2600 Tenth Street A DJUSTMENTS

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 FEBRUARY 28, 2008 2600 Tenth Street Variance #07-10000132 to operate a child care center for children of Pixar employees and on-site employees within the ground floor of a media/arts center (MULI, SBR, GMS) I. Application Basics A. Zoning Permits Required: Variance, under BMC Section 23B.44.030 B. CEQA Determination: The City prepared an Initial Study and Mitigated Negative Declaration (IS/MND) pursuant to Section 15063 of the CEQA Guidelines. The IS/MND was circulated for public review and comment on February 7, 2008. The public comment period ends February 28, 2008. C. Parties Involved: Applicant/Property Owner: Wareham Development, 1120 Nye Street, Suite 400, San Rafael, CA 94901 2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: zab@ci.berkeley.ca.us

2600 TENTH STREET ZONING ADJUSTMENTS BOARD Page 2 of 3 February 28, 2008 II. Background The Zoning Adjustments Board considered the proposed project at its February 14, 2008 meeting. Following public comment, the Board directed staff to prepare findings supporting the approval of the project and continued consideration of the project to its February 28, 2008 meeting. In addition, staff prepared an Initial Study, with a Mitigated Negative Declaration, evaluating the possible environmental impacts either on the environment or on the children using the facility. This staff report addresses these issues. III. CEQA Initial Study and Proposed Mitigated Negative Declaration A. Introduction On February 7, 2008, the City posted copies of the Notice of Intent to Adopt Mitigated Negative Declaration at the project site. Copies of the Initial Study and Proposed Mitigated Negative Declaration were also made available to the public on the City s web site, at the Central Library, and the Zoning counter at the City s Permit Service Center. The public comment period for the Proposed Mitigated Negative Declaration ends on February 28, 2008. The Board will receive public testimony regarding the adequacy of the environmental analysis at the meeting. The Board can take action on the project at its February 28, 2008 meeting. B. Summary of Environmental Impacts Identified by Initial Study The Initial Study evaluates the conversion of 9,961 square feet of existing office and storage space to a child care center and 31 spaces of the parking lot for an outdoor play area. The Initial Study is intended to adequately evaluate and disclose the impacts of the project that the Board will ultimately act on. The Initial Study identifies the following potentially significant environmental impacts requiring mitigation. The specific mitigation measures recommended by the Initial Study are listed in the Proposed Mitigated Negative Declaration, which has already been distributed to the Board, and as conditions in the Findings and Conditions (Attachment 1). Noise. To minimize the impacts of construction noise on nearby residents and other sensitive receptors to the maximum extent feasible, Mitigation Measure XI.1 requires that the applicant apply noise control practices during construction. In addition, the ambient noise levels at the site currently fall in the acceptable range for child care centers. However, neighboring buildings to the east (1050 Parker) have been approved for demolition. These buildings may provide sound attenuation to the site from noise levels along San Pablo Avenue. Mitigation Measure XI.2 requires a noise report be prepared one month after the buildings have been demolished, documenting the ambient noise File: G:\LANDUSE\Projects by Address\Tenth\2600\VAR 07-10000132\final documents\zab Staff Report 022808 mtg.doc

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET February 28, 2008 Page 3 of 3 levels at the site. The mitigation also requires this noise report address any sound attenuation requirements if the noise levels fall into the unacceptable range. Air Quality. Mitigation Measure III.1 requires incorporation of a carbon filter into the Heating Ventilation and Air Conditioning (HVAC) system for the child care center to remove acrolein from interior air. The project site s location near a major transit corridor (San Pablo Avenue) contributes to a detection of acrolein that exceeds the target threshold. While the acrolein level detected on-site is lower than that found on a national average, the mitigation measure will reduce the health impact for children at the child care center to a less than significant level. In addition to the project-specific Mitigation Measures identified above, the project will be subject to all of the City s standard conditions of approval and other requirements that are applicable to construction projects. Such requirements and procedures are also in place to minimize the environmental consequences of construction projects. IV. Recommendation Because of the project s consistency with the General Plan, and minimal impact on surrounding properties, Staff recommends that the Zoning Adjustments Board: A. ADOPT the proposed mitigated negative declaration; and B. APPROVE Variance #07-10000132, pursuant to Section 23B.44.030 and subject to the attached Findings and Conditions (see Attachment 3). Attachments: 1. Findings and Conditions 2. Correspondence Please note that the Notice of Pubic Meeting and Intent to Adopt Negative Declaration, Proposed Mitigated Negative Declaration and Initial Study were delivered to the Board members as part of their February 14 th packet. Staff Planner: Shawna Brekke-Read, brekkeread@california.com, (510)482-4732 and Gisele Sorensen, GSorensen@ci.berkeley.ca.us, (510) 981-7410 File: G:\LANDUSE\Projects by Address\Tenth\2600\VAR 07-10000132\final documents\zab Staff Report 022808 mtg.doc

