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Home My WebLink About04-16-1993 CITY COUNCIL AGENDAb1 �° %7k$;WY1`7 -2301 13777 FRUITVALE AVENUE - SARATOGA, CALIFORNIA 95070 - (408) 867 -3438 M E M O R A N D U M TO: Saratoga City Council FROM: Paul L. Curtis, Planning Director DATE_:_.._ April _16, 199.3_ COUNCIL ME51BERS: Karen Anderson Ann Marie Burger bVillem Kohler Victor Monia Karen Tucker Agenda Item City Manager SUBJECT: Appeal of Denial of ten -year extension of use for existing gasoline service station (ARCO) pursuant to Resolution UP -550.1 conditions of approval on a parcel of approximately .23,715 sq. ft. at 12600 Saratoga Avenue in the RM -5,000 PC zone district. (Appellant /Applicant E. Kaabipour. Continued from March? 17, 1993) RECOMMENDATION options A. Conduct a public hearing to determine whether there exists any public nuisance and, if so, whether additional conditions can be placed on the project to abate the nuisance. B. If no such nuisance is determined to exist, the determination - should be to allow the activity to continue subject to conditions of approval. C. Refer the application back to the Planning Commission. to conduct additional public hearings as outlined in A and B above. BACKGROUND This application was continued from the March 17th City Council meeting to allow discussion at the April 13th joint work session of the Planning Commission and City Council, regarding non - conforming uses and their continuation /termination, and the conditional use permit process. This appeal was filed following a decision by the Planning Commission on February 10, 1993, which granted a one -year "extension" of the gas station use, finding that there were no significant violations of conditions of the previously approved Conditional Use Permit. Taking action on the annual review, the Commission determined that a ten year request by the potential Printed on recycled paper. operator, Mr. Kaabipour, was premature and preferred to wait until January 1994 to consider the longer "extension" period. There was little consideration of Mr. Kaabipour_'s.specific request. The history surrounding the gasoline service station use is complicated and leads to a series of questions. What happened in 1983 -84? The gasoline service station became a non - conforming use following a zone change- from commercial to multiple - family residential (in 1983). A non- conforming use is a use that legally existed prior to a specific government action (i.e. the zone change) , but no longer is a use permitted as a right. • A Conditional Use Permit was granted on January 25, 1984, allowing the gas_ service.. station_ _to_ continue to operate subject to a set of conditions of approval. • The effect of the approval of the Conditional Use Permit was to remove the station from its non - conforming status (i.e. not permitted as a right) to a permitted use subject to the use permit and applied conditions (per Section 15- 65.140 of the Zoning Ordinance).. • Per the City Attorney's memo distributed at the April 13th work session, the Conditional Use Permit constitutes the granting of a vested right to continue as long as the operation of the use complies with conditions of approval and unless it is deemed to constitute a public nuisance. • The effect of the 1110- year" condition approved by the Commission was to establish an automatic review, not an expiration date, for the use. At the end of the 10 -year period, the Commission would "automatically" review the use to determine if conditions are being complied with and if the:use. has become a public nuisance. What happened in 1991? • The gas station changed from GASCO to ARCO requiring design review of new signs. • Per Section 15- 55.100, the Planning Commission exercised its authority to review the Conditional Use Permit to determine if the 1984 conditions of approval were being complied with. The Commission retains jurisdiction over Use Permits and did not need to wait for the automatic review date (i.e. January 25, 1994, per the 10 -year date established in 1984) to condition this review. • On December 11, 1991, the Commission allowed the station to continue with conditions that reiterated and clarified the January 1984 approval. In addition, a condition was added that required an annual review (automatic) to evaluate compliance with conditions. What happened in 1993? • On February 10, 1993, the Planning Commission conducted the annual