HomeMy WebLinkAboutCC AG PKT 2009-09-14 #XAGEiV®,i4 ST~4FF REP®RT
DATE: ~ ~n~ ~c+ i n~ manna September 14, 2009
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Lee Whittenberg, Director of Development Services
Quinn Barrow, City Attorney
SUBJECT: MAIN STREET SPECIFIC PL~-IV ®ISCUSSIOIV
SUMMARY OF REQUEST:
After consideration of the City Council, instruct staff to proceed with any actions
determined appropriate. Staff identified options include:
^ Authorize staff to initiate preparation of a proposed amendment to the Main
Street Specific Plan and a conforming Zone Text Amendment to establish a
maximum number of alcohol sales licenses, both on-premise and off-premise
sales, to be approved by Conditional Use Permit within the Main Street
Specific Plan Zone as discussed;
^ Instruct the City Attorney to return with a proposed interim ordinance amending
the Main Street Specific Plan to add additional regulations (e.g., 5-year term)
for any new Conditional Use Permit's regarding alcohol sales; the Council could
adopt such a requirement by interim ordinance upon afour-fifths super majority
vote of the City Council;
^ Direct the Planning Commission to review Chapter 28, Zoning, Article 28,
Revocation; Expiration;
^ Provide additional direction to staff and City Attorney based on Council
discussion; or
^ Receive and File this Staff report.
BACKGROUIV®:
At the July 13, 2009 City Council meeting the issue of the interim regulations
regarding the number of alcohol Conditional Use Permits ("CUP's") along Main
Street and the ability to impose a "term" to the approval of a CUP was discussed.
The City Council referred the matter to the Planning Commission to study/review
and make recommendations for any proposed changes to the Main Street Specific
Agenda Item X
Page 2
Plan -including providing numerical targets for mix of uses and a 5-year sunset
clause for any new CUP's regarding alcohol sales.
The City Attorney then clarified that pending the study/review by the Planning
Commission staff would look into whether the Council can impose interim
regulations on uses proposing to sell alcohol (such as a 5-year term) and return
with options for City Council consideration.
Previous Moratoriums/Interim Ordinances re: Granting of Conditional Use
Permits for On-Site and Off-Site Liquor Establishments:
On February 10, 1986 the City Council adopted Ordinance No. 1214, An
Ordinance of the City of Seal Beach Establishing a Moratorium on the
Granting of Conditional Use Permits for On-Site and Off-Site Liquor
Establishments and Declaring the Urgency Thereof. This ordinance, as an
interim ordinance in accordance with the provisions of the California
Government Code § 65858, was effective fora 45-day time period, unless
extended.
On April 14, 1986 the City Council adopted Ordinance No. 1222, An
Ordinance of the City of Seal Beach Extending the Moratorium on the
Granting of Conditional Use Permits for On-Site and Off-Site Liquor
Establishments and Declaring the Urgency Thereof. This ordinance, as an
interim ordinance in accordance with the provisions of the California
Government Code, was effective fora 120-day time period, after the
expiration of Ordinance No. 1214.
On June 9, 1986 the City Council adopted Ordinance No. 12242, An
Ordinance of the City of Seal Beach Repealing the Moratorium on Conditional
Use Permits for Liquor Establishments and Declaring the Urgency Thereof.
Upon adoption of this ordinance the moratorium was repealed immediately.
California Government Code § 65858 Provisions:
Government Code § 65858(f) states:
"(f) Notwithstanding subdivision (e), upon termination of a prior
interim ordinance, the legislative body may adopt another interim
ordinance pursuant to this section provided that the new interim
ordinance is adopted to protect the public safety, health, and
welfare from an event, occurrence, or set of circumstances different
from the event, occurrence, or set of circumstances that led to the
adoption of the prior interim ordinance."
