREAS, PMC conducted the preparation of the EIR under the direction of City staff, and all draft products prepared by PMC were reviewed and approved by City staff; and

WHEREAS, the Notice Of Preparation of an EIR was circulated for review to the public and other agencies in February, 2000 (CEQA Guidelines Section 15082); and

WHEREAS, in March 2000, the City held a publicly noticed scoping session to receive public input on the scope of the EIR (CEQA Guidelines Section 15083); and

WHEREAS, the Draft EIR was prepared and completed. A Notice Of Completion was filed with the State OPR on July 20, 2000 (CEQA Guidelines Section 15085). The Draft EIR consists of two documents: Congregation Beth El Synagogue and School Draft Environmental Impact Report, dated July, 2000 and the Technical Appendices, dated July, 2000; and

WHEREAS, the public review period for the Draft EIR continued for 45 days, through September 8, 2000 (CEQA Guidelines Section 15087); and

WHEREAS, on August 7, 2000, the City of Berkeley Landmarks Preservation Commission met to receive public comments on the Draft EIR and on August 10, 2000, the City of Berkeley Zoning Adjustments Board (ZAB) met to receive public comments on the Draft EIR; and

WHEREAS, at the close of the public review period, City staff and PMC compiled all of the written responses on the Draft EIR and prepared Responses to Comments, all of which are contained in the Final EIR titled Congregation Beth El Synagogue and School Final Environmental Impact Report/Response to Comments, dated October 20, 2000 (CEQA Guidelines Sections 15088, 15089); and

WHEREAS, the applicant granted a 90-day extension to allow the City to certify the EIR no later than January 15, 2001 (CEQA Guidelines Section 15108; Government Code Section Section 65950(b), 65957.); and,

WHEREAS, the ZAB held properly noticed public hearings on whether to certify the EIR on November 9, and 27 and December 14, 2000; and,

WHEREAS, on December 14, 2000, the ZAB certified the Final Environmental Impact Report (FEIR) for the Congregation Beth El Project as complete (CEQA Guidelines Section 15090); and,

WHEREAS, the project application seeks permission to demolish all the structures remaining on the site, except the "small white shed" and the following facts are relevant to this permitÕs consideration: a) The Zoning Ordinance requires the approval of a Use Permit to demolish any non-residential building over 300-square feet in area; b) Two of the existing structures are of a size to require this Use Permit; c) When, at their November 19, 1990 meeting, the LPC moved to reaffirm the subject propertyÕs historic significance, their motion cited the remaining resources (including: the trees, open creek bed, and a fence) as examples and remnants of a past era but it did not cite the existing buildings as resources; d) The 1998 survey of the propertyÕs historical elements, prepared by a LPC subcommittee, identifies the "small white shack" as the only structure that should be "reused, preserved or restored" if "documentable as original"; and,

WHEREAS, the proposed demolition permit was forwarded to the LPC for review and comment as required by BMC Section 23C.08.050.C (Demolitions of Buildings Used for Commercial, Manufacturing or Community, Institutional or Other Non-residential Uses); however, the LPC did not send comment to the ZAB regarding this proposal; and,

WHEREAS, the LPC, at their meeting of March 5, 2001, denied the requested "Alteration Permit" regarding the construction of the subject project, pursuant to BMC Section 3.24.200 (Landmarks, historic districts and structures of merit--Construction, alteration or modification--Approval required) based on the finding that the proposed project was too massive for the site and would adversely affect the special character and historical nature of the site, and the LPC also determined that the project EIR was not adequate for their purpose; and,

WHEREAS, the ZAB held properly noticed public hearings on whether to approve the required use permits on January 11, 25, February 8, 22, and March 8, 2001; and,

WHEREAS, the ZAB approved Use Permit #99-10000079 on March 8, 2001; and,

WHEREAS, the Berkeley City Council, on April 24, 2001, certified for its review the above Use Permits pursuant to BMC Section 23B.32.090 (Certification of Use Permits by City Council) and appealed the decision of the LPC pursuant to BMC Section 3.24.300.A (AppealsÑProcedures requiredÑCity Council authority); and,

WHEREAS, the Berkeley City Council held duly noticed public hearings regarding the aforementioned Use Permits and Structural Alteration Permit on June 5, 26, July 16, 19, 24; and,

WHEREAS, at the public hearing before the City Council on July 24, 2001, the Applicant submitted a revised site plan for the project that relocates the parking area and driveways to the south side of Codornices Creek and makes other changes including a reduction in floor area, increase in the south side setback, and addition of a public overlook, which changes were the result of mediated discussions with representatives of a coalition of neighbors and environmental groups and are depicted on that drawing entitled "SITE PLAN/ ROOF PLAN: Supplement #11 8/24/2001" (Sheet # A2.0); and,

WHEREAS, pursuant to California Environ-mental Quality Act (CEQA) Guidelines, Section 15164, the City prepared three addenda to the Final Environmental Impact Report, dated March 6, May 30, and August 7, 2001 that evaluated revisions to the plans and clarifications regarding operations of the proposed use, which concluded that the proposed project as revised would not create any new significant impacts or substantially increase any impacts that were previously identified in the FEIR; and,

WHEREAS, the Berkeley City Council on September 13, 2001 held a duly noticed public hearing on the additional Use Permit required by the revised plan to allow automobile parking within required yards abutting a street; and,

WHEREAS, the City Council has considered the Project, the FEIR, the Addenda to the FEIR, and the information submitted in the staff reports and at the public hearings; and,

WHEREAS, changes and alterations have been incorporated into the project or will be required as conditions of approval that will avoid or substantially lessen significant impacts identified in the FEIR as described below; and,

WHEREAS, Exhibits A (Conditions of Approval) and B (Mitigation Monitoring Program) are attached hereto and are incorporated by reference as if they were fully set forth herein.

NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Berkeley:

Certifies that the FEIR for the Project has been completed in compliance with the requirements of CEQA and together with the Second and Third Addenda to the FEIR, dated May 30 and August 7 respectively, reflect the CouncilÕs independent judgment and analysis; and

Approves the following permits, based upon the affirmations and findings set forth in this resolution and subject to the Use Permit Conditions of Approval set forth in Exhibit A(attached) and to the Mitigation Monitoring Program set forth in Exhibit B (attached):

• 1. A Use Permit to construct and operate a Religious Assembly use (BMC Section 23D.16.030);

  2. A Use Permit to allow the demolition of two non-residential buildings (BMC Section 23C.08.050 A and B);

  3. A Use Permit for a height adjustment (BMC Section 23D.16.070.C);

  4. A Use Permit to allow automobile parking within required yards abutting a street (BMC Section 23D.12.080.C).

BE IT FURTHER RESOLVED, that the Berkeley City Council makes the following findings regarding potentially significant environmental impacts of the project under CEQA; measures that will mitigate the impacts to less than significant levels; changes or alterations that have been required in, or incorporated into, the project to avoid or substantially lessen these significant impacts; impacts that are not significant, and project alternatives. (CEQA Guidelines Section 15091)

FINDINGS REGARDING POTENTIAL IMPACTS AND MITIGATION MEASURES UNDER CEQA. (Parenthetical references are to the Mitigation Measures set forth in Exhibit A). (CEQA Guidelines Section 15091)

• 1. Site Access, Circulation and Parking. The proposed Project could result in congestion at the project's entrance and exits during peak drop-off and pickup times. Changes and improvements in the project design, signage, layout and operation have been incorporated into the Project which reduce this impact to less than significant. (MM 4.2-3) Rationale: Simple, low-cost improvements and operating requirements can prevent significant adverse effects associated with parking and traffic.

  2. Noise

     1. • Play Area. The predicted noise levels associated with the play area will exceed the City of Berkeley Noise Ordinance daytime noise level standard of 55 dB L50. The use of a barrier wall or reductions in the level of activities can reduce noise impacts from the Project's play area to less than significant. (MM 4.3-1) Rationale: Shielding the source of noise from off-site receptors or reducing the amount of noise generated will minimize adverse noise impacts from the Project.

        • Parking and Circulation. The Project will have on-site parking and circulation noise levels which will exceed the City of Berkeley Noise Ordinance daytime noise level standard of 55 dB L50, at the nearest residences to the north during the operation of Camp Kee Tov staging. The use of a barrier wall or changes or reductions in Camp Kee Tov staging activities can reduce noise impacts from the Project's traffic to less than significant. (MM 4.3-2) Rationale: Shielding the source of noise from off-site receptors or reducing the amount of noise generated onsite will minimize adverse noise impacts from the Project.

        • Construction. During the construction phases of the Project, noise from construction activities would add to the noise environment in the immediate Project vicinity. This impact is considered potentially significant. Changes and modifications in the Project's construction operations and scheduling can reduce impacts from construction-related noise to less than significant. (MM 4.3-3 a. through g.) Rationale: Restricting the timing of certain noise-generating activities during construction and other measures will minimize adverse noise-related impacts.

  3. Air Quality

     1. • Fine Particulate Matter. Emissions of fine particulate matter (PM10) due to construction-related activities could have a potentially significant impact. Standard dust reduction measures will reduce generation of dust during construction of the project to a level that is less than significant. (MM 4.4-1) Rationale: Sound construction management techniques can minimize adverse impacts associated with dust generation during project construction.

        • Asbestos. The demolition and removal of structures on site that may contain asbestos materials is a potentially significant impact. The release of potentially harmful amounts of asbestos can be mitigated to a level that is less than significant. (MM 4.4-2) Rationale: Compliance with current hazardous materials handling requirements will ensure that adverse impacts of asbestos contamination will be avoided.

  4. Geology and Hydrology

     1. • Groundshaking. The project site will be subject to moderate groundshaking during earthquakes. The potentially significant impacts caused by groundshaking can be mitigated to a level less than significant through application of existing City codes and requirements. Rationale: The City of BerkeleyÕs building codes are designed to minimize potential harmful effects of groundshaking.

        • Water runoff. Development of the project site will increase the rate of storm water run-off leaving site. Potentially significant impacts associated with increased storm water run-off can be mitigated to a level that is less than significant through application of well-established design and engineering. (MM 4.5-2 ) Rationale: Project-generated storm water run-off can be minimized with sound design and management of storm water run-off volumes. Further, compliance with City standards and requirements for compliance with NPDES Permit and City Stormwater Ordinance will also substantially reduce potential detrimental effects.

        • Soil Saturation. Saturation of soils under the projectÕs parking lot with stormwater runoff could cause soils under the Oxford-to-Spruce access road to become unstable. The potentially significant impacts associated with soil instability can be reduced to a less than significant level with sound engineering and design measures. (MM 4.5-3) Rationale: Drainage improvements to the project site can minimize adverse effects of soil instability.

