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HomeMy WebLinkAboutPC Min 1997-10-08 if j . CITY OF SEAL BEACH PLANNING COMMISSION AGENDA for October 8, 1997 7:30 P.M. * City Council Chambers 211 Eighth Street, Seal Beach, CA 90740- Next Resolution: 97-35 I. PLEDGE OF ALLEGIANCE IT. ROLL CALL ill. AGENDA APPROVAL By Motion of the Planning Commission, this is the time to: (a) Notify the public of any changes to the Agenda; (b) Re-arrange the order of the Agenda; and/or (c) Provide an opportunity for any member of the Planning Commission, staff, or public to request an item is removed from the Consent Calendar for separate action. N. ORALCOM:MUNICATIONS . At this time, members of the public may address the Planning Commission regarding any items within the subject matter jurisdiction of the Planning Commission, provided that the Planning Commission may undertake no action or discussion unless otherwise authorized by law. v. CONSENT CALENDAR Items on the Consent Calendar are considered to be routine and are enacted by one motion unless prior to enactment, a member of the Planning Commission, staff or the public requests a specific item be removed from the Consent Calendar for separate action. 1. Approve Planning Commission Minutes of September 17, 1997 Meeting lution No. 97- - . The City of Seal Beach complies with the Americans With Disabilities Act of 1990. If you need assistance to attend this meeting, please telephone the City Clerk's Office at (562) 431-2527 at least 48 hours in advance of the meeting; thank you. 1 '. . . City of Seal Beach Planning Commission Agenda * October 8, 1997 3. Review and Approve: Resolution No. 97-_ A Resolution of the Planning Commission of the City of Seal Beach Finding That Proposed Amendment 97-1 to the Redevelopment Plan for the Riverfront Redevelopment Project Area of the Redevelopment Agency of the City of Seal Beach is Consistent with the General Plan of the City of Seal Beach and Recommending Approval of the Proposed Amendment. VI. PUBLIC HEARINGS 4. Revocation of Variance 87-2 Address: Applicant: Property Owner: Request: 222 Main Street City of Seal Beach Howard Brief Consider revocation of Variance 87-2 for lack of payment of required in-lieu parking fees. The Planning Commission's approval of Variance 87-2 permitted the remodel of a nonconforming commercial/residential structure to create a 100% commercial use without bri~g the property into conformity with existing zoning. Revocation, through the adoption of Resolution No. 97-_. Recommendation: VIT. SCHEDULED MATTERS 5. Presentation by Mark Brodeur of Urban Design Studio "Livable Communities". 6. Planning Commission Determination of Zoning [Continued from September 17, 1997] Tattoo Parlor VID. STAFF CONCERNS 2 The City of Seal Beach complies with the Americans With Disabilities Act of 1990. If you need assistance to attend this meeting, telephone the City Clerk's Office at (562) 431-2527 at least 48 hours in advance of the meeting; thank you. . . . City of Seal Beach Planning Commission Agenda * October 8, 1997 IX. COMMISSION CONCERNS X. ADJOURNMENT 3 The City of Seal Beach complies with the Americans With Disabilities Act of 1990. If you need assistance to attend this meeting, telephone the City Clerk's Office at (562) 431-2527 at least 48 hours in advance of the meeting, thank you. . . . Not Scheduled City of Seal Beach Planning Commission Agenda · October 8, 1997 1997 AGENDA FORECAST CUP 97-7 3900 Lampson Avenue Marriott Senior Living Services facility OCT 22 NOV 05 Tentative: NOV 19 DEe 03 DEe 17 Presentation by Urban Design Studio of Irvine, CA "Livable Communities" (40 minutes) CUP 94-4 CUP 96-2 ZC 97-1 VAR97-4 770 PCH Burger King indefmite extension. 12241 SBB Parasol Restaurant/ABC on patio. 941 PCH Shorehouse Restaurant/Billiard parlor B-46 Surfside Double Garage 4 The City of Seal Beach complies with the Americans With Disabilities Act of 1990. If you need assistance to attend this meeting, telephone the City Clerk's Office at (562) 431-2527 at least 48 hours in advance of the meeting; thank you. . . . City of Seal Beach Planning Commission Agenda * October 8, 1997 AGENDA FORECAST - 1998 IAN 06 IAN 20 FEB 03 FEB 17 MAR 03 MAR 17 APR 08 APR 22 MAY 06 MA Y 20 JUN 10 JUN 24 JUL 08 JUL 22 AUG 05 AUG 19 SEP 09 SEP 23 OCT 06 OCT 20 NOV 04 NOV 18 DEe 09 DEe 23 CUP 97-lIYucatan Grill @ 12147 SBB/ Review ABC & Amendments VAR 93-1 212 Main Final $7300 payment/in-lieu parking fees 5 The City of Seal Beach complies with the Americans With Disabilities Act of 1990. If you need assistance to attend this meeting, telephone the City Clerk's Office at (562) 431-2527 at least 48 hours in advance of the meeting; thank you. ,~ .- City of Seal Beach Planning Commission Minutes of October 8, 1997 Chairman Brown called the regularly scheduled Planning Commission meeting of October 8, 1997 to order at 7:30 p.m. in the City Council Chambers. The meeting began with the Salute to the Flag. " . Roll Call Present: Chairman Brown Commissioners Hood, Law, Larson, Yost Also Present: Deoartment of Develooment Services Lee Whittenberg, Director Craig Steele, Assistant City Attorney Barry Curtis, Associate Planner Joan Fillmann, Executive Secretary AQenda Approval Director Whittenberg asked the Minutes of September 17, 1997 reflect Commissioner Hood's absence was work related; staff will make this correction. He also requested Agenda items #5 and #6 be heard in reverse order. MOTION by Hood; SECOND by Yost to approve the Agenda as amended. . MOTION CARRIED: AYES: 5-0-0 Hood, Yost, Law, Larson, Brown Oral Communications There were no oral communications. Consent Calendar Commissioner Hood requested item #1 be pulled for separate consideration. MOTION by Hood; SECOND by Larson to approve the Consent Calendar as amended. 2. Plan Review 97-3 for 708 Central Avenue1 3. Resolution No. 97-38 re Proposed Amendment 97-1 to the Redevelopment Plan for the Riverfront Redevelopment Project Area. MOTION CARRIED: AYES: 5-0-0 Hood, Larson, Law, Brown, Yost . 1 Approval thru Resolution No. 97-37. City of Seal Beach Planning Commission * Minutes of October 8, 1997 . The Commission considered item #1 separately: . 