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CONSIDERATION OF AN APPEAL BY KENNY RAY AND MITCHELL COMPTON OF THE ZONING ADMINISTRATOR’S DECISION APPROVING DESIGN REVIEW PERMIT DR15-0010, FOR THE FAÇADE REMODEL OF THE VONS BONITA CENTER
RESOLUTION NO. 2016-048 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DENYING THE APPEAL BY KENNY RAY AND MITCHELL COMPTON AND AFFIRMING THE ZONING ADMINISTRATOR’S APPROVAL OF THE DESIGN REVIEW PERMIT (DR15-0010) FOR THE VONS BONITA CENTER FAÇADE REMODEL, LOCATED AT 4404 BONITA ROAD IN THE CITY OF CHULA VISTA
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RECOMMENDED ACTION
Recommended Action
Council conduct the public hearing and adopt the resolution.
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SUMMARY
Donahue Schriber, the Applicant representing the owner of the Bonita Center, has submitted a Design Review application requesting approval of an entry façade remodel and re-painting of the exterior of the Vons grocery store building (Project). On November 3, 2015, the Zoning Administrator conditionally approved the Project (See Attachment 2). On November 18, 2015, Mr. Kenny Ray and Mr. Mitch Compton filed an appeal of the Zoning Administrator’s decision (see Attachment 3). The appeal of the Design Review approval is based on previously existing, ongoing complaints about noise generated by Vons roof-mounted condensers that have been filed by the Appellants. The noise issue between Vons and the Appellants started long before the Design Review application was submitted to the City. The appeal states (1) That the information provided by the Appellants to staff, related to a prior noise complaint, was not provided to the Zoning Administrator prior to consideration of the Project, and that City staff did not notify the Appellants of this; (2) That an adjoining property owner did not receive public notice of the Zoning Administrator’s consideration of the Project; and (3) That the California Environmental Quality Act (CEQA) Guidelines General Rule Exemption, and certain Exceptions should have been applied to the Class 1 Existing Facilities Categorical Exemption for the Project.
Staff reviewed the appeal and found that the Vons Remodeling Project is unrelated to the noise issue. The Project is a façade remodel that does not include changes to the existing roof-mounted condenser units that may have been creating noise issues for the adjacent residential area. The information relevant to the Project that was provided to the Zoning Administrator was complete. The public notice was prepared and distributed properly as required by the Municipal Code. Therefore, staff finds that there is no basis for granting of the appeal.
ENVIRONMENTAL REVIEW
Environmental Notice
Environmental Notice
The Project qualifies for a Class 1 Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act Guidelines.
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Environmental Determination
The Development Services Director has reviewed the Project for compliance with the California Environmental Quality Act (CEQA) and has determined that the Project qualifies for a Class 1 Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the State CEQA Guidelines. The project qualifies for a Class 1 exemption because the project proposes remodeling of an existing commercial building involving negligible or no expansion of the existing commercial use. Thus, no further environmental review is required.
BOARD/COMMISSION RECOMMENDATION
Not Applicable
DISCUSSION
Project Description:
The Project is a remodel of the front façade of the Vons grocery store building located in the Bonita Center. The Project site is located in a commercial retail shopping center on a 4.0 acre lot at 4404 Bonita Road, southwest of the intersection of Bonita Road and Otay Lakes Road (See Attachment 1, Locator Map). The site has a zoning designation of Central Commercial-Design Control (CCD), and a General Plan Designation of Commercial Retail (CR), which allows commercial uses. The Project includes replacing the existing wooden roof shingles, façade elements and roof-mounted wall sign, with a new standing seam metal roof with a new tower element and upgraded façade design and materials. The Project also includes a new wall sign, re-painting of the sides and rear of the building to match the existing buildings, and the addition of exterior lighting and landscaping to the store entry. These improvements do not alter or affect the condensers located at the rear portion of the roof of the building.
Surrounding area:
To the north and west of the Vons store is the remainder of the Bonita Shopping Center and Bonita Road, which are located within the City Limits. To the east is Otay Lakes Road, with the Chase Bank Commercial Center and a multi-family residential development located across Otay Lakes Road from the Bonita Center. South of the Bonita Center are large-lot single-family homes located across the City boundary in the unincorporated area of the County (including the Appellant’s homes), which are directly south of the grocery store. The City/County boundary separates the Project site, which is located within the City limits, from the adjacent unincorporated residential area to the south where the Appellants live. These homes are situated at a higher elevation of approximately 122 feet above sea level, 44 feet above the elevation of the shopping center parking lot, and 23 feet above the Vons building roof. The Vons building is approximately 38 feet at its closest point to the property line and City Boundary, and approximately 140 feet to the nearest point of the closest adjacent home owned by Mr. Ray (See Attachment 4, Site Plan).
