A DJUSTMENTS. B. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( Existing Facilities ).

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1 91 Shattuck Square Z O N I N G A DJUSTMENTS B O A R D S t a f f R e p o r t FOR BOARD ACTION AUGUST 14, 2008 Use Permit # to establish a quick service restaurant and bakery with sidewalk seating and planters, 24 hour operation and to expand alcohol service from inside the restaurant to the outside enclosed arcade and to allow sale of beer and wine for off-site consumption; (C-2 Central Commercial in Arts District Overlay, JWC/GMS) I. Application Basics A. Zoning Permits Required: Use Permit to change use to quick service restaurant over 3,000 square feet in the Arts Overlay District under BMC Section 23E C; Administrative Use Permit to permit sidewalk café seating & planters, under BMC Section 23E & 23E ; Use Permit to expand alcohol service to allow service in an enclosed arcade, under BMC Section 23E ; Administrative Use Permit to extend hours of operation to 24 hours daily, under BMC Section 23E ; and Administrative Use Permit to allow wholesale activities related to on-site bakery, under BMC Section 23E B. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( Existing Facilities ). C. Parties Involved: Applicant Carmine Frank Giuliano, Architect P.O. Box 1517 Lafayette, CA Property Owner Paul Goldstone c/o MRE Commercial Real Estate 6001 Shellmound St., Suite 825 Emeryville, CA Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 91 SHATTUCK SQUARE ZONING ADJUSTMENTS BOARD Page 2 of 10 August 14, 2008 Figure 1: Vicinity Map

3 ZONING ADJUSTMENTS BOARD 91 SHATTUCK SQUARE August 14, 2008 Page 3 of 10 Figure 2: Site Plan

4 91 SHATTUCK SQUARE ZONING ADJUSTMENTS BOARD Page 4 of 10 August 14, 2008 Table 1: Land Use Information Location Existing Use Zoning District General Plan Designation Subject Property Vacant Storefront C-2 Downtown Commercial (Arts Overlay District) Surrounding Properties North Vacant Storefront C-2 Downtown Commercial (Arts Overlay District) South Quick Service Restaurant C-2 Downtown Commercial (Arts Overlay District) East Quick Service Café Retail Gift Shop C-2 Downtown Commercial (Arts Overlay District) West Retail Book Store C-2 Downtown Commercial (Arts Overlay District) Table 2: Special Characteristics Characteristic Applies Explanation to Project? Alcohol Sales/Service Yes Application has been submitted to ABC for a 41 License for the sale of beer and wine for both on and off-site consumption with the sale of food Historic Resources Yes No exterior changes to the City of Berkeley Landmark building are proposed that have not Soil/Groundwater Contamination Yes already been approved by LPC Project is within an Environmental Management Area. All construction is limited to existing interior space and no excavation is required. Table 3: Project Chronology Date Action 5/16/08 Application submitted 6/18/08 Application deemed incomplete 7/16/08 Application deemed complete 7/24/08 Public hearing notices mailed/posted 8/14/08 ZAB hearing 9/14/08 PSA deadline 1 1. Project must be approved or denied within 60 days after being deemed complete if exempt from CEQA, or 60 days after adoption of a negative declaration, or 180 days after adoption of an EIR (Govt. Code Section 65950).