1. Approve Planning Commission Minutes of September 17, 1997 meeting. MOTION by Law; SECOND by Yost to approve the Planning Commission Minutes of September 17,1997 as amended to show Commissioner Hood's absence being work-related. MOTION CARRIED: AYES: ABSTAIN: 4-0-1 Law, Yost, Larson, Brown Hood Public Hearina 4. Revocation of Variance 87-2 222 Main Street Staff Report Mr. Curtis delivered the staff report [Staff report on file in the Planning Department for inspection]. The applicant, the City of Seal Beach, requested Planning Commission consideration for revocation of Variance 87-2 for lack of payment of required in-lieu parking fees. The Planning Commission's approval of Variance 87-2 permitted the remodel of a nonconforming commercial/residential structure to create a 100% commercial use without bringing the property into conformity with existing zoning. . Currently the property owner, Howard Brief, owes a back parking fee of $17,000 from 1988 - 1997. The revocation of this Variance is the City's first step in assuring compliance with City Council Resolution No. 3684. The City will pursue all means possible and available to enforce this condition until such time as sufficient parking is provided or the in-lieu fees are paid. Commission Questions on Staff Report Commissioner Law asked what happens to this property and the five businesses operating on it if the Planning Commission revokes the Variance? Mr. Curtis said the property would no longer have adequate parking for the businesses. The City would seek to close the businesses on the property or whatever other means is necessary to get the in-lieu parking fees paid. . 2 . . . City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 Commissioner Hood questioned the issuance of the building permit, asking why the City issued a building permit to 222 Main Street without the in-lieu parking fees having been paid? Who initiated and initialed the permit? Who was in charge of the Building Department at the time the permit was issued? Mr. Curtis said he couldn't answer why the permit was issued because he wasn't working for the City at that time. To determine who initialed the permit he would have to review the microfiche as none of the present staff was here at that time. Mr. Whittenberg explained Ed Knight was Planning Director for a period of time. He replaced Mr. Knight when he left the City of Seal Beach and went to work at the City of Dana Point. Chairman Brown asked if revoking Variance 87-2 was the only way to collect the owed in-lieu parking fees? Mr. Steele explained the City issued a discretionary permit, Variance 87-2. The businesses cannot operate without a Variance and, therefore, Variance 87-2 is the only reason the businesses are operating at 222 Main Street. The payment of the in-lieu parking fees is a condition of Variance 87-2. If the conditions aren't complied with, Variance 87-2 can be revoked. Revocation is the most immediate method to gain compliance for fee payment. The City is not foreclosing any of its legal options to collect the money, including a civil court suit. Commissioner Brown asked if the City Attorney's Office felt this is the best way to approach this matter? Mr. Steele said yes, noting the City Attorney's Office unsuccessfully approached the property owner by letter in an attempt to collect the fees in that manner. The revocation method has been used with all of the other properties in arrears. The City collected all of those amounts with the exception of one business, which eventually did come before the Planning Commission and paid their fees. The City Attorney's Office felt that this was the best step in the short run to try to get this matter cleared up. Commission Yost asked if the other properties on Main Street are current on their in-lieu parking fees? Mr. Curtis said yes. Commissioner Hood stated Resolution No. 3684 is a matter of public record. He asked what documentation staff could provide showing attempts to communicate with the property owner and proof the property owner received the communications? Does the City have certified letter receipts demonstrating Mr. Brief received the letters and then refused to pay? 3 City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 Mr. Steele said the City Attorney's Office sent Mr. Brief a certified letter in July of . 1997. It was not responded to. He would check on proof of receipt. He knew Mr. Curtis communicated by mail and the City also has a letter from Mr. Brief, which requests documents. The City knows Mr. Brief was Noticed, was aware of this meeting and had requested City documents in advance of the hearing. Mr. Curtis made those documents available to Mr. Brief. Commissioner Hood asked if the City telephoned the property owner in the last 24 months? Would he be able to say he was unaware of the City's attempts to collect the in-lieu fees? Mr. Curtis said he had spoken with Mr. Brief in the last 24 months, the latest call being today. Mr. Brief would not be able to say he was unaware of the attempt to collect. Chairman Brown, contemplating a revocation's effect on the businesses operating at 222 Main Street, questioned staff on the amount of time it would take for the Variance to be revoked. He assumed that if the Planning Commission voted to revoke the Variance tonight, staff would return with a resolution to that effect in two weeks. After that, the Planning Commission's determination could be appealed to the City Council. It would take approximately one month before this Variance would be revoked and any businesses would be shut down. Mr. Steele agreed. . Public Hearina Howard Brief * Seal Beach Mr. Brief introduced himself as the property owner of 222 Main Street, saying he has owned the property for thirty years. Mr. Brief stated his belief that the in-lieu parking fees, as they relate to him, are illegal and he does not intend to pay them. He has not signed an agreement with the City. "I don't believe I should pay it. And I don't believe to revoke my Variance is going to bring anything but a lot more problems for all of us. Which I don't really want and I would like to avoid". Regarding the history of this building, Mr. Brief explained it was initially a retail store in front and a house in back. There came a time when the building had to be remodeled. The City did not allow residential uses over commercial uses, which he had. The City and he couldn't agree on how to remodel it. He made an agreement with the City, with then-Director of Development Services Ed Knight, that he would convert it to all commercial. . 