        • On-site Erosion. Development of the project site would entail earthwork and grading. Due to the surface soil characteristics and the steep banks of Codornices Creek, the project site is subject to erosion during project construction. Project-related alterations in on-site drainage patterns during construction could compound and increase on-site erosion. (MM 4.5-4) Implementation of the mitigation measures would reduce construction-related erosion and sedimentation impacts to less-than-significant levels. Rationale: Compliance with existing requirements for erosion control can minimize erosion impacts.

        • Drainage. On-site drainage and drainage outfalls to Codornices Creek may be affected by post-development drainage from the project site. (MM 4.5-5) Implementation of the mitigation measures would reduce project erosion and sedimentation impacts to less-than-significant levels. Rationale: Sound design and engineering requirements can reduce adverse impacts associated with erosion and drainage at the project site

        • Non-point Source Pollution. The proposed project would increase the amount of suburban non-point source pollutants generated by the site during storm events, impacting the water quality of Codornices Creek, and causing a cumulative water quality impact to San Francisco Bay. (MM 4.5-6) Implementation of the mitigation measures would reduce project-generated contamination and run-off impacts to less-than-significant levels. Rationale: Sound design and engineering requirements can reduce adverse impacts associated with run-off and drainage pollutants at the project site.

  5. Biological Resources

     1. • Wall's Effect on Trees. If construction of a wall along the north property line is required for noise mitigation purposes, it could adversely affect existing mature trees. (MM 4.6-3) Implementation of the mitigation measure would reduce impacts to a level of less than significant. Rationale: Sound construction management and oversight will reduce adverse impacts of construction.

        • Dripline Encroachment on Coast live oaks. Construction of the proposed project may result in impacts (i.e. dripline encroachment) to several Coast live oaks, a locally protected tree species. Because the City of Berkeley recognizes these trees as a significant biological resource, impacts to Coast live oaks would be considered potentially significant and mitigation would be required. (MM 4.6-5) As a result of changes to the site plan, no construction would occur on the north side of Codornices Creek where many of the live oaks are located. Implementation of the mitigation measures would reduce potential impacts to Coast live oaks to less than significant. Rationale: Appropriate site plan design and techniques to protect significant trees during and after construction , can reduce adverse impacts on biological resources.

        • Work Within Creek High Water Mark. Implementation of the landscape plan and recommendations regarding creek bed stabilization may require work within the ordinary high water mark (OHWM) of Codornices Creek, a jurisdictional Waters of the U.S. Because work below the OHWM is regulated under Section 404 of the Federal Clean Water Act (CWA), impacts are considered potentially significant and mitigation would be required. (MM 4.6-7) Implementation of the mitigation measures will reduce impacts of the project to water-based ecosystems to a less than significant level. Rationale: Compliance with existing State and federal requirements associated with protection of water resources will reduce adverse impacts.

        • Rate of Stormwater Runoff. The proposed project will increase the rate of stormwater runoff leaving the site. This is considered a potentially significant impact. The increased rate of stormwater runoff could result in increased discharge into Codornices Creek. The contaminants (oil, grease, heavy metals, etc.) which would be discharged into Codornices Creek could be stressful to fish, particularly trout, and could, thus, result in potentially significant adverse impacts on the fish of Codornices Creek.

        • Another potential impact of increased stormwater runoff would be increased duration of flows, which would cause, or exacerbate, channel erosion. Channel erosion could increase sediment in the creek and result in potentially significant adverse impacts on trout habitat. In summary, an increase in the rate of stormwater runoff leaving the site could result in a potentially significant adverse impacts on the fishes, particularly trout, of Codornices Creek.

        • The mitigation measures would reduce the proposed projectÕs contribution to pollutant levels in runoff water from the site to a less than significant level. Rationale: A comprehensive approach to run-off, drainage and pollution control can reduce adverse project impacts.

  6. Biological Resources

     1. • Water quality. The construction-related activities (i.e. erosion as a result of construction and associated with the site drainage system) could result in potentially significant impacts to the water quality of Codornices Creek and San Francisco Bay. Increased turbidity (murkiness) and potential algal blooms would be stressful to trout and could result in potentially significant impacts to fish in Codornices Creek. The mitigation measures described in the Geology/Hydrology section of the FEIR would reduce construction-related impacts to a level that is less than significant. Hence, the mitigation measures would reduce impacts to fishes, particularly steelhead trout, in Codornices Creek, to less than significant levels, as well. Rationale: A comprehensive approach to storm water run-off, drainage and pollution control can reduce adverse project impacts to local water eco-systems.

        • On-site Erosion. The proposed project could result in potentially significant erosion caused by on-site drainage and drainage outfalls to Codornices Creek. This impact is considered a potentially significant impact. The mitigation measures described in the Geology/Hydrology section of the FEIR would reduce potentially significant impacts to fish. With the above mitigation measures in place, the increased project runoff would result in a less than significant impact to fish, including trout, in Codornices Creek. Rationale: A comprehensive approach to storm water run-off, drainage and pollution control can reduce adverse project impacts to local water eco-systems.

        • Slope Stability. The proposed project could result in an increase in the amount of soil infiltration and may contribute to slope stability problems along the north bank of Codornices Creek on the project site (as described in the Geology/Hydrology section of the FEIR). This could cause erosion or land sliding, which would release sediments into the creek, causing the water to become murky and unsuitable for fish. The mitigation measures described in the "Hydrology and Water Quality" section of the FEIR would reduce potential impacts to less than significant. The mitigation measures would result in a less than significant impact to fish, particularly trout, in Codornices Creek. Rationale: A comprehensive approach to storm water run-off, drainage and pollution control can reduce adverse project impacts to local water eco-systems.