review required by the December 1991 condition. • Mr. Kaabipour, a potential buyer /operator of the service station requested that a new 10 -year period be considered. He wanted to know if the use would be allowed to continue; that is, would the Planning Commission find that there was a public. nuisance justifying discontinuance of the use (Sec. 15- 65.140); and if any new conditions would be required, responding to complaints, etc. While a new 10 -year period would not "guarantee" 10 years of operation (the permit can be reviewed at any time regarding compliance with conditions), the new owner would have a better understanding of the long- term requirements in the operation of the station. • The Commission felt that the annual review process should be completed, and then an in -depth analysis would be completed in January.1994. • Mr. Kaabipour appealed the Planning Commission decision to authorize the use permit for another year instead of a 10 -year period. What options are available to the City Council? • The City, whether it be the Planning Commission or the City Council, can take either of the following actions: 1. Allow the use to continue by applying conditions of approval (previously approved conditions and additional conditions, if necessary) which are required to preserve the public health, safety and welfare and. to prevent a public nuisance; or 2. Find that the operation of the gasoline service station is a public nuisance and require it to cease operations, additionally finding that there are no conditions of approval which could reasonably be imposed which would abate.the public nuisance. • Because a Conditional Use Permit was granted, thereby "vesting" the right of use, the City cannot automatically close the gasoline service station unless 'it. finds the operation of the station constitutes a public nuisance. PLC:cw Attachments: Planning Commission Minutes of January 25, 1984 Sample Resolution listing possible conditions Letter from Mr. Bruce A. Rischel Planning Commission Meeting Minutes 1/25/84 A -929 and SDR -1558 (cont.) Page 2 Commissioner Siegfried moved to close the public hearing. Commissioner Hlava seconded the motion, which was carried unanimously. Commissioner Hlava moved to approve SDR -1558, per the Staff Report dated January 16, 1984 and Exhibit "B ", and A -929, per the Staff Report dated January 16, 1984 and Exhibits "B ", "C" and "D ". Commissioner Siegfried seconded the motion, which was carried unanimously 6 -0.. 3a. Negative Declaration - SDR -1549 - Horvath 3b. SDR -1549 - Frank and Dagmar Horvath, Request for Tentative Building Site Approval to create two (2) lots at 22122 Mt. Eden Road in the NHR Zoning District It was directed that this matter be continued to the meeting of February 8, 1984. 4a. Negative Declaration - UP -550 - Desert - Petroleum 4b. UP -550 - Desert Petroleum,. Request for Use Permit Approval to allow an existing gasoline service station to continue as a non- conform- ing commercial use in an R =M -5000 PC (residential) zoning dis- trict, at 12600 Saratoga Avenue (corner of Bucknall) Staff explained the use permit, including the modifications to the exterior of the service station and the landscaping plan. They indicated that they feel the changes substantially improve the appearance of the service station. They commented that they have tentatively conditioned the use permit for a 10 -year period, at which time the Planning Commission can consider an extension, and have also conditioned it for a 5 -year review. They noted that they have also included conditions for the hours of operation, the movement of the Bucknall Road entrance so that it is SO ft. from the curb line, and sidewalk along the perimeter of the property. The City Attorney commented that he would not envision anything in the forth- coming revised Nonconforming Ordinance as being inconsistent with what the Commission is doing at this time with regard to the conditions that the Staff has recommended. Discussion followed on the proposed move of the Bucknall Road entrance as it relates to landscaping. Commissioner Harris referenced the letter from Mr. and Mrs. Stillman. The public hearing- was opened at 8:08 p.m. Dan Carobini, attorney representing the applicant, addressed the proposal. He requested further consideration regarding the hours of operation, indicat- ing that one of their most productive times is 9:00 - 11:00 p.m. He asked that the station