4 City of Seal Beach Planning Commission * Minutes of October 8, 1997 . Regarding the documents relating to his property, Mr. Brief detailed what documents the City had on file and what documents he possessed. He said he wrote to the City requesting copies of all its documents on his property and the City had made those documents available to him. The City's file consisted of building plans, his original application, a staff report, a copy of the resolution issued, a copy of his appeal to the City Council, a copy of the next staff report and finally a copy of the Coastal Commission report. He said nothing was included on the final approval, the Coastal Commission's permit or his off-site parking. He felt the Planning Commission was at a disadvantage because all the documentation was not presented to them. Regarding the California Coastal Commission's requirements, Mr. Brief said he could not have remodeled his building without their permit. However, the Coastal Commission denied his application based on the fact that the City's in-lieu parking program was non-existent. He read from the Coastal Commission's report "Until the City inventories its parking assets, identifies opportunities and approves specific projects they do not have an in-lieu parking plan or a program and it is illegal to charge the fees.. He said there was no in-lieu parking plan until the Main Street Specific Plan was adopted in August of 1996. He alleged that until August 1996 anybody who paid, paid on some side agreement they made with the City. . Mr. Brief said the Coastal Commission wanted him to obtain off-site parking. To comply, he obtained a lease with 5t. Anne's Church on Tenth Street. He said the lease term is "forever", the lease specifies he rents eleven (11) spaces but in actuality he rents sixteen (16) and his consideration for this lease is maintenance of the spaces at the Church's request. Mr. Brief said he returned to the City and spoke with Ed Knight, telling him about his off-site parking lease at St. Anne's Church. He said Mr. Knight issued him the permit because he provided the off-site parking. He said he was told the City did not have an in-lieu parking program and the Planning Department would not be giving him a document because that document wouldn't be legal if he signed it. He stated there was no agreement for him to pay anything. Regarding a civil lawsuit, Mr. Brief questioned why the City doesn't sue him? He answered his own question by saying the City can't go after him civilly because it has to have a contract. He said the statute of limitation on a written contract is four (4) years and two (2) years on an oral contract. So the statutes of limitations have expired. Mr. Brief said he felt the City Attorney's Office is trying to pressure him into doing something that was illegal at the time. . Regarding bills for the in-lieu parking fees, this is the first bill he received. He stated this bill recapitulates four years of monies owed to the City. He said that if he traced the history of in-lieu parking fees to when they became developmental fees he would find something interesting. 5 City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 Regarding who pays in-lieu parking fees, Mr. Brief said 90% of those paying are restaurants. He felt he's probably the only single building that's being assessed in-lieu parking fees - as differentiated from developmental fees. . Mr. Brief said" ...1 want to tell you that the assessment of the in-lieu parking as it relates to me, and I'm not worried about what it relates to everybody else, was illegal. I've never signed an agreement. I do not intend to pay it. I don't believe I should pay it. And I don't believe to revoke my Variance is going to bring anything but a lot more problems for all of us. Which I don't really want and I would like to avoid. And since I have satisfied the 16 parking space requirement with actual parking spaces, I think I'm way ahead of the game. And one other thing that I want to say, it was a problem and Knight knew W. Regarding the use of in-lieu parking monies, Mr. Brief stated the in-lieu parking fee monies that were collected were not being spent for parking. Noting they may have been used to construct a median at College Park or Main Street improvements. Mr. Brief told the Commission "Don't revoke the Variance, it's not going to work, we're going to have lots of problems .,. ". Chairman Brown asked the Commissioners to hold any questions they might have and continue the Public Hearing. He asked for persons who wanted to speak against the Variance or in favor of the property owner to speak now. . Charles Antos * Seal Beach Mr. Antos said Resolution No. 3684 was adopted by the City Council on appeal. He read Condition #3: 3. The property owner shall agree to participate in such in-lieu parking program as has been or shall be established by the City Council for the amount equal to sixteen (17) (sic) spaces..." Mr. Antos said the City Council did not and has not established any in-lieu parking program pursuant to Assembly Bill (AB) 1600. He suggested condition #3 be referred back to the City Council because there has been no action in ten years. Additionally, there should be a request for the City Attorney's Office to research this issue relative to AB 1600 and report back to the City Council. Then if appropriate, the City Council could refer it to the Planning Commission for action. The City Council may choose to adopt an in-lieu parking program then deal with whatever happens at that time, keeping in mind there is no ex post facto law. Taking an action to revoke this Variance after ten years, in light of the fact that the property owner was never offered a participatory agreement, would be premature. . 6 . . . City of Seal Beach Planning Commission * Minutes of October 8. 