Appeal:
During the application review process for the Vons project, the surrounding property owners and residents living within 500 feet of the Project site were notified of the application submittal on August 7, 2015, and later were notified of the Zoning Administrator’s consideration of the Project on October 6, 2015, as required by the Municipal Code. As a result of these notices, staff received phone calls and e-mails from Mr. Compton and Mr. Ray in August 2015 related to a noise issue regarding Vons roof-mounted condensers that affects their homes. Staff met with Mr. Compton to review the architectural plans submitted by the Applicant. In response to the Notice of Application, the Appellants submitted copies of documentation including correspondence and e-mails related to a noise dispute from 2013 between the Applicant and Vons. Other information submitted to staff related to the noise issue included a copy of a noise study prepared for the Applicant dated May 2013; a copy of a letter from the City Code Enforcement Division to Mr. Compton in response to a noise complaint regarding Vons; and photos showing the existing roof-mounted condensers and sound walls as viewed from the Appellants homes. Staff reviewed this information and determined it was not related to the Vons remodel project.
ANALYSIS
On November 18, 2015, Appellants filed an appeal of the Zoning Administrator’s Decision to approve the Project (see Attachment 3). The basis of the appeal is that there are Factual Errors and New Information, which include the following three issues, and staff response to these issues, summarized below:
1. The correspondence from the Appellants described above was submitted to the City with a request for it to be provided to the Zoning Administrator during consideration of the application. Appellants’ contend that if the opposition letters, photos, and technical reports submitted were not provided to the Zoning Administrator for consideration, the file was incomplete.
Staff Response:
The correspondence from the Appellants described in the appeal was reviewed by staff, who determined that it was related to noise generated by roof mounted condenser units located on the rear portion of the Vons roof, which is not related to the Vons remodeling Project. The Project does not include structural changes that would alter the rear portion of the roof or the roof-mounted condensers. The Project proposes a minor alteration of the existing structure, including the remodel of the front façade of the building, including a new roof facade, exterior wall materials, signage and color and landscaping. Since no structural changes are proposed anywhere near the condenser units, sound emanating from the condensers would not be affected in any way. Therefore, the Project would not affect any potential existing noise issue. The complete Project file and plans, including all information relevant to the Project, was forwarded to the Zoning Administrator. The information regarding the Project that was provided to the Zoning Administrator was complete, and, therefore, there is no basis for granting the appeal on the basis that the record was incomplete.
2. Appellants’ contend that an Adjoining Property Owner within 500 feet from Applicants address did not receive a public notice from the City.
Staff Response:
During the application review process, the surrounding property owners and residents living within 500 feet of the Project site were notified of the application submittal and later were notified of the Zoning Administrator consideration of the Project, as required by the Municipal Code. Three notices mailed to the surrounding owners and residents were returned by the Postal Service as undeliverable, which are in the Project file. The notices sent to the Appellants were not received by the City as returned mail. The appeal does not specify who did not receive the public notice. The notice was prepared and distributed properly as required by the Municipal Code and does not constitute grounds for granting the appeal.
3. Appellants’ contend that a CEQA guideline that is to be applied to all Class I Categorical Exemptions is - Does the Project fit the general rule that there is no possibility of the Project having an impact on the environment. (14-CCR 15061 (B) (3).) Appellants also contend that the City was aware of on-going violations of its Noise Control Ordinance at the Project site and that this violation, per the City’s Noise Control Ordinance, constitutes an environmental violation. Lastly, the Appellants also claim that the following CEQA Guidelines Exceptions are applicable to the Class 1 Existing Facilities Categorical Exemption for the Project:
1. Location Exception: A project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant (15300.2(a));
2. Cumulative Impacts Exception: Exemptions are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant (15300.2(b));
3. Significant Effect Exception: An exemption shall not be used for a project where there is a reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances (15300.2(c)).
Staff Response to Item 3 above (CEQA Exemption 15061 (B) (3)):
The Appellants’ contention that the “General Rule” exemption should be applied to all Class I Categorical Exemptions, and thus to this Project, is not consistent with the proper application of CEQA Guidelines Section 15061, “Review for Exemption.” This CEQA section indicates that the General Rule and Categorical Exemptions are separate classes of exemptions, and the General Rule exemption is not required to be applied to all exemptions. Staff reviewed the Project and found that the Project includes a minor alteration of the existing private structure with no expansion of the existing use. Therefore, staff recommended the Class 1 Existing Facilities Categorical Exemption, not the General Rule exemption, as the most appropriate type of CEQA exemption for the Project.
Staff Response to Item 3.1 above (CEQA Exception 15300.2(a)):
Categorical Exemptions, in general, are subject to the Exceptions listed in CEQA Guidelines Section 15300.2. The Appellant listed three of these Exceptions which they claim are applicable. The Class 1 Existing Facilities exemption which applies to the Project is not subject to the first Exception listed by the Appellants because CEQA guidelines Section 15300.2(a) specifically states that the exemptions that are subject to the first Exception (i.e., the Location Exception) are limited only to Classes 3, 4, 5, 6 and 11, and does not include Class 1.
