Panel engages in lengthy discussion on incompatible uses in Industrial Park

Stephen David saw the Planning Commission affirm his request for a use permit to operate a bed and breakfast at 963 Jefferson St. Thursday night,

But AMPORTS attorney Dana Dean, who had hoped to see the permit denied, gained a victory for her client when the panel added a condition of approval requiring David to acknowledge that neighboring industries may produce noise, dust and odors as a part of their operations.

And so when the meeting concluded, no one was completely happy — including the commission after members heard Benicia Industrial Park Association President Jasmin Powell say that bed and breakfast operations, along with dance studios, churches and fitness centers were proliferating in places zoned for industries.

“It’s not a win,” David said after the meeting. He told the Planning Commission his attorney had told him not to sign any declaration that would put “a black mark” on his property’s title.

But the condition of approval the commission added to his use permit fell short of the deed restriction Dean had sought.

Dean reminded the commission of “airport syndrome,” in which residents are allowed to move next to such existing operations as railroads, ports, airports and industries — only to file complaints about the noise and other impacts of their industrial neighbors. The Benicia Arsenal historic district, a mixed-use area where David’s property lies and where AMPORTS operates the Port of Benicia, is no exception, she said.

Dean wrote the panel Wednesday, citing a Jan. 23, 2003, zoning administration decision to issue a use permit for the Jefferson Street Mansion bed and breakfast that is next to David’s property. “That approval was expressly conditioned on the recordation of a deed restriction,” she wrote.

She quoted the condition, that a declaration acknowledging “that the adjacent land use generated noise, and that the applicant undertakes the operation of the Bed and Breakfast (B&B) use in full knowledge and acceptance of the potential impact that adjacent uses may have on the B&B. … The declaration shall run with the land to provide notice to successors in interest.”

The commission agreed to use that verbiage, with Dean asking them to add “dust” and “odors” as well as “noise.” But the panel chose to require the declaration only as a condition of the permit approval, rather than as a deed restriction.

That means the declaration remains effective so long as the building and land is used for a bed and breakfast, no matter who owns it, contract attorney Kat Wellman explained. But if the use changes, the declaration no longer would apply.

Had the declaration been made part of interim Community Development Director Dan Marks’s original administrative zoning decision to issue the use permit, “I might not be here,” Dean told the panel.

Dean said she has spent a decade asking city officials and advisers to halt the influx of “incompatible uses in the Industrial Park.”

She described how lawfully operating industries in the Arsenal have been the subject of complaints by Jefferson Street residents, and how her own client received complaints when it changed its lighting.

As the economy improves and there is more activity in the port and in other Benicia industrial areas, the complaints will increase, she said. Likewise, the city of Benicia is investing in its industrial areas, hoping that modernization will attract new tenants — but when those who live in industrial areas complain, Dean said, the city tells companies, “We don’t support you.”

Buffers intended to reduce complaints from residents “do not work,” she said.

“The way to fix it is not to allow more incompatible uses,” she said. “It’s a recipe for disaster. Please stop it. Don’t set up people for disappointment.”

Powell agreed. “It’s another example of residential and other uses encroaching on industries,” she said. She said she is glad no one lives near her company, so she is spared complaints about its three-shift operations.

But David said he has never objected to AMPORTS or the port operation. “I have never heard a ship. I’ve been there 30 years.” When one plant’s compressor made excessive noise, he simply spoke to the company’s owner, he said. “I think they’ve corrected it.”

David said he had no problem with the declaration language, so long as it didn’t come in the form of a deed of trust. His lawyer had warned him against “stigmatizing” his property, he explained.

He told the commission he spent five years getting his application through the Historic Preservation Review Commission, and how a previous community development director, Charlie Knox, had told him he could only use his historic building, built in 1860 to house Army officers, as a duplex. “I’ve been deliberately railroaded,” he said.

He has been seeking to open a 10-bedroom B&B at the site, with eight rooms for guests, including one on the ground floor to comply with Americans with Disabilities Act mandates. The remaining two would be managers’ quarters. The building also would have a restaurant that would serve both guests and the public.

Only Commissioner Belinda Smith, who agreed with concerns about incompatible uses, opposed issuing the permit. Because of a conflict of interest, Commissioner Suzanne Sprague recused herself.

In her objection, Smith also questioned the HPRC’s approval of David’s plans, and said the project should have undergone more extensive California Environmental Quality Act review.

She lamented the city’s failure to adopt a formal mixed use plan for the historic district, saying that plan would have resolved the matter.

She said she also felt badly for David, since he has spent years on the project. “The process is confusing,” she said.

The concern about incompatible or nonindustrial uses in industrial zones also arose when Geoff Quares sought a use permit for his studio at 4876 East Second St., where he moved Profaction Mixed Martial Arts from a downtown location.

The panel gave Quares unanimous approval of his permit.

He already had moved when city officials told him that because of the size of his studio, he would need commission approval.

His neighbors include a church and a dance studio, though the area is zoned for manufacturing, warehousing and distribution companies, which also operate in the area.

Powell spoke about incompatible uses during this discussion, telling the commission that truck drivers who cater to the park’s manufacturers were concerned about children being near the streets they travel.

While she said she didn’t want to stand in the way of Quares’s success, Powell said, “Nonindustrial uses are creeping in.”

Smith agreed. Reminding the panel the park is zoned for industries, she told them the city isn’t attracting industrial tenants “because they see little kids. We’re going to chase away tenants. We don’t have a policy to limit nonindustrial uses.”

She asked, “When do we make industrial nonviable?”

One of Quares’s clients said different types of uses don’t have to be incompatible. He described how Scott’s Auto Repair ran into similar compatibility questions when it moved to 3801 Sprig Drive. Yet that company has been operating without complaint, he said.

Principal Planner Amy Million reminded the commission that similar fitness companies had received authorization to open in the park.

She said the matter of such businesses moving there would be a scheduled topic of discussion for the panel at a future meeting.

In a third matter on the agenda, the commission recommended sending the Benicia General Plan Implementation Report, a document required by California Government Code, to the City Council after suggesting some rewording.

It also recognized Smith’s conclusion of her four-year term on the commission. Thursday was her final official meeting, and she did not seek reappointment.