1997 Sue Corbin * Seal Beach Ms. Corbin said St. Anne's Church is a non-profit institution for Internal Revenue Service (IRS) purposes. Under IRS rules and they cannot convert their property to a business usage under any condition. Research would show ten or twenty businesses on Main Street that trade with the Monsignor. Reva Olsen * Seal Beach Ms. Olsen said there is no in-lieu parking program; no ordinance. The fees were collected illegally and they may have to be returned. Prior Commissioner Sharp admitted it's illegal. She thought the in-lieu fees were being used on other than parking improvements and suggested they may be being used to improve Main Street. She said the City is spending too many taxpayer dollars on lawsuits that its lost. She has lots of documentation on in-lieu parking and if the Commission wants it she would be glad to provide it. The Chair did not close the Public Hearing and asked if the Commission had questions of Howard Brief? Commission Questions to Howard Brief Commissioner Larson asked Mr. Brief if he had complied with the other conditions in Resolution No. 3684? Mr. Brief said he didn't know. All he knew is that he got a building permit. Commissioner Yost indicated Mr. Brief had said he had disagreements with the City over certain issues. He asked him to elaborate on those issues. Mr. Brief explained the house had been designed with an atrium, allowing air circulation through the atrium to the bedrooms. To get the added space, he had to close the atrium. His contractor assured him windows could be cut in exterior walls. But, after the openings were cut, the City informed them you couldn't have windows on a zero lot line. The City made him eliminate the window openings and he thus had no air. There were other disagreements on aesthetics. Commissioner Yost asked how the issue over the windows was resolved? Mr. Brief said it was resolved by his agreeing to stop construction on the remodel of the house and turn it into an office building. Commissioner Law asked Mr. Brief if he was the only person who had permission or a lease to park in the Church's parking lot? Also, how many parking places are in that lot? 7 City of Seal Beach Planning Commission * Minutes of October 8, 1997 Mr. Brief said he is the only person having lease; he didn't know about the other . people. He thought there were over 100 parking spaces in the St. Anne's Church lot. He's never used all 16 of his. Chairman Brown said his reading of the record showed the Variance approved by the Planning Commission was appealed on the basis of the allowable increase in footage and not on the issue of parking. Mr. Brief said that was correct, he knew he had to supply 16 spaces off site. He needed 19 parking spaces under the first plan but 18 under the second plan. He has 2 parking spaces on site. Commissioner Brown noted Condition #3 says nothing about off-site parking. It says in-lieu parking program as has been or shall be established by the City. Supposing the fact that the in-lieu parking was non-existent or illegal, at the present time the City does have a legal in-lieu parking program. Mr. Brief said that nobody has come to him and said "Brief, let's start now. All these people are talking about going back ten years. I don't want to go back ten yearsD. Chairman Brown asked if he was saying that he was agreeing to start from the time that the in-lieu program was established? Mr. Brief said he wasn't saying he would agree to do anything. "I'm agreeing to talk" . . Chairman Brown noted that in the absence of a signed agreement, Mr. Brief has Resolution No. 3684, which gives him a Variance. That resolution contains Conditions of Approval for the Variance. One of those Conditions is that the property owner will participate in the in-lieu parking program. He asked" Are you saying, Mr. Brief, that the in-lieu parking program is non-existent or illegal then that condition is null and void?" Mr. Brief said "Absolutely. Just like any other condition would beD. Chairman Brown asked if that would abrogate the entire Variance? Mr. Brief said "No, all contracts have a little clause in them that says one void paragraph doesn't void the whole agreement. Let me put it this way to you, to answer your question, if in fact the City wanted me to sign something, if in fact the City had a program that they wanted me to participate in, why didn't they make me participate or have me do something other than pay more money to go to the Coastal Commission to get off-site parking?D . 8 . . . City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 Chairman Brown asked Mr. Brief if he was saying he had a gentleman's agreement or a side agreement with the City that he would be able to build his property as long as he provided the off site parking? Mr. Brief answered no, he had no agreement with the City other than when he returned from the Coastal Commission the City gave him the permit. Chairman Brown, saying he didn't want to put words in Mr. Briefs mouth or in the City's mouth, asked if by granting Mr. Brief a permit the City was implying their consent? Mr. Brief said, "Well, they gave me the permit. I assumed that's what that meant. I don't think anybody dropped the ball. I think they just didn't do it because they weren't doing it. Now, some people, after the fact, may have signed agreements to agree to operate with the City for whatever reasons - everybody's got some other reason of doing things around here - I don't question their reasoning. And I don't question anything they're doing with the City. That's up to them. That's an individual thing. And I don't question the developmental fees. I only question that when I came back from the Coastal Commission and gave them what I gave to the Coastal Commission to get that permit, I wasn't asked to do one more thing except pay $500+, get my permit and start working". Chairman Brown asked if that was the "Howard Brief in-lieu parking program?" Mr. Brief said liTo be honest with you, Knight (Ed Knight) liked the off-site parking better because there was no way to do anything with the money. And he wasn't collecting any anyway". Commissioner Law asked Mr. Brief if he would like to see a parking structure built in Seal Beach? Mr. Brief answered no, he didn't think the City needed one. He didn't think the City has a parking problem. Plus he didn't think the City had $2 million to buy the land and another $2 million to build the structure. Commissioner Yost asked Mr. Brief how many on-site parking places he had? And, was his agreement with the Catholic Church was for 11 spaces? Mr. Brief answered the Coastal Commission wanted the lease to say 11 spaces and that's what it says. Actually he has 16 spaces at the Church. Chairman Brown noted Ms. Corbin's comments were that Mr. Briefs off-site parking plan was illegal in terms of the church being unable to lease parking. Mr. Brief said the church's property is private property. He does not pay St. Anne's for the lease but instead donates money to have their parking lot 9 City of Seal Beach Planning Commission * Minutes of October 8. 