be allowed to remain open at least until 10:00 p.m. Rick Norman, the designer, explained the proposal for the corner planter. He stated that there is no problem with removing the light standard at the corner. He requested that consideration be given to low level lighting that would light the price sign. He also asked that the Commission give further °consideration to the requirement for the sidewalk, since it would be torn out at the end of the 10 years. Staff noted that other projects in the area had been conditioned for sidewalks. They commented that if the use is changed the sidewalk could be used for residential or any subsequent use on this site. Commissioner McGoldrick moved to close the public hearing. Commissioner Hlava seconded the motion, which was carried unanimously. Further discussion followed on the landscaping, with a possible bonding to guarantee that it be installed within 90 days. The City Attorney commented that the Commission has the option of having a bond for the landscaping or they could revoke the use permit, which would leave them with a nonconform- ing use. He stated, however, that they would be subject to amortization provisions under the existing ordinance, and he has had discussions with other counsel for the applicant on the interpretation of that ordinance and thinks that the point of interpretation is that their amortization period may have run. Therefore, obviously it is in the applicants' best interest to have the use permit to ensure the use. He added that, while it has been suggested that they have the use permit for a 10 -year period, that by no Planning Commission Page 3 Meeting Minutes 1/25/84 UP -550 (cont.) means should imply that it simply expires. He stated that, while it would be appropriate for the applicant to calculate their amortization based upon 10 years, he would not want them to have the impression that that would simply be the end of the use; they would have the right to come back to the Commission and request a renewal. The'City Attorney also suggested that the following be added to Condition #7, "and in compliance with the City of Saratoga's Hazardous Materials Storage Ordinance." It was also determined that a condition should be added regarding the Stillmans' letter, to read: "The station shall be kept in good repair and free of dilapidated autos or other eyesores." Commis - sioner Crowther asked if the school in the area was still operating. It was clarified that it was as a daycare center, and Commissioner Crowther commented that he felt that that was a key issue relative to the sidewalk; if there are kids around there the condition should remain. Commissioner McGoldrick noted a phone call from Mrs. Schnedler, a neighbor, in opposition to the 9:00 closing time; she would like it to be 8:00 p.m. Discussion followed on the hours of operation for the station and those of other.service.stations in the area. Commissioner McGoldrick then suggested that the telephone booth be placed in the Saratoga Avenue - Teresi corner, rather than on the Bucknall side of the station. It was also noted that the are two existing yard lights on the site. Mr. Norman addressed the lighting, stating that the purpose of the remaining light is to light the entrance driveway on Saratoga Avenue. He also stated that if the phone booth is relocated there will be a problem with the cir- culation. Discussion followed on the location of it, and it was the con- sensus-to have Staff work with the applicant to determine where it should be located. Commissioner Crowther moved to approve the Negative Declaration for UP -550. Commissioner Siegfried seconded the motion, which was carried unanimously 7 -0. Commissioner Crowther moved to approve UP -550, per the Staff Report dated January 18, 1984 and Exhibits "B ", "C" and "D ", with the following changes to the Staff Report: Condition #4 shall read: "The service station shall be open only.between the hours of 6:00 a.m. to 9:00 p.m. from Monday through Thursday, 6:00 a.m. to 10:00 p.m. on Friday, 7:00 a.m. to 10:00 p.m. on Saturday, and from 7:00 a.m. to 9 :00 p.m. on Sunday:" Condition #7 shall read:' "All gasoline pumps and storage tanks shall comply with the regula- tions of the San Francisco Bay Area Pollution Control District and with the City of Saratoga's Hazardous.Materials Storage Ordinance." Condition #8 shall read: "Any office exterior lighting visible from outside of the struc- ture shall be