June 23, 2004
CALL TO ORDER
The meeting was called to order by Chairman Stopper at 4:03 p.m.
Chairman Stopper; Commissioners Bailey, Francis, Griffin, Hart, Savage, and Price
STAFF PRESENT: Chief Planner Rosen, Senior Planner Mullis, Assistant Planner Kusch, Senior Civil Engineer Wallin, Assistant Planner Sowers, and Recording Secretary Baker
MOTION by Commissioner Savage, seconded by Commissioner Price and CARRIED unanimously that the Minutes of June 9, 2004, be APPROVED AS WRITTEN.
Chairman Stopper announced that due to time constraints of the City Attorney, Items 1 and 2 would be heard in reverse order.
Commissioner Francis recused himself from Item 2 and left the room for the remainder of the meeting.
Public hearing was opened and members of the audience who wished to speak on Item #2 were sworn in by Chief Planner Rosen.
ITEM NO. 1
SITE PLAN SP-357A, CONDITIONAL USE PERMIT CUP-526B AND ZONING ADJUSTMENT ZON04-00058. APPLICANT: EMILE KHEIR; PROPERTY OWNER: MOBIL OIL CORPORATION
Staff report dated June 16, 2004, was presented pertaining to a request to modify an existing Conditional Use Permit (CUP-526) and Site Plan (SP-357) along with a request for a Zoning Adjustment to reduce by 20% a portion of the required landscape street setback along Harbor Boulevard from 10-0 to 8-0 for the construction and operation of an approximately 1,642-square-foot car wash facility on an existing gas station property located at 3950 North Harbor Boulevard (southeast corner of Imperial Highway and Harbor Boulevard) (C-2 zone) (Categorically exempt under Section 15303 of CEQA Guidelines).
Assistant Planner Kusch apologized to the applicant for the late hour. He explained to the Commission that the original site plan and CUP were approved in 1983 and in December 2001, a lot line adjustment was approved to expand the property south into the parking lot area. He spoke of the Engineering Departments need to widen Harbor Boulevard to accommodate a right-turn pocket at the intersection of Imperial and Harbor. He referred to the Engineers letter attached to the staff report. The plans submitted for the proposed car wash satisfy the development standards and the landscape setback would be relocated to accommodate the proposed street widening. The applicant was proposing a modification to an existing CUP and, reviewed site photographs and gave a brief history of the prior approvals for the property.
Commissioner Savage asked about an area shown in green on the site plan that was proposed to be reduced. Assistant Planner Kusch stated that the reduced portion would be 8 feet in width, to clear an existing environmental monitoring well, with the remaining landscape setback at the required 10 feet.
Chairman Stopper asked about the small, green area in the corner of the site plan. Assistant Planner Kusch explained that it depicted relocated landscape at the street corner and a monument sign location.
Commissioner Price asked if the applicant was proposing landscaping below the monument sign. Assistant Planner Kusch answered affirmatively.
Chairman Stopper asked about the location of power poles. Senior Civil Engineer Wallin was not sure how they will be located. He talked about the Imperial Highway Smart Street Project and how staff was currently working with the consultant on various designs for the intersection.
Commissioner Bailey asked about the architecture and the elevations. Assistant Planner Kusch explained that the proposed car wash would be stucco with a wainscot stone veneer base. The tunnels would be open, with the building elevations having some articulation with pop-outs.
Applicant Emil Kheir, owner of Mobil Gas Station located at Harbor and Imperial introduced himself and stated that he has been in the oil business since 1976. He stated that he owned gas stations in San Pedro, Los Angeles, Orange County, and Norwalk areas. He also had sites with car washes and repair bays, but is focusing on the car wash business. He stated that the proposed site was selling 12,000 gallons of gas daily which is the highest since it was first built. He is building a large customer base, and has been advertised on the radio as the lowest selling gas in Fullerton. He stated that he likes Fullerton and feels this will be a successful venture.
Commissioner Bailey thanked Mr. Kheir for his faith in Fullerton. He asked how long it would be before he would build the proposed convenience store. Mr. Kheir stated that it depended on how successful the car wash proves to be. He has a site in Cypress where car wash customers wait in line for 30 minutes, which is why he is proposing a car tunnel wash. He stated that the second tunnel will cost him $200,000. Commissioner Bailey asked where his gas station in San Pedro is located, and Mr. Kheir told him it was at Western and 25th Street.
