Commission also to discuss cell tower appearance

Benicia Planning Commission will hear an appeal Thursday of a use permit for a bed and breakfast at 963 Jefferson St., then look at the visual impacts of new cell towers in the city.

Principal Planner Amy Million wrote the commission Jan. 29 that interim Community Development Director Dan Marks decided Dec. 18, 2014, that owner Stephen David could operate a bed and breakfast of up to 10 rooms, of which eight would be guest rooms and two would be manager rooms, at his building.

Converting the structure for that use would require interior changes to the first and second floors and the addition of a fire escape on the second floor on the north façade.

A historic building in the Benicia Arsenal Historic District, the building also will have a restaurant in its lowest floor, a former basement, and a parking lot has been approved, as well.

However, attorney Dana Dean, representing AMPORTS, the company that operates the Port of Benicia, filed an appeal received Jan. 9, accompanied by a 15-page letter and another two pages listing seven General Plan provisions she said are violated by the proposal.

Among those points, Dean said the bed and breakfast doesn’t use topography and landscaping as a buffer between residential and industrial uses; presents a substantial risk that could prejudice others considering Benicia as a place for their industrial activities; doesn’t consider issues related to public access, security and safety or impacts on port activities; reduces the levels of public utilities and services in existing neighborhoods below city standards; fails to preserve the Lower Arsenal’s “unique historic character”; and is likely to interfere with such operations as Jefferson Street Mansion.

Dean’s letter said her client owns property near David’s building, and she posits that Marks’s December decision “was made in error and in abuse of the Zoning Administrator’s discretion, is not supported by the record, is inconsistent with the General Plan and Zoning Ordinance and is contrary to existing law.”

In her report, Million wrote that the Lower Arsenal “is truly unique as it is the only area within the city that supports residential, commercial and industrial uses through its General Plan goals, zoning district regulations and existing infrastructure.”

She wrote that General Plan goal 2.11 is to “encourage the residential and continued evolution of the lower Arsenal into historic/cultural/commercial/industrial center of mutually compatible uses.” She added that David’s building “is an example of the continued evolution of the lower Arsenal through the reuse of a historic residential building for commercial uses,” and compared it to Jefferson Street Mansion, at 1063 Jefferson St., which she said has a similar mix of services.

Million wrote that putting a bed and breakfast at the building, formerly a residence known as the Officers Duplex, “expands the economic vitality of this historic landmark structure, and encourages its continued retention and preservation.” She added that a bed and breakfast would not be a detriment to existing residential, commercial or industrial uses, adding that it is on the Jefferson Street ridge and buffered from the port by a mix of uses.

Dean wrote that the city’s contention that the project can be exempt from environmental review under the California Environmental Quality Act (CEQA) isn’t supported, but Million disagreed, saying the project converts an existing building into a contemporary bed and breakfast while preserving the property’s historic integrity.

Marks’s decision limits Friday through Sunday construction noise from April 1 to Nov. 30 to hours which David and the operators of the Jefferson Street Mansion, a wedding site, agreed, Million wrote.

And she disagreed with Dean’s contention that it was an improper mitigation measure, calling it “a documented good neighbor gesture.”

She also disagreed with Dean’s point that the project had been segmented, which is prohibited under CEQA, writing, “The entirety of the proposed bed and breakfast was analyzed appropriately under CEQA.”

In addressing Dean’s contention that the project violates Benicia Municipal Code preventing residential use on the ground floor, Million wrote that it is common for managers to live on-site, and that a guest room and bathroom on the first floor complies with Americans with Disabilities Act accessibility requirements.

That act allows exceptions when following accessibility standards would threaten or destroy the significance of a historic building. “If all guest rooms and other amenities were located on the second floor, which is only accessible via stairs, then the Act could require the installation of an elevator so that the accommodations are equally accessible to someone who is disabled,” Million wrote. Given the historic nature of the building, she wrote, the first-floor guest room has been proposed to avoid the negative impact of an elevator, and she didn’t find the design “an enforcement issue.”

Nor did Million find a conflict with other uses in the district, and she recommended the commission deny Dean’s appeal and instead uphold Marks’s approval of the use permit.