turned off at the time of closing specified in Condition #4. The existing yard light at the corner of Saratoga Avenue and Bucknall Road shall be removed and replaced with low level lighting." Condition #13 shall be added to read: "The station shall be kept in good repair and free of dilapidated autos or other eyesores." Commissioner McGoldrick seconded the motion, which was carried unanimously 7 -0. Direction was given to the applicant regarding the sign. There was a con - sensus that it should be a maximum of 4 feet and as aesthetically pleasing as possible. The majority of the Commission favored the plan with the trellis The applicant was requested to come back with a plan for consideration. 5. UP -551 - Brian Moran, Request for Use Permit Approval to construct an accessory structure in the rear yard setback area at 18580 McFarland Avenue, in an R-1-10,000-zoning district Staff described the proposal. Commissioner Hlava gave a Land Use Committee report, stating that there is no immediate neighbor on one side.. She commented that in the back there are large trees and trees along the back fencing. She noted that the Staff Report is recommending moving a turn- around into the area that is generally labeled lawn. However, that is not really a lawn and the turnaround where recommended would move into the appli- cant's only small area of lawn. She indicated that they had discussed the idea of perhaps extending the cement toward the fence and having a small planter along the fence. She explained that this would result in a 6 ft. setback, as opposed to 10 ft.; however, she does not feel that would be a problem. RESOLUTION NO. UP -550.3 A RESOLUTION OF THE SARATOGA,PLANNING COMMISSION /CITY COUNCIL CITY OF SARATOGA, APPROVING USE PERMIT Desert Petroleum; 12600 Saratoga Avenue. WHEREAS, the City of Saratoga Planning Commission /City Council has received an application to extend the use of an existing gasoline service station (ARCO) for a period of ten (10) years, per Chapter 15 of the City Code; and WHEREAS, the Planning Commission /City Council has conducted a duly noticed public hearing at which time all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS., the Planning Commission /City Council determined_ that the gasoline service station use should be continued; and WHEREAS, the Planning Commission /City Council finds: a. That the proposed gasoline service station use permit is in accord with the objectives of the Zoning Ordinance and the purposes of the district in which the site is located in that the service station has existed for over 40 years; is located. on a major arterial (Saratoga Avenue); and is bordered on two sides by multiple - family residential uses. b. That the proposed gasoline service station use permit and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety or welfare, nor materially injurious to properties or improve- ments in the vicinity in that appropriate conditions have been placed on the project to minimize potential impacts. c. That the proposed gasoline service station use permit_wi1l . comply with each of the applicable provisions of this chapter. NOW, THEREFORE, the Planning Commission /City Council of the City of Saratoga does hereby resolve as follows: Section 1. After careful consideration of the site plan, and other exhibits submitted in connection with this matter, the application of Desert Petroleum for use permit review be and the same is hereby granted subject to the following conditions: 1. This resolution supersedes all previous use permit resolutions issued for a gasoline service station at this site. 2. The service station shall be open and operated only between the hours of 6:00 a.m. to 9:00 p.m. from Monday through Thursday; 6:00 a.m. to 10:00 p.m. on Friday; 7:00 a.m. to 10:00 p.m. on Saturday; and from 7:00 a.m. to 9:00 p.m. on Sunday. All gasoline deliveries shall be made and completed within the hours of 9:00 a.m. and 3:00 p.m. 3. Landscaping shall be maintained by the property owner in a good and orderly condition for the life of this use permit. All future landscaping shall emphasize native and drought tolerant species consistent with the City's xeriscape guide- lines. 4. The single driveway access onto Saratoga Avenue shall be designated and used as an "entrance only" driveway. Direc- tional signs shall be consistent with Section 15 -30 of the City Code. If marking only is not deemed to be effective, alternative measures shall be considered. 