1997 repaired. Whenever the Church wants the spaces striped or resurfaced he and two or three other property owners pay for that work to be done. . Chairman Brown restated his understanding of the situation. There's a Variance - which has an illegal condition - which negates the Variance. If it doesn't negate the Variance, there's no statement in Resolution No. 3684, which says that if any of these conditions is found to be illegal the rest is illegal. Mr. Brief said "The only one that's ever going to tell us that, if we go further, is the court ... I don't want to be involved in that. I know the City doesn't want to be involved in that..... No one has approached him with other options. .Well, so if that's the way you want to play I'll play. I'll play any way you want to play to get the thing resolved, except I am not going to back ten years and be bound by something that was illegal. And it's my opinion, however good or bad it is, that that one condition if it's invalid does not invalidate what the City did because they gave me the permit. I mean, how do you get around giving me a permit, inspecting the property at every stage, giving me a final, letting me operate with at least five businesses in the building for ten years and now come back and say well, wait a second, you didn't do one thing so we're going to revoke it". Chairman Brown said that the issue of building permits seems to come up with distressing irregularity around here - where building permits have been signed off when they shouldn't have been. He mentioned one case with incorrect property lines. . Commissioner Hood said he was somewhat disturbed by Mr. Briefs statement that he does not intend to pay. He explained we all come from different backgrounds and, when Mr. Brief, an attorney, says he does not intend to pay, it reads to him that he doesn't respect the law. There is an ordinance passed by the City of Seal Beach, signed by Council members who were elected by the citizens of Seal Beach and there's an agreement, supposedly, between Mr. Brief and the City. "What I hear you saying, is that you unilaterally, have no intention of adhering to what the ordinance holds you to". Continuing, he said the Variance is a beneficial use to Mr. Brief. The City has allowed him, to use the building at 222 Main Street in a certain way There were no questions other speakers and the Chairman closed the Public Hearing Commission Comments Commissioner Larson said he didn't find it contentious to say you won't pay money you don't think you legally owe. He began looking at this issue as a scofflaw case but now didn't think it is. If there's money owed a civil lawsuit should handle it. It may be going beyond the character of responsible government by threatening to stop the business that's been allowed to continue . 10 . . . City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 for ten years and has an approved building permit. UMy sympathies are with the property owner". The resolution approved by the City says that the staff has been applying the policy of parking on Main Street, which allows either on-site, off-site or by participation in an in-lieu parking program. The property owner provided off-site parking. ulf we have a lawsuit, we have a lawsuit but I don't think we should take an undue advantage by depriving the property owner of the use of his propertY'. Commissioner Hood had no further comments. Commissioner Yost said he was disturbed by the way Mr. Brief presented himself. His sympathies fell with the five business operators on Mr. Briefs property. He wanted to know more about the history of this issue prior to making a decision. He would like an opinion from the City Attorney regarding the legality of the in-lieu parking program and what steps have been made to collect the fees. He wanted to stay away from a lawsuit if at all possible. He wanted to breech a conciliatory tone in working' with Mr. Brief and would like to see this in return also from Mr. Brief. Commissioner Law said everybody has paid their in-lieu parking fees except Mr. Brief. The fees are to go for better parking. In some way he feels that he shouldn't participate. Commissioner Yost said he wanted more information from City staff and the City Attorney. Mr. Steele said he was prepared to speak. Commissioner Hood asked if staff was prepared to respond to the new documentation they were just given or whether they wanted another two weeks to respond to the allegations and the documentation? He would be willing to make a motion to delay for further consideration time. Mr. Steele said he had read the lease during the discussion and it provides for 11 spaces. Three times in the agreement it designates the specific 11 spaces. There's a diagram attached to the agreement. It provides that the lease is unon- exclusive" between the tenant and the landlord, which appears to be contrary to the terms of the Coastal Commission permit, which requires an uexclusive" lease for parking spaces. He didn't have page 3 of the Coastal permit. Mr. Brief did accurately describe the consideration involved. The lease provides that Mr. Brief will maintain the lot, fix the potholes when the Church asks him to do so. Not being a tax lawyer, he could not given an opinion on the IRS issue regarding the legality of a non-profit organization leasing spaces. He was not sure that was entirely relevant in this issue. The City has the requirement for 17 spaces and the lease provides for 11. 11 City of Seal Beach Planning Commission * Minutes of October 8, 1997 Chairman Brown asked Mr. Steele to elaborate on the Condition #3 issues. ,- Mr. Steele queried that on one hand, if the Condition is void, doesn't that make the Variance void? The answer could be yes. The Government Code allows cities to attach conditions to Variances to ensure the Variance is not a special privilege to the applicant. If Mr. Brief was not required to provide the in-lieu parking spaces that would mean this Variance was a special privilege and would be void. The issue is this is not a contract between two parties, this is a land use permit. It's a very special land use permit because it allows activity that is not strictly in compliance with the municipal code. If a permittee thinks a condition of a land use permit is invalid, the permittee has remedies. He/she can appeal the Planning Commission's decision, as Mr. Brief did. He didn't appeal it on the parking issue, he appealed it on another issue. If the permittee feels that a condition imposed at the final decision-making level is invalid the permittee can not accept the permit or the benefits of