  7. Aesthetics

  8. Stucco Walls at Oxford and Spruce. The construction of 6-foot high stucco walls along the Oxford Street and Spruce Street frontages would generate potentially significant impacts by creating an institutional appearance inconsistent with the character of the surrounding neighborhood. (MM 4.8-1) The mitigation will reduce this significant impact to a level that is less than significant. Rationale: Thoughtful design that incorporates recommendations of the BoardÕs Design Review Committee can mitigate adverse aesthetic impacts.

  9. Stucco Walls at Berryman Path. If necessary for noise mitigation purposes, the 7-foot high stucco walls proposed along the northern property line would eliminate desirable views into the site from Berryman Path, creating an institutional appearance inconsistent with the character of the surrounding neighborhood. (MM 4.8-2) The revised site plan reduces the potential noise impacts on residential properties north of the site by moving the parking area and driveway to the south side of Codornices Creek and farther away from the northern property line. If noise monitoring shows that the operations of Camp Kee Tov or the use of the play area create noise levels that exceed City standards, changes in the operation to reduce noise levels to meet City Noise Standards would eliminate the need for a barrier wall and reduce this impact to a level that is less than significant. Rationale: Elimination of the wall or thoughtful design that incorporates recommendations of the Design Review Committee can mitigate adverse aesthetic impacts.

  10. Lighting. The installation of site lighting as proposed would result in lighting visible to surrounding properties, creating possible spill, and resulting in an institutional appearance, inconsistent with the character of the surrounding neighborhood. (MM 4.8-3) The mitigation will reduce this significant impact to a level that is less than significant. Rationale: Changes to the selection and placement of fixtures can mitigate adverse aesthetic impacts.

IMPACTS WHICH ARE NOT SIGNIFICANT

• 1. Agricultural Resources

     1. The project would have no impact on agricultural resources in the community.

  2. Hazards and Hazardous Materials

     1. Project impacts regarding hazards and hazardous materials would be less than significant.

  3. Mineral Resources

     1. The project would have no impact on the availability of or extraction of mineral resources in the community.

  4. Population and Housing

     1. Because the project would not induce growth, would not construct housing or extend urban services, and would not generate the need for replacement housing, the impact on housing and population is less than significant.

  5. Public Services and Utilities

The project would not substantially increase demand for public services and utilities and, therefore, its impact on public services and utilities is less than significant.

ALTERNATIVES

Alternative 1: No Project "A"

Description: The existing sanctuary is reopened, and the school which could be constructed under the existing CUP at the Oxford Street site would be built and operated as permitted under the CUP.

Finding: This alternative would not achieve the project objectives to provide facilities to meet the needs of the congregation, and does not fulfill the basic definition of a project objective as contained in Section 15126.6(a) of the CEQA Guidelines, which provides that alternatives should be examined "which would feasibly attain most of the basic objectives of the proposed project."

Reasons for Rejecting this Alternative: This alternative would not meet the project proponentÕs objectives for the proposed project, since it would not include the development of facilities large enough to accommodate attendance by the congregation at religious services at times of peak attendance (the "high holy days" of the Jewish faith). This alternative is examined as required by CEQA Section 15126.6(e), even though it would not achieve the project objectives.

Alternative 2: No Project "B"

Description: The project site would be subdivided and houses constructed in conformance with the Berkeley General Plan and zoning standards.

Finding: This alternative would not achieve the project objectives, and does not fulfill the basic definition of a project objective as contained in Section 15126.6(a) of the CEQA Guidelines, which provides that alternatives should be examined "which would feasibly attain most of the basic objectives of the proposed project."

Reasons for Rejecting this Alternative: This alternative would not meet the project proponentÕs objectives for the proposed project, since it would not include the development of facilities large enough to accommodate attendance by the congregation at religious services at times of peak attendance (the "high holy days" of the Jewish faith). This alternative is examined as required by CEQA Section 15126.6(e), even though it would not achieve the project objectives.

Alternative 3: Underground Parking

Description: All project-related parking is placed in an underground lot below the proposed synagogue/religious school building.

Finding: This alternative would increase traffic impacts on Oxford Street because there would be only one driveway. Because the proposed project will not have any parking-related impacts and the garage would not increase the number of on-site parking spaces, there would no change in parking impacts. The garage would result in a slightly reduced volume of stormwater run-off from the site, would eliminate some urban runoff pollution, and would eliminate noise impacts related to the proposed above-ground parking lot while potentially causing other noise impacts.

Reasons for Rejecting this Alternative: This alternative was rejected for the following reasons:

The additional cost of providing underground parking would be approximately $1-million, making this alternative beyond the financial means of the application. Per CEQA Section 15126.6(f)(1), "economic viability" is "among the factors that may be taken into account when addressing the feasibility of alternatives."

Traffic from the proposed project would be concentrated at the Oxford Street entrance to the parking garage, increasing traffic on Oxford and potentially increasing noise levels for homes directly across the street from the garage entrance.

Because it would not include a cross-site access drive, this alternative would not provide the opportunity for convenient off-street drop-off and pickup for religious and school activities.

While this alternative would address potential noise and stormwater pollution impacts, these impacts can be effectively mitigated to levels of less than significant through other, less expensive mitigation measures, as discussed in the environmental impact report.