5. The driveways shall be chained after closing to prevent vehicular access to-the site._ 6. All gasoline pumps and storage tanks shall comply with the regulations of the San, Francisco Bay Area Pollution Control District and with the City of Saratoga's Hazardous Materials Storage Ordinance- 7. Any office exterior lighting. visible from outside of the structure shall be turned off at the time of closing specified in condition #2. 8. Design Review approval is required for any price or identifi- cation signs for the gas station's use. 9. Any other exterior modification' to the gasoline service station or use intensification will require approval by the Planning Commission. 10. The station shall be kept in good repair and free of dilapi- dated autos or other eyesores. 11. Per Section 15- 55.100 of the City Code, this application shall remain under the continuous jurisdiction of the Planning Commission. Any violation of the above code shall constitute grounds for consideration of use permit revocation. 12. The Planning Director shall provide an annual status report to the Planning Commission regarding compliance with these Use Permit conditions of approval. 13. Applicant agrees to hold City harmless from all costs and expenses, including attorney's fees, incurred by the City or held to be the liability of City in connection with City's defense of its actions in any proceeding brought in any State or Federal Court challenging the City's action with respect to the applicant's project. Section 2. Applicant shall sign the agreement to these conditions within thirty (30) days of the passage of this resolu- tion or said resolution shall be void. Section 3. All applicable requirements of the State, County, City and other governmental entities must be met. PASSED AND ADOPTED by the City of Saratoga Planning Commis- sion /City Council, State of California, this day of , 19_, by the following roll call vote: AYES: NOES: ABSENT: Bruce a Mschel 12750 Uka Court Saratoga, Callomia 85070 408 - 741 -1 242 3 -27 -1993 MS. KAREN ANDERSON, MAYOR SARATOGA, CALIFORNIA 95070 RECEIVED MAR 3 0 1993 PLANNING DEPT. DEAR COUNCIL MEMBERS /PLANNING COMMISION MEMBERS: MAR e IyY) Ci x 4t.:::ixA CITY MAN A CEI ;'S OFFICE HAVE KNOWN AND HAVE DONE BUSINESS WITH MR. ABE KAAPIBOUR FOR MANY YEARS. HAVE COME TO RELY ON HIS EXPERTISE IN SERVICING AND MAINTAINING MY AUTOMOBILES. I UNDERSTAND THAT MR. KAAPIBOUR IS SEEKING A PERMIT TO OPERATE THE ARCO SERVICE /GAS STATION, ON SARATOGA AVENUE AT BUCKNALL. THIS IS A FINE OPPORTUNITY FOR THE CITIZENS OF SARATOGA TO MAINTAIN AN ECONOMICAL AND CONVENIENT LOCATION FOR THEIR GASOLINE PURCHASES. CONSIDER THE SERVICE STATIONS IN THE SARATOGA COMMUNITY: [11 @ PROSPECT & SARATOGA-SUNNYVALE ROAD (OLD HIGHWAY 9); [21 @ SARATOGA- SUNNYVALE ROAD & BIG BASIN; [31 @ SARATOGA AVENUE @ BUCKNALL. THESE ARE THE ONLY - STATIONS IN OPERATION IN SARATOGA. IT IS VERY LIKELY CONSIDERING THE ATMOSPHERE AND MAKE -UP OF SARATOGA THERE WILL BE NO MORE GAS STATIONS.PERMITTED TO OPEN OR OPERATE. TO DENY MR. KAAPIBOUR THIS PERMIT WOULD LESSEN COMPETITION, CONVENIENCE AND SERVICE FOR THE RESIDENCES OF SARATOGA. THEREFORE I SUPPORT OPERATING PERMIT AND Co I L TO G T T S- 18E D , BR UCE A. R 12750 LIKA COURT SARATOGA. CALIFORNIA MR. KAAPIBOUR IN HIS REQUEST FOR THIS .URGE THE PLANNING COMMISSION AND CITY S--P)ERMIT. 95070 HFR- 09 -1.3.: FRI 10:59 IL:HEYERS NHVE ET HL TEL NQ:51@ 351 — 1401 4216 F07 MEYERS, NAVE, RIBACK & SILVER Michael R. Nave A Professional Law Corporadon Steven A. Me Bl ren WZ& H. Silver Cli�ad F, �� (latewe 777 Davie Street; SSuuite 300 1220 Howard Avows. Suite 250 Michael F. Rodriquez San Lesm4m, CA 94577. Buriirr�ama. CA 94010 4211 Kalhk" F � Frederick S. gdwfWS* Telephone: (510) 351 -4300 Facsimile: (510) 331 -4481 Tekplioae: (415) 349 -7130 Facsimile: (415) 342-0886 D A. Bonn D" er W. C avid Skinner Stevan T. Metre —"'a (707) 546 -3126 Of Counsel: Andrea I. Seb zMn KEIrIORAlTDUM s ly to: ee TO: City Council DATEt April 9, 1993 ?ROMi Michael S. Riback, City Attorney RE: UP - OUEBTION: 550.3 Desert Petroleum Time Extension What is. the extent of the City's authority to conditionally approve or deny Desert Petroleum's request for a 'ten -year time extension on its conditional use permit to operate a gas station? • The City may, after considering all the evidence, place reasonable conditions on a permit extension approval of the gas station to assure