a permit. But the law is once a permittee accepts the benefits of a land use permit, and acts on that permit, puts it into action, the permittee has waived the right to contest the validity of any of the conditions. On the one hand we could say let's go back in time and decide that this condition is invalid - in that case the Variance is invalid and the City would have to revoke it anyway. On the other hand, we could say if Mr. Brief knew at the time (as he said everybody knew) that this in-lieu parking program was illegal, he had his option to contest that condition. But, once he accepted the benefits of the permit he then waived any right to contest the validity of the conditions. . . Chairman Brown took this a step forward, indicating Mr. Brief went to the Coastal Commission and returned with the "Howard Brief In-Lieu Parking Program". He said here's the in-lieu parking program. Building Department staff says okay and signs off on the permit. How does this relate? Did he do it? Mr. Steele said we don't know that he did do that, the information is not in the City's files. None of us was around so we don't know what was said at the time. At that point the most that happened is that the 17 -space requirement was reduced to 6. Because if this was the document presented when the building permit was issued, this document provides for 11 non-exclusive spaces. We would have to determine whether or not non-exclusive spaces was acceptable to the City. That's an open question. Commissioner Yost said that in the original document the parking space figure is written as 1116" but the typed figure says 1117" - which is the correct number? And why are the numbers different? Mr. Steele said the 1116" number is the number of parking spaces which would have been required if the staff recommendation had been approved. The "17" is what would have been required by the applicant's proposal and what was ultimately approved. The reason it's written wrong is literally because it was . 12 J. . . City of Seal Beach Planning Commission * Minutes of October 8, 1997 written wrong. But the requirement, under the approval, according to the staff report was 17. Chairman Brown read Condition #3 again, asking if "or shall be established" was in perpetuity? Mr. Steele said the permit runs with the land but certainly for the life of the permit. Plus the City did establish an in-lieu parking program, which has a specific reference in it to those permits that were in existence prior to the effective date. Those fees would continue and not be subject to the new, higher number. Chairman Brown asked if the applicants got credits for the previously paid fees? Mr. Steele said this is two different issues. The Development Agreement people got the aedits. Chairman Brown suggested the City might establish a new in lieu parking program and established the fee of $1 million per space. He asked if Mr. Brief would be obligated to pay the $1 million per space from today on? Mr. Steele said hypothetically yes. The term of the lease given to use tonight by Mr. Brief is only until such time as the City of Seal Beach creates new parking facilities that can be used by the owners of the property at 222 Main Street. The effect of this is that if someone were to create new parking spaces, without using Mr. Briefs money (because that amount hasn't been paid) this lease is over by its terms. Mr. Brief would be entitled to use those new parking spaces that are available for Main Street businesses but never have paid the fee. This church lease is over once the City develops new parking facilities. He saw this as a double benefit. Once the City builds new parking facilities without any monies being paid by the occupants of that building, this lease assumes those occupants will go use that facilities and not use the church's lot any more. Commissioner Hood asked how much were the in-lieu fees at the time of his initial agreement? Mr. Whittenberg said at the time of the approval of this project, the fees were $100 per space per year. He would want to recheck but thought the fees are now $3500 per space. Commissioner Hood suggested if the Planning Commission were to revoke this Variance that would be the end of things. If the Commission were to refer it, Mr. Brief would be subject to the higher fees at the date of affirmation. V\lhereas if he were to pay up now, then he could pay at the lower fee. Mr. Steele said if the Commission voted to revoke the Variance, the Variance would cease to exist. If Mr. Brief wanted a new Variance or some new permit for 13 City of Seal Beach Planning Commission * Minutes of October 8, 1997 construction or use on Main Street that involves in-lieu parking spaces the new l fee would apply to that use. He is specifically allowed to pay the lower fee . because it existed prior to effective date of the new fee. Chairman Brown said this is a complex issue which has been going on for ten years. He did not feel the Planning Commission needs to solve it tonight. With the consent of the Commission, he wanted to direct this back to staff to come back with a report on these issues, some alternatives, some solutions. He would really like to see City Staff and Mr. Brief to sit down and negotiate something that's fair to all concerned or that makes everybody happy so that the Commission does not need to revoke a Variance which will affect the businesses.' . Commissioner Yost said his sympathies were with the five innocent parties - the five businesses. He would not want to see their businesses disrupted due to the City's disagreement with Mr. Brief. He wanted to see this negotiated between City staff and Mr. Brief. In the next packet or before, he wanted to see more information, including the document~tion provided by Mr. Brief. Mr. Steele asked if there was anything else the Commission would like to see in its next packet? Chairman Brown said he would like to find the building inspector who signed off on that permit and interview him. . Mr. Whittenberg said he thought it would be best to talk to Ed Knight and find out what his thought process was at the time the permit was issued. He would have been the individual who was dealing with this project as it went through the Planning Commission and City Council. He would have supervised the Building Department also. Mr. Whittenberg suggested staff could come back on November 5th with a report to the Commission. Commissioner Yost requested a brief history on the in-lieu parking issue as part of the packet. Chairman Brown said that rather than doing that, the Commission could accept the fact that it may have been illegal and go from there. Mr. Steele said he did not want to accept the fact that it was illegal. We have given an opinion to the City Council on that issue. His office has researched this issue and he will provide a written report on'whatever materials are available. . 