Page 3
Possible City Council Actions Re: Limiting the Number of On-Site and Off-
Site Liquor Establishments within the Main Street Specific Plan Zone:
The City Council may want to instruct Staff to initiate the standard zone text
amendment process to establish a numerical limitation on the number of on-
site and off-site liquor establishments through the regular adoption process of
an ordinance. Since such a change would require amendments to the Main
Street Specific Plan and the Zoning Code, staff would request the following
direction from the City Council:
^ Authorize staff to initiate preparation of a proposed amendment, to the
Main Street Specific Plan and a conforming Zone Text Amendment to
establish a maximum number of alcohol sales licenses, both on-premise
. and off-premise sales, to be approved by Conditional Use Permit within
the Main Street Specific Plan Zone;
^ Request the Planning Commission to conduct community meetings with
interested parties regarding the proposed establishment of a maximum
number of alcohol sales licenses;
^ After the conclusion of the community meeting process, staff will schedule
the required public hearings by the Planning Commission to consider a
proposed maximum number of alcohol sales licenses, both on-premise
and off-premise sales, to be approved by Conditional Use Permit within
the Main Street Specific Plan Zone. After the Planning Commission
makes a recommendation, staff will schedule the necessary public hearing
before the Council.
Such a process would take several months to complete, as it is uncertain as
to the time necessary for conducting the suggested community meetings,
preparation of alternative numerical or location controls, preparation of draft
amendment language to the Main Street Specific Plan and to the Zoning
Code, preparation of necessary environmental review documentation, and the
required public hearings by both Planning Commission and City Council, and
then ordinance introduction and adoption.
Consideration of 5-Year Term Condition for Any New CUP's Regarding
Alcohol Sales:
As indicated above, the City Council also referred to the Planning Commission
the Main Street Specific Plan to study/review and make recommendations for
any proposed changes; including a 5-year term for any new CUP's regarding
alcohol sales. The Council could adopt such a requirement by interim
ordinance upon afour-fifths super majority vote of the City Council.
During the City Council discussion on this issue on July 13 members of the
Council indicated such a review process should only occur for "cause." Staff
believes that those comments should be correctly interpreted to mean that a
Page 4
consideration would only occur if the conditions of the effective CUP were not
being complied with or if the operation of the business was such as to create a
public nuisance or general public safety concerns. If that understanding of the
Council comments is correct, staff is uncertain as to the necessity of
establishing such a condition, as discussed further below.
Current CUP Condition of Approval Requirements re: Ensuring
Neighborhood Compatibility:
The basic purpose of the CUP review, approval, and imposition of conditions
process is to allow the interested public, the Planning Commission, and when
a matter is appealed to the City Council, to be in a position to ensure that
such approved uses can operate in a functional and effective manner without
adversely impacting adjoining properties and the surrounding community.
When the City approves a CUP, there are specific conditions imposed
regarding the specific use at the specific project location to ensure
compatibility with surrounding properties. In addition, the City imposes
several "standard conditions" on all approved CUP's. Among those "standard
conditions" are the following:
^ In the event staff determines security problems exist on the site, the
conditions of this permit may be amended, under the procedures of the
Seal Beach Municipal Code, to require the provision of additional security
measures;
^ The establishment shall comply with Chapter 7.15, "Noise" of the Seal
Beach Municipal Code, as the regulations of that Chapter now exist or
may hereafter be amended. Should complaints be received regarding
noise generated by the establishment, the Planning Commission reserves
the right to schedule this permit for reconsideration and may require the
applicant/business operator to mitigate the noise level to comply with the
provisions of Chapter 7.15;
^ A modification of this Conditional Use Permit shall be applied for when:
a. The establishment proposes to change its type of liquor license.
b. The establishment proposes to modify any of its current Conditions
of Approval.
c. There is a substantial change in the mode or character of
operations of the establishment;
^ The Planning Commission reserves the right to revoke or modify this
Conditional Use Permit pursuant to Articles 25 and 28 of Seal Beach
Municipal Code if harm or retail-related problems are demonstrated to
occur as a result of criminal or anti-social behavior, including but not
limited to the congregation of minors, violence, public drunkenness,
vandalism, solicitation and/or litter; and
Page 5
^ The applicant shall indemnify, defend and hold harmless City, its officers,
agents and employees (collectively "the City" hereinafter) from any and all
claims and losses whatsoever occurring or resulting to any and all
persons, firms, or corporations furnishing or supplying work, services,
materials, or supplies in connection with the performance of the use
permitted hereby or the exercise of the rights granted herein, and any and
all claims, lawsuits or actions arising from the granting of or the exercise of
the rights permitted by this Conditional Use Permit, and from any and all
claims and losses occurring or resulting~to any person, firm, corporation or
property for damage, injury or death arising out of or connected with the
performance of the use permitted hereby. Applicant's obligation to
indemnify, defend and hold harmless the City as stated herein shall
include, but not be limited to, paying all fees and costs incurred by legal
counsel of the City's choice in representing the City in connection with any
such claims, losses, lawsuits or actions, expert witness fees, and any
award of damages, judgments, verdicts, court costs or attorneys' fees in
any such lawsuit or action.