2600 Tenth Street Variance #07-10000132 Attachment 1 Findings and Conditions FEBRUARY 28, 2008 CEQA FINDINGS 1. The project is subject to the provisions of the California Environmental Quality Act (CEQA, Public Resources Code 21000, et seq.) An Initial Study has been prepared, finding that mitigation measures will reduce potential environmental impacts to a less than significant level. A Mitigated Negative Declaration and Initial Study were circulated for public review and comment. GENERAL NON-DETRIMENT FINDING 2. Pursuant to Berkeley Municipal Code Section 23B.32.040, the Zoning Adjustments Board finds that the proposed Child Care Center, under the circumstances of the 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 such 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: A. An Initial Study was prepared to evaluate the potential environmental impacts that could result from the proposed project, consistent with the California Environmental Quality Act. While potential impacts were identified relating to noise and air quality, all of the impacts could be mitigated to a less than significant level. These mitigations and their associated monitoring requirements have been incorporated into the project s conditions of approval below (conditions #21, 23 and 28). B. The proposed child care center s 105 on-site parking spaces will exceed the MULI district s parking requirements by 27 spaces, even though the project converts 31 parking spaces to outdoor play area. C. The project site plan designates sufficient parking spaces to accommodate the nine child care employees and drop-off/pick-up areas for off-site Pixar employees. The applicant s parking survey, reviewed by City Traffic Engineering staff, found 63 vacant on-site parking spaces during the peak parking demand (4 P.M.).

FINDINGS AND CONDITIONS 2600 TENTH STREET Page 2 of 9 February 28, 2008 D. The proposed child care center will not be detrimental to the neighborhood because it will help maintain the full range of land uses and economic activities in an area that contains a mixture of land uses, including restaurants, automotive services, vacant offices, live/work spaces, warehousing, a bank, and vacant buildings approved for demolition. E. The child care center is clearly ancillary to the existing on-site and off-site multimedia uses, and will comprise only 8.5% of the total floor area of the building and approximately 20% of the existing parking lot. F. The proposed child care center will not be detrimental to future uses in the area because the MULI district limits the types of uses that are allowed in the area, even though compatibility with a child care center would have to be addressed as part of discretionary review for any new proposals for heavy industrial use in the immediate vicinity of the center. G. The MULI district identifies child care centers as protected uses and the West Berkeley Plan and General Plan promote a mix of uses. VARIANCE FINDINGS 3. Pursuant to Berkeley Municipal Code Section 23B.44.030.A.1, the Zoning Adjustments Board finds that there are exceptional or extraordinary circumstances or conditions applying to the land, building or use referred to in the application, which circumstances or conditions do not apply generally to land, buildings and/or uses in the same District, for the following reasons: A. The two buildings on the project site were built in 1974 (2-story annex) and 1981 (five story tower constructed on top of a 2-story building, resulting in a 7-story tower) to house recording studios, screening rooms, and related media uses. They have been used as a multi-media center since they were constructed. B. The project site is unique because of the size of the building and the types of uses it houses. C. The 7-story tower is physically unique in West Berkeley, given its large size in relation to surrounding properties and its use as a media center involving creating, manufacturing, and previewing of a wide variety of media. D. The facility houses over 40 different businesses and organizations that contribute to an interactive arts community. To support the operation s long term success, over the years the owner s have invested in very specialized tenant improvements, including screening rooms and award-winning recording and mixing studios, which are protected uses in the MULI district.