14 City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 '. MOTION by Hood; SECOND by Yost to continue the revocation of Variance 87-2 until the next regularly scheduled Planning Commission meeting on November 5, 1997. MOTION CARRIED: AYES: 5-0-0 Hood, Yost, law, larson, Brown RECESS: Chairman Brown called a recess at 9:00 p.m. The meeting reco~vened at 9:05 p.m. Scheduled Matters 6. Planning Commission Determination of Zoning [Continued from September 17, 1997] Tattoo Parlor Staff Report Mr. Curtis presented the staff report. [Staff report on file in the Planning Department for inspection). Mr. Curtis indicated the City received one letter in opposition to tattoo parlors from Curt and Ruth Whallon of Seal Beach. . Commission Questions on Staff Report Chairman Brown requested clarification on whether staff was recommending both a Conditional Use Permit (CUP) and conditions set forth in the municipal Code? Mr. Steele said he felt it would be best to have the standard operating conditions in the Code because every potential operator would be on notice to what the City's requirements are. Or, the Commission could determine they be made conditions of every permit but that wouldn't give potential operators knowledge of what is required. A CUP gives the City the additional level of enforcement. Chairman Brown asked about the other cities surveyed, noting some cities do not mention tattoo parlors in their municipal codes. Mr. Curtis explained that by not mentioning a use in the municipal code, it disallows that use until it is mentioned. Public Hearina Charles Antos * Seal Beach Mr. Antos spoke strongly against tattoo parlors, saying that if the Planning Commission is going to allow this type use it should be through a CUP so that everybody within 300' gets a notice that it's coming in. There should be a policy . that requires it be 300' minimum from churches, schools and residences. That 15 . City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 would relegate tattoo parlors to shopping centers. He wondered why the City was considering a determination on zoning for this sort of use, then cited several .' other poor choice uses being presented to the City. He said it is possible to disallow a use in the City and going on to mention a few disallowed uses and a discussion on development standards. He urged the Commission to not allow tattoo parlors. -If people want a location, let them go somewhere where the clientele is ... about the only thing you haven't invited in is a biker bar-. Virainia Gardner and Gilbert Torres · Paramount. CA Ms. Gardner said she did receive the letter from the Whallon's and she wrote a letter in response. She read her letter to Mayor Hastings into the Record [attached]. Commission~r law asked if her hours are11: 00 a.m. to 9:00 p.m. when the doors shut at 9:00 p.m. will the customers be done or would she continue until the job was done? Ms. Gardner said if she, or another artist, was tattooing someone, they would finish that tattoo, the doors would be closed to new customers. They would try to schedule their work to close at 9:00 p.m. They would not take a four-hour tattoo job at 9:00 p.m., making them open until 1 :00 a.m. There were no other speakers and the Chairman closed the Public Hearing. Commission Comments . Commissioner law said she was against tattoo parlors. She explained her feeling that tattoo parlors are an adult business and she put them in the category of massage parlors, X-rated movie theatres and strip shows. Taxpayers are spending hundreds of thousands of dollars to have tattoos taken off prisoners so they don't come out of prison as freaks and they can get a job. She did not begrudge the money being spent for the tattoo removal but why create more? Commissioner Yost said this is a First Amendment issue as explained by the Assistant City Attorney. If it's to be zoned, it should be zoned C-2 and should have a CUP. Commissioner Hood agreed this might be a First Amendment issue and felt if there is a market for it people will come. He didn't think the Planning Commission necessarily had a right to restrict it. Commissioner larson said the Planning Commission should follow the City Attorney's advice, that it would be very costly to have a hearing and the reports to show that the City could completely outlaw tattoo parlors. It seemed the staff's recommendations were right. . 16 . . . City of Seal Beach Planning Commission * Minutes of Odober 8, 1997 Chairman Brown said tattoo parlors have a stigma, but times and people change. Our perceptions of things may not change along with the times. He noted many of his patients have tattoos and they are fine, reputable people. While he did not personally like tattoos, it was anyone's right to get them. When the Commission looks at businesses, it looks at how they are going to affect the City as a whole and contemplates how they are going to affect property values. While Virginia Gardner's letter was a nice letter, the fact remains that once the Commission grants a CUP, it cannot control who owns the business. Noting that times do change, he agreed with staffs recommendation to allow tattoo parlors in the C-2 zone with a CUP. MOTION by Hood; SECOND by Larson to have staff bring back a resolution at the next meeting for Commission consideration setting forth the proposed zoning designation, the CUP and standard conditions for tattoo parlors. MOTION CARRIED: AYES: NOES: 4-1-0 Hood, Larson, Yost, Brown Law 5. Presentation by Mark Brodeur of Urban Design Studio "Livable Communities". Mr. Brodeur gave a power point presentation on livable communities and what changes need to be made to achieve them. This gave the Commission ideas on how to deal with certain planning issues as t~ey came before them. Staff Concerns Plannina Commission's October 22. 