In the opinion of staff and the City Attorney, the imposition of the above
"standard conditions" on all approved CUP's provide the City with all of the
necessary tools to consider "for cause" consideration of modifications of
conditions and/or revocation of a CUP when the conditionally permitted land
use is not operating in accordance with approved conditions, applicable
provisions of the Seal Beach Municipal Code, or in such a manner as to as to
create a public nuisance or general public safety concerns.
As indicated in the July 13 City Council Staff Report:
"An important issue to remember is the permanence of the
decision, because Conditional Use Permits are tied to the property
address and "run with the land." Conditional Use Permits can be
revoked if the operator fails to comply with conditions of approval,
or if the business has "ceased to exist or been suspended for more
than one year." But the burden of proof showing violation of
conditions or lapse of use falls upon the City, and revoking the
property right granted by a CUP is an arduous and expensive
undertaking for the City. Some cities issue limited duration CUPs
which have a "sunset clause" under which the CUP expires after a
certain period of time. If so directed, staff and the City Attorney can
explore this option."
Revocation Process for Variance. Conditional Use Permits and Unclassified
Use Permits•
Seal Beach Municipal Code, Chapter 28, Zoning, Article 28, Revocation;
Expiration, sets forth the process the City is required to undertake to consider
a revocation of an approved variance, CUP or unclassified CUP. The process
Page 6
requires scheduling a public hearing before the Planning Commission to
consider the revocation and the Commission is authorized to revoke an
approved land use entitlement on one or more of the following grounds:
^ That the use for which such approval was granted has ceased to exist or
has been suspended for one year or more;
^ That the use for which such approval is granted is not being exercised;
^ That the permit or variance granted is being or recently has been
exercised contrary to the terms or conditions of such approval or in
violation of any statute, ordinance, law or regulation:
^ That the use for which the approval was granted was so exercised as to
be detrimental to the public health, safety or welfare or so as to constitute
a nuisance;
^ That the permit or use granted was obtained by fraud or deceit.
If the City Council were to amend the Zoning Code to establish a "life term", a
public hearing before the Planning Commission would be required to re-
authorize the particular land use entitlement. The public hearing
consideration process is identical. Staff time would be allocated to analyze,
determine appropriate conditions, and prepare supporting "findings" to
support the determination of the Planning Commission in either type of land
use entitlement review. It is not possible to provide estimates as to the
amount of Staff time that would be necessary in either type of review, but it
would be anticipated that the allocation of staff time would not be significantly
different under either public review process.
Expiration Of Use:
As noted above, Seal Beach Municipal Code, Chapter 28, Zoning, Article 28,
Revocation; Expiration, sets forth a process to revoke a CUP if the use for
which such approval was granted has ceased to exist or has been suspended
for one year or more. The Council may wish to provide direction to the
Planning Commission as to whether such provision should be reviewed. For
instance, the City may want to reduce the 1-year to a smaller period of time.
FIIVAIVCIAL IMPACT:
There is no direct fiscal impact to the City.
I~ECOMIViEIV®ATION:
After consideration of the City Council, instruct staff to proceed with any actions
determined appropriate. Staff identified options include:
Page 7
^ Authorize staff to initiate preparation of a proposed amendment to the Main
Street Specific Plan and a conforming Zone Text Amendment to establish a
maximum number of alcohol sales licenses, both on-premise and off-premise
sales, to be approved by Conditional Use Permit within the Main Street
Specific Plan Zone as discussed;
^ Instruct the City Attorney to return with a proposed interim ordinance amending
the Main Street Specific Plan to add additional regulations (e.g., 5-year term)
for any new Conditional Use Permit's regarding alcohol sales; the Council could
adopt such a requirement by interim ordinance upon afour-fifths super majority
vote of the City Council;
^ Direct the Planning Commission to review Chapter 28, Zoning, Article 28,
Revocation; Expiration;
^ Provide additional direction to staff and City Attorney based on Council
discussion; or
^ Receive and File this Staff report.
SUBMITTED BY: NOTED AND APPROVED:
~ ~~
e Whittenberg, David Carman ,City Manager
Director of Development Se ces