2600 TENTH STREET FINDINGS AND CONDITIONS February 28, 2008 Page 3 of 9 E. The MULI district s prohibition of child care centers directly conflicts with the West Berkeley Plan, which allows Day Care Centers as a conditional use in the Mixed Use/Light Industrial area, and the General Plan, which promotes the improvement of the quality of life and private services availability for residents and workers. F. The applicant could theoretically choose to convert existing recording studios or screening rooms to a child care center with an administrative use permit because the MULI District allows the conversion of one protected use to another by the granting of an administrative use permit. 4. Pursuant to Berkeley Municipal Code Section 23B.44.030.A.2, the Zoning Adjustments Board finds that the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the subject property's owner for the following reasons: A. The buildings have been used as a multi-media center since they were constructed over 30 years ago. B. Since the project site s construction as a multi-media center, the media industry has changed, such that some of the facilities that are offered on the site (like recording studios) are more commonplace. The multi-media center needs to increase its on-site offerings to include services like a child care center in order to remain financially viable. C. Providing an employer-sponsored child care center for Pixar employees will allow the multi-media center to effectively compete with larger and newer facilities in neighboring cities. D. Multi-media center and Pixar employees sometimes work variable hours that make it difficult for them to use conventional child care services. E. An accessory use, on-site child care center that provides services to on-site and Pixar employees will allow the multi-media center to be competitive over the longterm. F. Providing child care at the project site to Pixar employees may effectively attract spin-off businesses to the multi-media center, and providing a child care center to on-site employees will help retain existing staff and current tenants. This will contribute to the growth and retention of this unique, long-time Berkeley business center, consistent with General Plan policies LU-1, LU-3, LU-33 and ED-3. 5. Pursuant to Berkeley Municipal Code Section 23B.44.030.A.3, the Zoning Adjustments Board finds that the establishment, maintenance or operation of the use or the construction of a building, structure or addition thereof, to be approved will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the

FINDINGS AND CONDITIONS 2600 TENTH STREET Page 4 of 9 February 28, 2008 applicant and will not, under the circumstances of the particular case, be materially detrimental to the public welfare or injurious to property or improvements in said neighborhood; and that the granting of the Variance will promote the municipal health, welfare and safety and benefit the City as a whole for the following reasons: A. The conversion of a portion of the facility to a child care center has been designed to be compatible with the existing multi-media center, without detracting from the surrounding neighborhood. B. No addition is proposed; therefore, light or view impacts will not result. C. The outdoor play area is beneficial because it will include design elements and landscaping that will contribute to a more attractive Ninth Street streetscape, as conditioned by the Design Review Committee. D. The landscaping and conversion of a portion of the parking lot will add shade and shade trees to the existing, largely unbroken parking lot. E. The child care center is beneficial to the community because it will promote economic health by encouraging the expansion and proliferation of the types of uses that already exist on the site. Those uses will in turn generate business for other types of uses in the City, including food service, health services and hotels. F. An Initial Study has been prepared to identify and evaluate the project s potential environmental impacts. With mitigations, the project will not result in any significant environmental impacts. G. In a 1990 study, the Department of General Services found that working parents add five to six miles to their daily commute for transporting their children to child care and school, and that the effect of this commute is 1,352 extra miles driven each year and an additional 56 pounds of auto emissions per person per year. Adding an on-site employer-sponsored child care center will reduce auto mileage and auto emissions. H. The California State Legislature has found that allowing and encouraging businesses to open onsite or nearsite employer-sponsored child care centers has had a number of positive effects for Californians, including reduced job absenteeism, closer parent-child relationships, and increased worker productivity. I. The project will further the purposes of the West Berkeley Plan by helping protect lower rents in the West Berkeley planning area because (as the applicant indicates in the Applicant Statement) higher rents can be achieved for the same floor area by renting to a use other than a child care center. J. Adding a work-based child care center would make the multi-media center fullservice by offering recording studios, mixing studios, screening rooms in a facility that provides child care.