BE IT FURTHER RESOLVED that the Berkeley City Council hereby finds as follows:

1) Based on the recitals above, the City Council finds that the Final EIR has been completed in compliance with the requirements of the California Environmental Quality Act (CEQA).

2) The Final EIR (including three addenda) was presented to the City Council, and that the Final EIR was reviewed by the City Council and its information considered prior to taking action on the proposed project; and

3) The Final EIR reflects the City's independent judgment and analysis.

BE IT FURTHER RESOLVED, that the Berkeley City Council makes the following finding regarding Religious Assembly Use, under BMC Section 23d.16.030.

In compliance with BMC Section 23B.32.040 regarding findings for issuance of a use permit, the City Council finds that the construction, establishment, maintenance and operation of the religious assembly use, under the circumstances of this particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort of general welfare of persons residing or working in the area or neighborhood of the proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City for the following reasons:

1. The proposed project is consistent with applicable purposes of the R-1 (H) Zoning District (Single Family Residential-Hillside District), where the site is located, including the following:

A. The R-1 DistrictÕs Purposes:

i) Recognize and protect the existing pattern of development in the low density, single family residential areas of the City in accordance with the Master Plan.

As discussed in the January 11, 2001 Staff Report to the ZAB, the scale of the development (its floor area compared to its lot area or FAR), by being significantly less than the average of the adjoining neighborhoodÕs FAR, is consistent with the development of this single-family neighborhood. The floor area and coverage in the revised plan approved by the Council reduces both the floor area and coverage.

The project is also consistent with the policies of the 1977 Berkeley Master Plan as stated in the Staff Report to the ZAB dated November 9, 2000 and in the ZAB Staff Reports of January 11, 2001 and February 8, 2001 regarding implementation of the CityÕs parking policies and the determination of the parking requirement.

The purposes of the R-1 District also include:

i) Make available housing for persons who desire detached housing accommodations and a relatively large amount of Usable Open Space

This purpose is not applicable to a religious assembly use that otherwise complies with the objectives and standards of the district.

ii) Protect adjacent properties from unreasonable obstruction of light and air

As discussed elsewhere in these findings, the project does not cause significant impacts due to shadowing of the adjacent residential properties. Further, the project meets or exceeds the minimum zoning district standards including: required yards and has significantly less lot coverage than the maximum allowed.

iii) Permit the construction of community facilities such as places for religious assembly, schools, parks and libraries, which are designed to serve the local population when such will not be detrimental to the immediate neighborhood.

This project is found to serve the local population because 78% of its congregants live within Berkeley and adjacent areas of Albany and the CongregationÕs existing synagogue has been located approximately two blocks from the project site for over fifty years. This point is addressed in the November 9, 2000 Staff Report to the ZAB. Furthermore, the ProjectÕs potentially significant environmental impacts have all been mitigated to insignificant levels and its possible adverse effects will be controlled through the imposition of proposed conditions.

B. The H DistrictÕs Purposes:

i) Implement the Master Plan's policies regarding Hillside Development;

ii) Protect the character of Berkeley's hill districts and their immediate environs;

The project will satisfy these purposes because it maintains the open character of the site with a building that occupies less than 25 percent of the lot area; the projectÕs improvements and landscaping will enhance the existing conditions of Codornices Creek; and, the project is retaining and protecting the native Oak trees along its northern property line.

iii) Give reasonable protection to views yet allow appropriate development of all property

The project will not significantly affect the existing views across the site from adjoining properties because the existing views are minimal due to the siteÕs existing tree cover and the long distance views available to properties in the vicinity are limited due to the areaÕs relatively low elevation.

iv) Allow modifications in standard yard and height requirements when justified because of steep topography, irregular lot pattern, unusual street conditions, or other special aspects of the Hillside District area.

The project does not propose any modifications to building standards due to topography, lot pattern, or other conditions related to special aspects of the Hillside Overlay District regulations. The Applicant is seeking approval to allow the buildingÕs average height to be 35 feet, as permitted in any residential district, either within or outside the Hillside Overlay District, subject to the approval of a Use Permit.

2. The proposed use is compatible with the existing neighborhood. One purpose of the R-1 district in Berkeley is to "[p]ermit the construction of community facilities such as places for religious assembly, schools, parks and libraries which are designed to serve the local population when such will not be detrimental to the immediate neighborhood." BMC Section 23D.16.020.D. In addition, the 1977 Master Plan seeks to "[p]reserve the character of lower density residential areas. . . and their complementary churches, schools and parks." (Policy 1.10) The ApplicantÕs proposed use is consistent with these purposes and goals.

A. The Applicant is a local institution that serves a predominantly local population.

The Applicant has been a part of the Berkeley community for more than 50 years since the establishment of the existing synagogue approximately two blocks from the project site in the 1940Õs. Fully 35% of its member families live within one mile of the 1301 Oxford Street site, 46% live in the 94707 and 94708 Zip Code areas and 86% live within three miles of the site. (Congregation Beth El, "Supplemental Submission To Zoning Adjustments Board of the City of Berkeley," Jan. 19, 2001 [hereinafter "Supp. Submission I"], Tab 1; FEIR Summary, pp. 3-4; SR, 1/11/01.)