5 ZONING ADJUSTMENTS BOARD 91 SHATTUCK SQUARE August 14, 2008 Page 5 of 10 Table 4: Development Standards Standard Existing Addition/ Proposed Permitted/ BMC Sections 23E (Reduction) Total Required Lot Area (sq. ft.) 6,554 No Change 6,554 NA Gross Floor Area of subject space (sq. ft.); includes basement (1,783), ground floor (1,826), arcade not in public right-of-way (440), and interior mezzanine (585) 4,634 No Change 4,634 NA Gross Floor Area of subject 18,318 No Change 18,318 NA building (sq. ft.) Floor Area Ratio 2.8 No Change Parking Automobile 0 No Change 0 1.5/1000 sq. ft. Bicycle 0 No Change 0 NA II. Project Setting A. Neighborhood/Area Description: The site is located at the northwest corner of the southbound portion of Shattuck Avenue and Addison Street. Several live performance theatres operate nearby, including Berkeley Repertory, the Berkley Jazz School and soon the Freight and Salvage. It is two blocks from the U.C. Berkeley campus, one block north of the City s central AC Transit stop and one-half block from the downtown BART Station, which serves commuters from early morning until after midnight. In addition, several movie theatres within a short walk also draw people to the area into the late evening. B. Site Conditions: The site is one of three properties that constitute the Landmark Shattuck Square Block (J.R. Miller & Timothy Pfleuger, 1926), the central portion of which originally housed the Roos Atkins Clothing Store. It is the southernmost parcel and is fully developed with a two-story commercial building that provides space for retail and restaurants on the ground floor and office uses on the second floor. A recently completed arcade along the storefronts on the west side of the building and features operable wrought iron gates that can be closed to control access and egress. The LPC approved the new arcade and ironwork as appropriate and compatible with the landmark building. The applicant has recently upgraded the existing basement to provide new storage, service areas, and restrooms. He has also recently added a new public access elevator near the center of the building adjacent to the west frontage, allowing entry from the arcade side of the ground floor and exiting into all levels of the building, including the basement, ground floor, mezzanine and second floor. A freight elevator serves a loading zone on the north side of Addison Street between the north and south bound lanes of Shattuck Avenue.

6 91 SHATTUCK SQUARE ZONING ADJUSTMENTS BOARD Page 6 of 10 August 14, 2008 III. Project Description The ground floor area expands the storefront space formerly occupied by an Asian full service restaurant by subsuming the adjacent lease space. No new floor area has been added to the total square footage for the building. The expansion within the existing building, both in the basement and on the ground floor, allows service infrastructure upgrades and adequate area for on-site food preparation and baking in the basement to serve the upstairs café, whose menu will include sandwiches, pastries, breakfast items, breads, and thin crust pizzas as well as assorted salads and antipasti. The proposed basement bakery would provide both retail sales in the ground floor café and wholesale sales with deliveries accommodated by the sidewalk accessible elevator to Addison Street. The project improves approximately one-half the existing basement area of the building providing a full kitchen, baking ovens, storage, and employee service facilities, including a separate toilet and shower. In addition, the project portion of the basement would provide public toilet facilities accessible by elevator to both the proposed café and the second floor offices in the building. The customer area in the restaurant features display cases for foods and beverages and a central coffee bar serving espresso and other non-alcoholic drinks for on- or off-site consumption. Wine from the operator s vineyard as well as specialty beer would be available with meals in the restaurant areas as well as for take-out with a food purchase. There is counter seating on the ground floor for approximately 14 persons as well as tables in the arcade area along the café frontage for approximately 16 persons. The mezzanine area, which is accessible both by stairs and the public elevator, provides seating for approximately 35 (65 total). In addition, sidewalk seating adjacent to the arcade is proposed within the public right-of-way. The delineation between the zone for pedestrian circulation and that for sidewalk seating is shown on the plan set as a dimensional area that may be used for an appropriate number of tables, chairs and movable decorative elements associated with such uses. The final design for this area is subject to approval by the Zoning Officer in conjunction with Public Works and the Police Department to address issues of pedestrian safety, accessibility, and owner responsibility for proper management. Consumption of alcoholic beverages would not be allowed in the sidewalk area in accordance with current public policy. IV. Community Discussion A. Neighbor/Community Concerns: The Downtown Business Association (DBA) submitted a letter of support for the project and the applicant submitted additional letters of support from surrounding merchants and property owners (see Attachment 7). B. Committee Review: No new advisory committee review is required for this project.