2600 TENTH STREET FINDINGS AND CONDITIONS February 28, 2008 Page 5 of 9 STANDARD CONDITIONS 1. Conditions Shall be Printed on Plans The conditions of this Permit shall be printed on the first sheet of each plan set submitted for a building permit pursuant to this Variance, under the title Variance Conditions. The second sheet may also be used if the first sheet is not of sufficient size to list all of the conditions. The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2 by 11 sheets are not acceptable. 2. Applicant Responsible for Compliance with Conditions The applicant shall ensure compliance with all of the following conditions, including submittal to the project planner of required approval signatures at the times specified. Failure to comply with any condition may result in construction being stopped, issuance of a citation, and/or modification or revocation of the Variance. 3. Uses Approved Deemed to Exclude Other Uses (Section 23B.56.010) A. This Permit authorizes only those uses and activities actually proposed in the application and exclude other uses and activities. B. Except as expressly specified herein, this Permit terminates all other uses at the location subject to it. 4. Modification of Permits (Section 23B.56.020) No change in the use for which this Permit is approved is permitted unless the Permit is modified by the Zoning Adjustments Board, in conformance with Section 23B.56.020.A. Changes in the plans for the construction of a building or structure, may be modified prior to the completion of construction, in accordance with Section 23B.56.030.D. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board s policy adopted on May 24, 1978, which reduce the size of the project. The Zoning Officer may also approve a maximum two-foot variation to Board approved plans, provided, that such variation does not increase a structure s height, reduce the minimum distance to any property line, and/or does not conflict with any special objective sought by the Board. 5. Plans and Representations Become Conditions (Section 23B.56.030) Except as expressly specified herein, the site plan, floor plans, building elevations and any additional information or representations submitted by the applicant during the Staff review and public hearing process leading to the approval of this Permit, whether

FINDINGS AND CONDITIONS 2600 TENTH STREET Page 6 of 9 February 28, 2008 oral or written, which indicated the proposed structure or manner of operation are deemed conditions of approval. 6. Subject to all City and Other Regulations (Section 23B.56.040) The approved use and/or construction are subject to, and shall comply with, all applicable City Ordinances and laws and regulations of other governmental agencies. 7. Exercised Permit for Use Survives Vacancy of Property (Section 23B.56.080) Once a Permit for a use is exercised and the use is established, that use is legally recognized, even if the property becomes vacant, except as set forth in Standard Condition #8 below. 8. Exercise and Lapse of Permits (Section 23B.56.100) A. A permit for the use of a building or a property is exercised when, if required, a valid City business license has been issued, and the permitted use has commenced on the property. B. A permit for the construction of a building or structure is deemed exercised when a valid City building permit, if required, is issued, and construction has lawfully commenced. C. A permit may be declared lapsed and of no further force and effect if it is not exercised within one year of its issuance, except that permits for construction or alteration of structures or buildings may not be declared lapsed if the permittee has (1) applied for a building permit or (2) made substantial good faith efforts to obtain a building permit and begin construction, even if a building permit has not been issued and/or construction has not begun. ADDITIONAL CONDITIONS Pursuant to BMC Section 23B.32.040.D, the Zoning Adjustments Board attaches the following conditions to this Permit: Prior to Issuance of Any Building Permit 9. Prior to applying for a building permit, the applicant shall file an Address Assignment Request Application with the Permit Service Center (2120 Milvia Street) for any address change or new address associated with this Variance. The new address(es) shall be assigned and entered into the City s database prior to the applicant s submittal of a building permit application. 10. Prior to issuance of a building permit, the applicant shall provide the project planner with the name and telephone number of the individual empowered to manage

2600 TENTH STREET FINDINGS AND CONDITIONS February 28, 2008 Page 7 of 9 construction noise from the project. The individual s name, telephone number, and responsibility for noise management shall be posted at the project site for the duration of construction in a location easily visible to the public. The individual shall record all noise complaints received and actions taken in response, and submit this record to the project planner upon request. Noise Management Individual Name Phone # 11. Prior to issuance of a building permit, the applicant shall complete a Construction and Demolition Recycling Plan, submit the plan to the Solid Waste Management Division for approval, and attach the approved plan to the construction drawings. The plan is available at www.ci.berkeley.ca.us/onlineservice/forms.htm#planning (look under Land Use Planning ) or by contacting Land Use Planning at 510-981-7410. After completing the form contact Solid Waste Management at 981-6368 for approval. City Monitor: Solid Waste Mgmt. Staff Signature Date 12. Prior to issuance of a building permit, the applicant shall secure the City Traffic Engineer s approval of a construction traffic management plan. Please contact the Office of Transportation at 981-7010, or 1947 Center Street, 3 rd floor, and ask to speak to a traffic engineer. In addition to other requirements of the Traffic Engineer, this plan shall include the locations of material and equipment storage, trailers, worker parking, a schedule of site operations that may block traffic, and provisions for traffic control. The City Zoning Officer and/or Traffic Engineer may limit off-site parking of construction-related vehicles if necessary to protect the health, safety, or convenience of the surrounding neighborhood. City Monitor: Traffic Engineer Signature Date 13. The project shall conform to the plans and statements in the Variance. 14. Prior to building permit issuance, the applicant shall undergo final design review, addressing the issues raised during Preliminary design review: fencing design, materials and colors, location and species of trees, and bollards. During Construction: 15. If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.