Staff Response to Item 3.2 above (CEQA Exception 15300.2(b)):
The Project would not result in cumulative impacts that would trigger the second Exception because the Project is a “one-off” stand alone project that includes replacing the existing wooden roof shingles, façade elements and roof-mounted wall sign, new tower element and upgraded façade design and materials, a new wall sign, re-painting of the sides and rear of the building to match the existing buildings, and the addition of exterior lighting and landscaping to the store entry. In addition, as discussed above, these improvements do not alter or affect the condensers located at the rear portion of the roof of the building.
Staff Response to Item 3.3 above (CEQA Exception 15300.2(c)):
Exception 15300.2(c), regarding unusual circumstances, does not apply to the Project because there is no evidence that there is a reasonable possibility that the Project will have a significant effect on the environment due to unusual circumstances. The Appellants’ argument that unusual circumstances exist relate to enforcement of the Noise Control Ordinance. As discussed above, the Project is a stand-alone façade improvement project; the Project does not have anything to do with noise issues and application of the unusual circumstance Exception is inapplicable.
Conclusion:
Staff’s review and analysis found that the appeal does not have merit because the Project is a façade remodel of the front of the existing structure, including additional improvement elements around and adjacent to the structure, as discussed herein, that do not in any way affect the existing condensers or any part of the structure near the condensers. The Project would not have a potential to create potential noise impacts that could adversely impact the adjacent residential area. Thus, the noise issue is not related to this Project. Staff has also determined that CEQA Exemption 15061 (B) (3) and CEQA Exceptions 15300.2 (a-c) are inapplicable to the Project. The information that was provided to the Zoning Administrator for consideration was complete and relevant to the Project and the public notice was prepared and distributed properly as required by the Municipal Code. Therefore, staff finds that there is no basis under CEQA or any Municipal Code sections to grant the appeal.
Currently, there is an active code enforcement case for building without a permit for the Vons condenser units, which is in process. Vons has submitted a new building permit application and noise report to address this issue, which are currently undergoing review.
The Project site is located in the City limits. The City Noise Ordinance (CVMC 19.68.030) regulates noise generated at the Project site, up to the City/County boundary, which lies between the Project site and Appellant’s homes. The Noise Ordinance (CVMC 19.68.030.3) states:
“Where doubt exists when making identification of receiving land use, the Director of Development Services may make an interpretation.”
The Appellants live in the unincorporated County area. The City does not have jurisdiction to enforce another City’s Noise Ordinance beyond the City boundary. Therefore, the Director has determined that the City enforce Chula Vista’s noise thresholds at the City/County boundary that are applicable to the Project site. The applicable commercial exterior noise limits of 60 dBa from 10 pm to 7 am and 10 pm to 8 am weekends, and 65 dBa from 7 am to 10 pm weekdays and 8 am to 10 pm, weekends apply to the site.
Staff recommends that the noise issue be resolved through more appropriate channels, such as through enforcement of the City Noise Ordinance through the building permit process.
Based upon the entirety of the above analysis, staff further recommends denial of the appeal and approval of the proposed Project, subject to the conditions contained in the attached Zoning Administrator Notice of Decision, Case No. DR-15-0010, dated November 3, 2015.
DECISION-MAKER CONFLICT
No Property within 500 feet
Staff has reviewed the property holdings of the City Council members and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(11), for purposes of the Political Reform Act (Cal. Gov’t Code §87100,et seq.).
Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
LINK TO STRATEGIC GOALS
The City’s Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy Community, Strong and Secure Neighborhoods and a Connected Community. The Project implements the Strong and Secure Neighborhoods Strategic goal by providing construction of a development project in a manner that ensures code compliance, public health and safety of the community.
CURRENT YEAR FISCAL IMPACT
There are no fiscal impacts during the current fiscal year from the processing of the project. All costs for the project processing including the appeal are covered by the deposit accounts paid for by the applicant. The Appellant paid the required filing fee for the appeal. Costs associated with the processing of future implementing permits, will also be covered by permit fees or deposit accounts.
ONGOING FISCAL IMPACT
The Project is privately owned and operated and will not create future expenditures for the City associated with approval of the item, including facility maintenance and operations.
ATTACHMENTS
1. Locator Map
2. Zoning Administrator Final Notice of Decision
3. Appeal Application Form and attachments
4. Site Plan, Elevations and Photos.
Staff Contact: Richard Zumwalt, Associate Planner/Project Manager, Development Services Department (619-691-5255).
J:\Attorney\MichaelSh\Compton-Vons ZA Appeal\CC\CC-StfRpt-VonsAppeal-2.29.16-FINAL.docx