7 ZONING ADJUSTMENTS BOARD 91 SHATTUCK SQUARE August 14, 2008 Page 7 of 10 V. Issues and Analysis A. Key Issues: 1. Extended Hours of Operation: The applicant has requested a permit to operate the bakery and café twenty-four hours a day, seven days a week. The hours of operation for retail sales in the C-2 Downtown Commercial District allowed by right are from 6 a.m. to 2 a.m. seven days a week. The proposed bakery is permitted to operate throughout the night. The extension of the hours for customer service through the night and very early morning would allow fresh baked products to be available for purchase at any time, together with coffee and other non-alcoholic beverages. Alcohol sales would be limited to the hours established by the ABC 41 permit (which does not allow alcohol sales between 2 a.m. and 6 a.m.) and the City. The proposed quick service café and bakery is in a strategic location of the downtown adjacent to both transit and theatres. U.C. students provide another customer base that could contribute to the beginnings of a 24-hour dynamic for the downtown. This project provides an opportunity to implement a vision that is currently being explored by the new Downtown Area Plan as directed and endorsed by more than a year of public participation through the Downtown Planning Advisory Committee (DPAC). The concern that the café could become a magnet for undesirable activities late at night is countered by the potential for its being a welcome place to stop for fresh food and coffee in the wee hours, a positive contribution to a revitalized downtown. The Police are supportive of the proposed hours of operation (see Attachment 5). 2. Sale of Alcohol for On and Off-Site Consumption: In compliance with the request for an ABC 41 Liquor License for both on and off-site consumption, an inventory of comparable businesses within a one thousand foot (1000 ) radius has been prepared (see Attachment 4) and comments have been received from the Berkeley Police Department Chief through the District 3 Coordinator (see Attachment 5). The findings required under BMC Section 23E may be made (see Attachment 1, finding 5) Staff notes that there is a great deal of concern that allowing alcoholic beverages to be sold, especially for off-site consumption, is inappropriate in most parts of the City and contributes to undesirable activities among a certain percentage of those who make use of public areas in the downtown. The proximity of both the U.C. Campus and Berkeley High School, which is slightly outside the one thousand foot (1000 ) radius of the site, is another factor of concern to many. There are at least two other retail operations in the same general area of the project site which are permitted to sell alcoholic beverages for off-site consumption with food purchases, including the market and quick service café across the street from the project site at 2012 Shattuck Avenue and a small deli and juice bar at the southeast corner of Shattuck Avenue and Berkeley Way two blocks north of the project site. Within the 1000 foot radius of the site, there are approximately 26 cafes and restaurants licensed to serve beer and wine with meals and

8 91 SHATTUCK SQUARE ZONING ADJUSTMENTS BOARD Page 8 of 10 August 14, 2008 approximately 3 that are licensed to serve beer and wine as well as hard liquor with meals. Many more such businesses are in operation within the overall downtown area, including several bars. The critical factor in allowing the sale of alcoholic beverages for off-site consumption is how it is displayed and managed by the food sales operation. The alcohol should not be directly accessible to customers, but rather an incidental part of the restaurant operation, sold only at the counter in conjunction with the purchase of food at full menu prices. Identification cards should be checked as appropriate. Wine and beer would be available for patrons to drink with their meals on-site, and would be available to purchase with a prepared take-out meal, as is the case with restaurants such as the one across the street at 2012 Shattuck Avenue. In the proposed project, areas dedicated to wine and beer sales would occupy a very small percentage of the floor area such as counter display cases or special coolers accessible only to staff. Sale of fortified wine and/or malt liquors are not offered, either for take-out or for on-site consumption. From the exterior, the storefront space is presented as a bakery and restaurant with a take-out menu that includes sale of wine and beer with food purchases ONLY, not as a package store or wine shop. This is consistent with the permit restriction that such sales are an incidental use. Café management will include posting and supervision of the sidewalk seating area to insure that patrons who purchase wine and beer do not take their drinks to those tables that are in the public right-of-way. No beer and/or wine will be served to patrons seated in the sidewalk seating area. As noted below, the arcade seating area has gates that will generally be closed to help enforce the condition that the sidewalk seating area remain alcohol free. In addition to the manner in which the beer and wine will be sold and served, the café will also operate strategically located surveillance cameras for viewing the interior ground floor and mezzanine space as well as the arcade and sidewalk seating areas to ensure adherence to the conditions of approval. Sidewalk Seating: The applicant has requested that he be allowed to serve alcoholic beverages, as well as food, at the sidewalk tables, besides the arcade tables. Sidewalk tables and chairs are an obvious complement to the open air seating in the covered arcade that is part of the building area. However, the sidewalk seating occupies the public right-of-way and raises a number of issues that include the potential of its being an obstacle to pedestrian movement and safety or to access and egress from the building in case of a fire or other emergencies. From an operational point of view, there is a concern for how the sidewalk area seating can be supervised and controlled by the owner when there is sale of alcoholic beverages that could be taken outside for consumption. The Police and Planning staff recommend that the City policy of prohibiting alcoholic beverage consumption in public sidewalk seating areas be maintained.