FINDINGS AND CONDITIONS 2600 TENTH STREET Page 8 of 9 February 28, 2008 16. Subject to approval of the Public Works Department, the applicant shall repair any damage to public streets and/or sidewalks by construction vehicles traveling to or from the project site. 17. All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one-eighth millimeter thick and secured to the ground. 18. All active construction areas shall be watered at least twice daily, and all piles of debris, soil, sand or other loose materials shall be watered or covered. 19. Trucks hauling debris, soil, sand, or other loose materials shall be covered or required to maintain at least two feet of board. 20. Public streets shall be swept (preferably with water sweepers) of all visible soil material carried from the site. 21. Mitigation XI.1 (Construction Noise Controls): Construction noise shall be reduced to the maximum extent feasible through the application of noise control practices including, but not limited to the following: Vehicle engines and equipment motors shall be properly maintained and equipped with mufflers achieving the greatest feasible noise reduction. Rather than impact equipment, quieter procedures such as drilling shall be used. Where unavoidable, impact tools (e.g., demolition hammers) shall be hydraulic or electric rather than pneumatic to avoid noise from compressed air exhaust. Where use of pneumatic tools is unavoidable, air exhaust mufflers shall be used (these can reduce exhaust noise by up to 10 db). External jackets on tools shall be used whenever feasible (these can reduce noise by up to 4 db). Stationary noise sources (e.g., air compressors, generators) shall be located to minimize noise transmission over a property line, equipped with adequate mufflers, and enclosed within insulated sheds. The Zoning Officer shall have authority to require additional noise controls and/or limitations on construction activities in the event of significant noise impacts on surrounding properties. City Monitor: Building & Safety Signature Date

2600 TENTH STREET FINDINGS AND CONDITIONS February 28, 2008 Page 9 of 9 Prior to Issuance of Occupancy Permit or Final Inspection: 22. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated November 12, 2007, subject to changes resulting from Final Design Review. 23. Mitigation Measure III.1. (Use of carbon filters): The applicant shall incorporate carbon filters within the Heating Ventilation and Air Conditioning (HVAC) system for the child care center; the filters shall be maintained on a routine basis. Prior to issuance of any permit to install such a system, the applicant shall demonstrate to the Zoning Officer the efficacy of the system and a maintenance plan to ensure effective operation. The system shall be operating prior to occupancy of the Child Care Center. City Monitor: Zoning Officer Signature Date At All Times: 24. All exterior lighting shall be shielded and directed downward and away from property lines to prevent excessive glare beyond the subject property. 25. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights-of-way. Drainage plans shall be submitted for approval of the Building & Safety Division and Public Works Department, if required. 26. The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way. 27. An interior air filtration system shall be installed and maintained to reduce the particulate matter and acrolein in interior air to a less than measurable level. 28. Mitigation Measure XI.2 (Exterior Noise Levels) Within one month of the demolition of the existing buildings at 1050 Parker, the applicant shall submit to the Zoning Officer a report documenting ambient noise levels at the site. If noise levels fall into the unacceptable range for child care centers, the report shall recommend the installation of sound attenuation measures (such as a wall) to reduce noise to an acceptable level. The report shall consider the eventual construction of new buildings at the 1050 Parker site and determine if the noise barrier shall be permanent or temporary. Sound attenuation, if required, shall be installed within three months of report submittal. City Monitor: Zoning Officer Signature Date