1997 Meetina Mr. Whittenberg indicated there are no agenda items for the October 22, 1997 Planning Commission meeting. The Commission determined to cancel that meeting and adjourn to the November 5th meeting. Commission Concerns Bixbv EIR Commissioner Law asked if the Notice of Preparation (NOP) would come before the Planning Commission? Mr. Whittenberg said the Commission would see the NOP once an EIR has been prepared and has been reviewed by the EQCB. His guess was the Commission would see it sometime in early 1998. Commissioner Law said she felt many issues have already been decided. 17 "\ City of Seal Beach Planning Commission * Minutes of October 8, 1997 Mr. Whittenberg explained an application has been submitted by the Bixby Co. to . develop portions of its property. That application has to go through an EIR preparation process. It must be completed and reviewed before it can come to the Planning Commission for consideration on the land use changes requested by the Bixby Co. In early 1998, the Commission will make a recommendation to the City Council on whether or not the requested zoning changes and General Plan designations should be considered for approval or not. Commissioner Law noted that originally the Marriott Senior Living facility was located on the tennis courts, now it's not there. She understood that Bixby Co. has decided to give the tennis courts to the City and the City agreed. Mr. Whittenberg said changes have been proposed and they will come before the Commission. He said the City has not a.ccepted anything that is up to the City Council. The Bixby Co. has proposed turning the tennis court facility over to the City for its use as a recreation facility - as a part of the project. The Bixby Co. as a part of their earlier application also put that suggestion forth. The major difference between this project and what was proposed before is the previous project was primarily a residential project and this project is commercially oriented. Chairman Brown said the process moves too quickly to obtain quality public input. It seems the Planning Commission is presented with a Draft EIR and then an EIR. By that time, it's gone way too far for public input. The EIR has already been done, consultants have been working. Even though it's said the community will have input, what the community really has input into is whether or not the EIR was adequate and minor concerns. There should be a public workshop with a project of this magnitude before anything is put to paper. . Mr. Whittenberg said he understood the Commission's concern. This is another example of having standards already in place.before an application is submitted. State law requires the City to act on an application within certain time periods. If it doesn't the application is automatically approved. The Planning Commission and the City Council are the only bodies in the City that can propose and ultimately approve changes to a plan an applicant has submitted. Bixby has proposed a change in land uses and they have submitted a conceptual site plan. The plan submitted is not in concrete. They have shown buildings in certain locations and of certain sizes - which may not be what is ultimately built if the project is approved. The Commission will consider changes to zoning classifications for certain types of land uses. It will be land use considerations via the General Plan versus a~tual buildings on specific sites. The municipal Code 'already designates parking requirements, signage requirement et cetera. Commissioner Larson asked if there would be 'a Development Agreement? And would that supercede the municipal Code's zoning laws? . 18 . ~ . . . City of Seal Beach Planning Commission * Minutes of October 8, 1997 Mr. Whittenberg said there would be a Development Agreement and it would depend on how it's constructed as to whether it superceded the Code. On the Hellman Ranch project the Development Agreement does not supercede zoning requirements. Chairman Brown said when he was out on the greenbelt this weekend he heard dissatisfaction with a City Memorandum of Understanding being signed with the Bixby Co. before there was any public input. He said the public's input to actually change things is very limited. This occurred on the Hellman Ranch proposal and the prior Bixby proposal. It's very difficult to change things once they're faced with a huge EIR and consultant studies done. It would be better to have community consensus of what people would like right up front. Mr. Whittenberg said he understood the concern. From Bixby Ranch Company's standpoint they went through that type of a process with the earlier residential project. They spent a number of months in community meetings before they even submitted an application to the City - to try to get a feel for what the community wanted. They ultimately decided to withdraw that project. At that point they told staff they were no longer interested in participating in that type of a process again. They would simply submit an application to the City. They have the right to do this. Commissioner Larson expressed his concern with an application from Bixby Co. being before the City and yet uFor Sale" signs are posted on the property. Mr. Whittenberg said the Planning Commission would have to consider this situation when looking at changing zoning designations on acres of property. The property rights run with the land, not with the property owner. Sandbaaaina Durina Floodina Chairman Brown commented that contrary to Howard Briefs statement, he was down on Seal Way sandbagging. He lives there. He publicly thanked people for coming down and helping. There has been criticism of the City along the lines of why didn't they know and why didn't they prepare? The night before he looked at the storm tracks and forecasts and didn't see anything. The City and County did a tremendous job of mobilization. The Public Works Department did an outstanding job of helping with his house and with all the properties along Seal Way. There was a tremendous volunteer community effort. This was a true statement of why Seal Beach is a desirable place to live - where the whole community comes together and pulls together in times of need. Adiournment Chairman Brown adjourned the meeting to November 5,1997. The meeting of October 22, ~ 997 is canceled due to lack of agenda items. 19 City of Seal Beach Planning Commission * Minutes of October 8, 1997 ., Respectfully Submitted, . (\ --:----- '-10 c:::.--. ) Joan Fillmann Executive Secretary Planning Department APPROVAL: The Planning Commission Minutes of October 8m 1997 w~ approved by the Planning Commission on November ~1997. ~ . . 20