The commission’s discussion on cell towers and the cumulative visual impact of telecommunication equipment is one of the panel’s priority list of projects, Million wrote of Thursday’s second topic.

Benicia regulates new wireless telecommunication equipment as well as modifications to existing equipment, she wrote the commission Jan. 28. The city updated its ordinance in 2006 to address changes that had taken place since it first was adopted in 1987.

Since 1996, Benicia has approved about 30 new wireless telecommunications equipment applications as well as subsequent modifications and upgrades in 26 different cites inside the city, Million wrote. Those include antenna additions and equipment cabinets.

New federal mandates were established in the Middle Class Tax Relief and Job Creation Act of 2012, changing requirements for modifications, collocation and removal of wireless telecommunications towers and base stations. Those rules were clarified by the Federal Communications Commission in a report and order released Jan. 8.

At the same time, wireless telecommunication is a rapidly advancing technology, Million wrote. Companies are being urged to provide faster and more reliable services. But in Benicia, most companies are expected to modify their existing equipment instead of asking to build new towers.

Million wrote that some minor modifications to existing equipment can be made without requiring planning reviews, though larger projects need a use permit, design review or both.

Under the new federal law, Benicia won’t need to modify how it reviews requests to install new equipment, but will change how it reviews modifications.

The new law requires governments to approve eligible requests that don’t substantially change the physical dimensions of existing towers or base stations, and if no action is taken within 60 days of the approval, construction can proceed once a carrier provides notice it would start.

The FCC defined terms and explained what it considers “substantial” changes in the equipment.

Million wrote that city staff and decision makers need to be educated about the new law, and the city’s zoning ordinance would need to be modified to reflect the changes and possibly tighten regulations on new equipment.

In addition, the application procedure would need to be updated and include a checklist to determine whether a project is eligible for review.

Million will ask the Planning Commission to talk about the changes and, if members desire, send a recommendation on zoning code text amendments to the City Council. In addition, she wrote, city employees also are drafting a zoning text amendment that they will present to the commission before sending to the Council.

Also Thursday, Million will give the commission a report on changes in CEQA guidelines affecting how transportation environmental impacts, particularly congestion and delay, are measured.

Instead of level of service, the traditional method, the change would consider vehicle miles traveled, Million wrote.

The changes began under Senate Bill 743, which was signed into law by Gov. Jerry Brown on Sept. 27, 2013, to make sure mitigation is made for traffic impacts, such as noise, air pollution and safety concerns.

The California Office of Planning and Research (OPR) was required to submit revisions to CEQA compliance guidelines, and that office has decided those guidelines should apply beyond what are called “transit priority areas.”

Transit priority areas are those within a half mile of a major transit stop, either existing or planned; they are designed to align regional transportation, land use, housing and greenhouse gas emissions planning in a new element of the Metropolitan Transportation Plan.

That new element, the Plan Bay Area, is the Sustainable Communities Strategy, and was completed for the San Francisco Bay Area by the Association of Bay Area Governments.

One goal is to reduce emissions from passenger vehicles to meet targets set by the California Air Resources Board.

The plan is trying to do this through focusing new development, particularly residential, near existing and projected jobs, to reduce commutes or to make public transit an appealing alternative.

Infill development tends to impact traffic at nearby intersections, Million wrote, and costs and uncertainty associated with the CEQA process have discouraged it. The changes are designed to promote infill and transit-oriented development to reduce vehicle miles traveled and the resulting greenhouse gas emissions.

The OPR draft has four criteria for determining how significantly transportation impacts the are: vehicle miles traveled, with lead agencies allowed to set thresholds of significance; induced vehicle travel and transportation projects, in which lead agencies would consider potential growth-inducing impacts within the transportation analysis when a project would change road capacity in a congested area — something that wouldn’t apply to rural areas, Million wrote; local safety and how the project’s transportation might change that; and methodology, or what is described as “the rule of reason.” For this, the agency would be asked to exercise professional judgment and consider analysis beyond its own political boundary.

Million wrote that the changes would apply to new developments that haven’t yet undergone environmental review. She wrote that the new guidelines would become effective Jan. 1, 2016.

The Planning Commission will meet at 7 p.m. Thursday in the Council Chamber of City Hall, 250 East L St.