9 ZONING ADJUSTMENTS BOARD 91 SHATTUCK SQUARE August 14, 2008 Page 9 of 10 Sidewalk and private outdoor seating, especially in the vicinity of an establishment serving alcohol in the downtown and elsewhere in the City can be subject to what is colloquially known as table surfing where passers-by may actually pick up someone s drink. Staff and the Police Department endorse the presence of a functional barrier (in this case, the gates) between the arcade and sidewalk seating, to discourage the creep of alcohol service from the arcade seating into the sidewalk seating area. Additionally, Public Works views physical barriers in the public right-of-way, even if they are not made permanent, as potential hazards. The actual layout and design of the elements that may be used in the identified sidewalk seating area will be reviewed and approved by the Zoning Officer in consultation with Public Works staff and the District 3 Police Officer to prevent any possible hazards to the public utilizing the adjacent sidewalk. 3. Parking: The project reconfigures existing basement and ground floor space in the owner s building for the proposed quick service restaurant but does not add any additional floor area to the building as a whole. At present there is no offstreet parking associated with the former use. There is no parking added as part of the proposed project. None is required because the existing building and uses are approved with no parking and no new construction is involved. The adjacent storefronts and basement area have been reconfigured to create the expanded interior floor area for the restaurant. The arcade area provides approximately 330 square feet of area, and does not trigger the need for additional parking (one additional space would be required if the arcade seating area exceeded 333 square feet). The project is less than a block from the City s central bus and transit station area and approximately one block from a publically accessible parking facility. 4. Compatibility with Downtown Arts District Overlay: The stated purpose of the Overlay District (BMC Section 23E A.1) is to create a core of cultural activities and supportive retail and commercial uses which would generate more pedestrian vitality in the downtown, promote Berkeley s regional leadership in the arts, and encourage broader economic revitalization of the area. The proposed project is one of the uses identified as helping to implement this policy objective. The proposal to operate on a 24/7 basis further supports the vision of the evolving character of a revitalized downtown as a place where there is activity of a positive nature at all times. B. General and Area Plan Consistency: General Plan Policy Analysis: The 2002 General Plan incorporates Downtown Plan Goals into the Land Use Element. There are several policies applicable to the project, the direct being:

10 91 SHATTUCK SQUARE ZONING ADJUSTMENTS BOARD Page 10 of 10 August 14, Policy LU-16 Downtown Plan: Implement the Downtown Plan and take actions to achieve the three goals of the Plan: 1) Express and enhance Berkeley s unique social and cultural character in the Downtown; 2) Create an appealing and safe Downtown environment, with a comfortable pedestrian orientation; and 3) Diversify, revitalize, and promote the Downtown economy. Staff Analysis: The proposed 24 hour bakery and quick service cafe operation with both indoor and open air seating under the arcade will help to revitalize and promote the downtown economy and arts district by providing an attractive gathering place in a strategic central, landmark location that will encourage people to spend more time in the downtown and to take advantage of nearby entertainment and retail uses. The planned interface between the indoor and outdoor space, including sidewalk seating, will place more eyes on the street and will be an attractive component of street life within visible range of the City s transit center. Freshly prepared food, like markets that feature local food products, attract customers and facilitate positive social interaction. These places are another aspect of the life of a community, a contemporary agora to be encouraged. VI. Recommendation Because of the project s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, Staff recommends that the Zoning Adjustments Board: A. APPROVE UP # pursuant to Section 23B and subject to the attached Findings and Conditions (see Attachment 1). Attachments: 1. Findings and Conditions 2. Project Plans, updated and received July 14, Photos ft. alcohol radius map 5. Police Recommendation 6. Notice of Public Hearing 7. Correspondence Received Staff Planner: Gisele M. Sorensen, gsorensen@ci.berkeley.ca.us, (510) Contract Planner: Jay W. Claiborne, jclaib@lmi.net, (510) )