B. The ApplicantÕs continued presence and operation in the neighborhood will impose no material additional burdens on, and will offer a number of benefits to, the immediate neighborhood, adjacent property and the City of Berkeley at large.

i) The Applicant has been located at Arch and Vine Streets, approximately 1,200 feet from 1301 Oxford Street, for more than 50 years. It is, therefore, currently situated in the same neighborhood within which it seeks to relocate. Along with many other neighborhood institutions, the Applicant has been an important part of and has contributed to the rich and varied fabric of this part of Berkeley since the 1940Õs. Along with other neighborhood institutions, the Applicant contributes to the sense of "place" that helps to define BerkeleyÕs character. (Supp. Submission I, Tab 1; FEIR Summary, p.1; EIR, pp 4.1-2 and 4.1-4.)

ii) The Applicant has for many years been an integral part of the Berkeley faith community and provides valuable social and educational services to the entire City. It will be better able to continue these programs at the new site, since it had outgrown its existing facility. (Congregation Beth El Power Point Presentation, Jan. 25, 2001 and related testimony [hereinafter "Power Point Presentation"].)

iii) The ApplicantÕs membership has been stable at about 600 families for at least 10 years. As a result, the neighborhood is likely to experience little change in impacts caused by its activities. Considered over the course of the year, these impacts are episodic and the type to be expected of religious assembly uses. Use of the facilities tends to spike at various times during the week and then drop off dramatically. The ApplicantÕs facilities have been, and will continued to be, used primarily by children attending the various educational programs provided by the Applicant. Children under the age of 16 do not drive. Excluding staff, on typical weekdays, very few adults utilize the ApplicantÕs facilities. Even on Fridays and Saturdays, the days of heaviest adult usage, there are rarely more than 150 people on site at any one time and the facilities are usually empty by 10 p.m. (FEIR Summary, p.2; Supp. Submission I, Tab 3; Supplemental Submission, Feb. 8, 2001 [hereinafter "Supp. Submission II"].)

iv) To the extent that the ApplicantÕs activities may combine with the activities of other institutions (such as Live Oak Park or the Berkeley-Richmond JCC) to impose any burden on the surrounding neighborhood, any such burden already exists and the ApplicantÕs relocation to 1301 Oxford Street will not materially add to it. In fact, the proposed use at the new site offers advantages over the existing site that should result in net benefits to the surrounding neighborhood. For example, as stipulated in Condition 15, the Applicant has agreed to cooperate with Live Oak Park, the Himalayan Fair and the Berkeley Art Center to avoid duplication of major events to the extent possible, so as to minimize the traffic and parking impacts on the neighborhood. In addition, the new site will have as many as 30 more off-street parking spaces than the ApplicantÕs existing site only a couple of blocks away and will have an off-street drive for pick-up and drop-off of passengers that will take buses and cars off the streets, thereby improving safety and traffic circulation. Moreover, the Applicant has agreed that, in order to minimize the impact of its use on the neighborhood, it will not permit non-congregants to rent or license its facilities and it will place restrictions on the hours of use (Conditions 3 and 4). (Supp. Submission I, Tabs 1, 3 and 4; Congregation Beth El, Power Point Presentation, Jan. 25, 2001; FEIR Summary, p. 8; EIR, p.3.0-12; "Memorandum from Congregation Beth El to City of Berkeley," Feb. 22, 2001 [hereinafter "2/22/01 Memo"], p.3.)

3. The design of the project is compatible with the residential neighborhood.

A. The scale (i.e. size and bulk) of the project is compatible with and fits within the surrounding residential neighborhood context.

i) The ApplicantÕs proposed structure will have a floor area of 31,350 square feet and will cover only 23% of the 1301 Oxford Street site, although the Zoning Ordinance permits lot coverage of up to forty percent (40%) of the lot area. (BMC Section 23D.16.070.E) In contrast, the average lot coverage for homes in the surrounding area is 28%. Moreover, the average lot coverage of 30 religious institutions in Berkeley is 50% and, in some cases, lot coverage exceeds 90%.

ii) One purpose of the Single Family Residential Districts regulations is to "recognize and protect the existing pattern of development in the low density, single family residential areas of the City in accordance with the Master Plan." (BMC Section 23D.16.020). The proposed design of the building is consistent with this purpose. The projectÕs Floor Area Ratio is roughly 34% compared with an average of 46% for the surrounding residential development. The projectÕs street frontage along Oxford Street is only 11.6% and only 45% along Spruce, compared with 63% for the surrounding residential development. Because the lot slopes to the east and much of the building will be substantially set back along Spruce, the building will appear to have even less street frontage. (Power Point Presentation; Supp. Submission I, Tab 2; 2/22/01 Memo, p.1; SR, 1/11/01.)

B. The proposed buildingÕs design and building materials are consistent with the architectural styles in the neighborhood and the City generally. The design has the effect of minimizing the building mass along both Spruce and Oxford Streets and of increasing the architectural vocabulary to provide the feel of different structures and uses. In addition, the building has a residential appearance, especially on Oxford Street where its profile and bays are consistent with the residential buildings nearby. On Spruce Street, the height of the tallest element, the sanctuary, is similar to that of the closest residence immediately to the south. To the east (uphill) side of Spruce Street, the houses are substantially higher than the portions of the building along Spruce Street, the sanctuary and social hall.

In addition, the palate of materials for the building is wood and stucco, which is consistent with the materials used in the immediate neighborhood and, indeed, throughout the residential neighborhoods in Berkeley. In particular, the eaves on portions of the building are reminiscent of the type of eaves used on homes designed by BerkeleyÕs finest architects. The gable form of roof and the roof ridgeline along the middle of the building give the impression of a variety of roof forms, a lower roof profile, and a residential scale and appearance along the Oxford Street frontage in particular.