the continued operation will not constitute a public nuisance. The City has very limited grounds for denying a time extension on a conditional use permit. To deny an extension, the City must establish that the operation is a public nuisance or that reasonable conditions are not being complied with or must demonstrate some other compelling public necessity. The Council has pending before it the applicant's appeal of the Planning Commission's denial of a ten -year time extension of applicant's use permit. Desert Petroleum operates a gas station under a ten -year conditional use permit approved on January 28, 1984. Desert Petroleum is now requesting a ten -year extension of the permit. The request was denied by the Planning Commission on February 10, 1993. The denial was based primarily upon the Commission's determination that the request was premature and should not be fully considered until just prior to the end of the current ten -year term. The decision was appealed to the council. APR- 09 -'93 FRI 10:59 ID:NEYERS NAUE ET AL TEL N0:510i351 -4481 TO: . City Council FROX2 Michael S. Riback, City Attorney, by: Kathleen Faubion, Assistant'City Attorney Rs: UP - 550.3 Desert Petroleum Time.Extension DATE: April 9, 1993 PAGE: 2 21246 P 0 S It is clear that approval of a conditional use permit time extension, like approval of the original permit itself, is a discretionary act. The limits on the Cityls•discretion, however, has been a frequent issue at both the Planning Commission and City Council levels. In the past, we have consistently advised that the City may deny time extensions, but only on limited grounds, for example, if the use or proposed use is a public nuisance or a threat to public health and safety. (see,, attached Sung Memorandum.) This advise is reflected in a recent appellate court decision whose facts are quite similar to the Desert Petroleum situation.. In that case, the City of Costa Mesa denied a conditional use permit extension for a tavern whose parking abuts an apartment building in a residential zone. Goat Hili Tavern v City of Costa HASa (1992) 8 Cal.Rptr.2d 385. The tavern opened in 1955 and later became a legal non - conforming use. Over the years, the tavern had been granted conditional use permits to expand the operation. Costly refurbishment followed issuance of the permits. More recently, trash and noise complaints led the City to extend the permits for three and six -month periods, and finally to deny the extensions altogether. Both the trial court and appellate court ruled in favor of the Tavern, noting ( "(i] interference with the aright to continue an Igtablished business.is far more serious than the interference a property owner experiences when denied a conditional use permit in the first instance.... Once a use permit has been properly issued the power of a municipality to revoke it is limited." 8 Cal.Rptr.2d at 391, emphasis added.) The court went on to describe these limitations. A permit may be revoked if reasonable conditions are not complied with or if there is compelling public necessity, such as "where the conduct of that business constitutes a nuisance." Z Desert Petroleum similarly acquired a right to operate through its legal non - conforming status and subsequent 1984 use permit. The Goat Hill case demonstrates that Desert Petroleum has a vested right to continue its operation and.that its use permit extension cannot be denied without cause. If there is cause to deny, it must be so established in findings with strong factual support. y+ Hr'R- 05 -'5- i=RI 11:60 ID:NE'rEKS NHVE ET HL TEL .1,40:510/351-4481 246 Puy TOs City Council PROMS Michael S. Riback, City Attorney by: Kathleen Faubion, Assistant City Attorney REs UP - $50.3 Desert Petroleum Time Extension DILTE: April 9, 1993 PAGNS 3 The council is not precluded from conditioning any use permit extension upon reasonable conditions intended to assure that the operation will not be detrimental to the public health, safety or welfare or materially injurious to properties in the vicinity. The authority to impose such reasonable conditions is implicit in the findings the Council must make to approve the use permit extension. Please do not hesitate to call if there are any questions regarding this matter. MEYERS, NAVEL RIBACK & SILVER Miahae S. Riback City Attorney MSR:MKF:apn Attachment cc: City Manager Planning Director Planning Commission Z 7 4 \uuw \ apr9 3 \d *# * at . ak f