Because the Applicant proposes to retain most of the existing mature trees and the buildingÕs open configuration, the character of the plan is more typical of residential than institutional use. (FEIR Summary, p. 5; Supp. Submission I, Tab 2; 2/22/01 Memo, p.1; SR, 1/11/01; Revised Site/Roof Plan and Floor Plans, submitted Feb. 22, 2001 and March 8, 2001.)

C. The proposed building will not interfere with light or air available to adjacent properties. Another goal of R-1 districts is to "protect adjacent properties from unreasonable obstruction of light and air." (BMC Section 23D.16.020). The project satisfies this goal. The location on the site will not obstruct light or air to any other property. The closest buildings will be the two residences to the south, neither of which will be shaded. The height of the Sanctuary and the house are comparable. The school wing of the proposed project will be well removed from the nearest property on Oxford Street. The roofline and windows will give the school building a residential feel, no different from the perspective of the adjacent Oxford Street residence than if the school building were actually a residence. (EIR, pp. 3.0-27 through 3.0-29; Revised Site/Roof Plan and Floor Plans, submitted Feb. 22, 2001 and March 8, 2001.)

4. Parking

A. Determination of the projectÕs parking requirement. Berkeley Zoning Ordinance Section 23D.16.080 (Parking -- Number of Spaces) provides that "Other Uses requiring Use Permits, including, but not limited to, Child Care Centers, Clubs, Lodges, and community centers, shall provide the number of Off-street Parking Spaces determined by the Board, based of [sic] the amount of traffic generated by the particular Use and comparable with specified standards for other Uses." Therefore, based on the information provided in the January 2, 2001 Staff Report, the Zoning Adjustments Board determined the parking requirement for this religious assembly use to be one on-site parking space for each eight seats in the sanctuary, the building's principal public assembly area. Based on the proposed sanctuary seating of 250, 31 parking spaces are required.

B. The projectÕs potential parking impacts will not be detrimental to the adjoining residential properties because:

i) The principal daily use of the property will be a religious day school, which has a low demand for parking that can be met on the site;

ii) The available parking on the site (31 non-tandem spaces as modified by Condition A.5) and adjacent to the siteÕs frontages (approximately twenty spaces), would meet the facilityÕs typical maximum weekly needs;

iii) As conditioned, pursuant to the mediated agreement between Congregation Beth El and the coalition of neighbors and environmental groups, the Applicant will develop and implement a Parking Management Plan to ameliorate the potential effects of its larger religious services and social events. The Plan, which will be developed and completed with input from neighbors and the CityÕs Traffic Engineer, shall employ techniques such as on-site valet parking, satellite parking, parking limits on certain streets adjacent or proximate to the site, directed parking, and similar methods reduce detriment to the neighborhood.

5. The revised site and parking plan would create no new impacts or increase the severity of previously identified impacts. Previously identified impacts can be reduced to less than significant levels by previously proposed mitigation measures. The revised parking scheme, as shown on the revised permit drawing (A2.0 SITE PLAN / ROOF PLAN, Supplement #11: 8/24/2001), has moved the projectÕs parking from the location shown on earlier drawings, which was closer to the residential dwellings just to the north of the property, to areas south of Codornices Creek including a parking area on the west end of the project site. The Third Addendum to the FEIR found that the relocation of the parking area will result in a change as to which adjacent dwelling units may be effected by the projectÕs noise levels but also found that the revised plan would not increase the significance of the noise impact. The Addendum also found that the mitigation measures that were previously proposed would mitigate potential noise impacts to a less than significant level.

Relocation of the parking area will have a positive impact because the parking area will not be located beneath the drip lines of the siteÕs Coast live oak trees. Any possible impacts to the Monkey Puzzle tree that may result from moving the parking area can be reduced to less than significant levels by the same mitigation measures previously identified for protecting the oak trees. Further, because the parking and roadway areas are no longer located above the culverted section of Codornices Creek this revised location would increase the feasibility of daylighting the culverted portions of Codornices Creek should the Applicant or another future property owner voluntarily choose to do so at some time in the future.

6. Traffic impacts are not significant. The additional traffic potentially generated by the projectÑas mitigatedÑis not, according to the projectÕs Final Environmental Impact Report, anticipated to cause significant congestion at local intersections, at the projectÕs entryways, or along the fronting roadways. (See Impacts 4.2-1 and 4.2-3).

7. Removal of Cypress Trees not significant. As the result of mediation between the project sponsors and a group of neighborhood and environmental parties, the Applicant agreed to remove certain trees on the property. These are the large cypress trees located within a row along the project's southern property line and adjacent to the single family house at the eastern end of the property (1314 Spruce Street). In their 1998 report on the property, the LPCÕs subcommittee recommended that this row of Cypress trees (among other elements of the site) should be preserved. These recommendations not withstanding, the proposed removal of several of these trees, is found to not be detrimental for the following reasons:

A. The owner of the adjoining single-family dwelling has asserted that these trees "are growing onto [his] property, causing an encroachment, damaging [his] roof and rain gutters, damaging [his] drain and water pipes, and undermining the foundation of [his] home." (Letter to the Berkeley City Council from Daniel McLoughlin, 1314 Spruce Street, dated April 30, 2001.)

B. The only trees protected by the City of Berkeley regulations and ordinances are the Coastal Live Oaks that are the subject of Ordinance-N.S. 6550.

C. The Berkeley Design Review Committee recommended that trees, other than the site's oaks and Monkey Puzzle tree, "be evaluated as to their viability to contribute to a cohesive design." (Condition H.4) and did not specifically identify the cypress trees for retention.

D. These trees are not a "Listed" or a "Special Status" species of plant which is identified as being endangered or are otherwise protected. (Congregation Beth El Synagogue and School DEIR Table 4.6-A)

8. Alterations to Oxford Street entry gate not detrimental. Proposed changes to the site plan based on the mediated agreement will require alterations to the existing Oxford Street property entry. In order to insure that buses can safely enter the project site the entry gate must be widened. The LPC identified retention of this gate as desirable. The alteration of the entry will not be detrimental for the following reasons:

A. Based on the FEIR, the entry gate and Oxford Street wall do not date from the Byrne era and do not constitute historic resources as defined by the California Environment Quality Act (CEQA); and,

B. To the extent that the gate, although dating from a later period, does contribute to the aesthetic quality of the site, potential detriment will be avoided by imposing a condition of approval requiring the design of the alteration to be consistent with the character of the existing walls (Condition 8).

BE IT FURTHER RESOLVED, that the Berkeley City Council makes the following findings regarding the Use Permit for demolition of non-residential buildings pursuant to the requirements of BMC Sections 23B.32.040 and 23C.08.050.

In compliance with BMC Section 23B.32.040 regarding findings for issuance of a use permit, the City Council finds that the demolition of two non-residential buildings greater than 300 square feet in area, under the circumstances of this particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of the proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City for the following reasons:

1. The demolition will not be detrimental to the commercial needs and public interest of the affected neighborhood because the use of the property is not changing. The demolition concerns a main structure and several accessory structures previously used for a religious assembly use; the project would replace those buildings with another building for religious assembly use.

2. The demolition of the two non-residential structures on the project site, that are greater than forty-years old and subject to approval of a Use Permit, would be consistent with the provisions of the Landmark Preservation Ordinance. Neither structure satisfies the criteria for consideration as a City of Berkeley landmark pursuant to BMC Chapter 3.24.110 (Landmarks Preservation Ordinance) due to their architectural merit, cultural value, educational value, or historic value based on the following findings:

A. When, at their November 19, 1990 meeting, the LPC moved to reaffirm the subject siteÕs historic significance, their motion cited the remaining resources, including the trees, open creek bed, and a fence as examples and remnants of a past era but did not identify the existing buildings as resources worthy of preservation.

B. Based on substantial information in the record, the projectÕs FEIR found that the property, including the subject structures, was not an historic resource meeting the criteria for listing on the California Register of Historical Resources and, therefore, the project would not have any significant environmental impact on an historical resource. (FEIR Section 4.7.5 and Appendix B: Review of Historic Resources, Revised September 2000)

C. The proposed demolition permit was forwarded to the LPC for review and comment as required by BMC Section 23C.08.050.C; however, the LPC did not send any comments to the Zoning Adjustments Board regarding this proposal.

3. If any asbestos were to be found in the structures to be demolished, mitigations proposed in the project's Final Environmental Impact Report would reduce the potential threat to human health to less than significant levels; (Mitigation Measure 4.4-2)

4. There is no information in the record, including environmental review documents and oral and written testimony regarding this permit, to show that the proposed demolition would cause detriment.

5. As required by the Berkeley Zoning Ordinance for the demolition of a non-residential building (BMC Section 23C.08.050), it is found that the demolition is required to allow a new building of the same use type.

BE IT FURTHER RESOLVED, that the Berkeley City Council makes the following finding regarding an Administrative Use Permit to allow main buildings to exceed 28 feet in average height, under BMC Section 23D.16.070 C.

In compliance with BMC Section 23B.32.040, the City Council finds that the construction, establishment, maintenance and operation of the religious assembly use with portions of its roof being at 35 feet, under the circumstances of this particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort of general welfare of persons residing or working in the area or neighborhood of the proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City for the following reasons:

1. The additional seven feet of average building-height allowed pursuant to this Use Permit will not cast significant shadows on adjoining properties because the proposed structure would be located to the north of potentially affected adjacent dwellings; significant shadows would only be cast on adjoining streets or the subject property.

2. The additional height will not significantly block the long distance views of nearby residential properties, if such views exist, because such views would now be obstructed by the siteÕs trees.

3. The proposed additional height will not affect the privacy of adjoining properties since the portions of the building with the additional height would not contain habitable areas to provide otherwise unavailable view points; said portions are either architectural features or shield mechanical spaces.

BE IT FURTHER RESOLVED, that the Berkeley City Council makes the following finding regarding a Use Permit to allow automobile parking within required yards abutting a street (BMC Section 23D.12.080.C).

In compliance with BMC Section 23B.32.040, the City Council finds that the placement of automobile parking spaces within required yards abutting streets, under the circumstances of this particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort of general welfare of persons residing or working in the area or neighborhood of the proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City because:

1. The width of the proposed parking areas will occupy a relatively small proportion of the propertyÕs street frontage (15% of the Oxford Street and 23% of the Spruce Street frontages); and,

2. The proposed screening of these parking spaces will minimize their visibility from the public right-of-way and will be consistent with the neighborhoodÕs single-family residential character.

Approved as to form:

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City Attorney