Chairman Stopper asked if Mobil Oil would still own the property. Mr. Kheir explained that it would be a lease relationship. He tried to buy the site, but Mobil Oil was not willing to sell it.
Commissioner Savage asked Mr. Kheir to explain the drive through car wash process. Mr. Kheir explained that there are sophisticated machines. It is a pressure wash and there are two horsepower dryers on each side.
Public hearing opened.
There was no one present to speak.
Public hearing closed.
The title of Resolution No. PC-04-23 APPROVING a site plan to construct an approximately 1,642-square-foot car wash, a Conditional Use Permit for the car wash operation, and a zoning adjustment for a 20% reduction of a portion of the required landscaped street setback, on property located at 3950 North Harbor Boulevard, was read and further reading was waived. MOTION by Commissioner Bailey, seconded by Commissioner Hart and passed unanimously by members present, that said Resolution be ADOPTED AS WRITTEN.
ITEM NO. 2
CONDITIONAL USE PERMIT CUP-1052 REV. APPLICANT: CITY OF FULLERTON; PROPERTY OWNER: ADVENT FULLERTON LLC.
Staff report dated June 16, 2004, was presented pertaining to a request to consider revocation of, or modification to, a previously-approved Conditional Use Permit (CUP-1052) for a bar use at 116-1/2 West Wilshire Avenue (south side of Wilshire Avenue, approximately 250 feet west of Harbor Boulevard) (C-3 zone) (Categorically exempt under Section 15301 of CEQA Guidelines).
Assistant Planner Sowers explained that the Fullerton Municipal Code established guidelines for revocation proceedings of a Conditional Use Permit (CUP). A public hearing must be held to determine whether there was a failure to comply with one or more of the conditions of approval. The Planning Commission could revoke the CUP, or take other actions as deemed appropriate. The owner/occupant may appear in person, or be represented by legal counsel. He or his representative may present oral or written evidence, call witnesses, cross examine and ask questions. City staff, including Police and Fire personnel, would provide testimony on the Citys behalf.
Assistant Planner Sowers stated that the Planning Commission would deliberate and make a decision; the owner/occupant would then have a 10-day period to submit an appeal. Assistant Planner Sowers described the location and surrounding businesses. She explained that only Red Cloud and Back Alley had Type 48 licenses. Fierro, Ziings, Plush Design Lab, and Revolucion are restaurants with either a Type 47 or Type 41 ABC license. A Type 41 license is for selling beer and wine only. A Type 47 license is for a restaurant use selling beer, wine or distilled spirits. A Type 48 license is for a bar or nightclub use selling beer, wine or distilled spirits, and food service is not required.
Assistant Planner Sowers reported that in 2001, Back Alley Bar and Grill requested a change from a Type 47 license to a Type 48 license, eliminating the restaurant use for economic reasons. A full bar use in the Central Business District requires a CUP, and is subject to conditions of approval, including provisions which provide for revocation of the CUP. The Fullerton Municipal Code also provides for revocation, upon failure to comply with the conditions of approval. These proceedings were initiated by staff, at the direction of several members of the City Council.
Assistant Planner Sowers stated that staff believed Condition of Approval #4 of CUP-1052 was violated by having more than three verifiable complaints within a 12-month period, which were grounds for revocation proceedings. She reviewed the police reports provided as part of the staff report, noting five specific incidences were reported. Condition of Approval #6 was also violated because the occupant load was exceeded on several occasions, causing the Fire Department to give six warnings and one citation, currently being handled by the judicial system.
Assistant Planner Sowers described the encroachment agreement, which was provided in April, 2002, for the use of the patio and protection of the public interest, while permitting outdoor dining. This agreement could be cancelled at any time by the Director of Development Services, to correct violations that affect public health, safety and general welfare.
Assistant Planner Sowers stated it was staffs opinion that the operating conditions were cumulatively detrimental to public health, safety and general welfare, and requested that the Planning Commission revoke CUP-1052 and provide direction to the Development Services Department Director to cancel the encroachment agreement for outdoor dining in the Central Business District. It was also staffs opinion that these infractions were done knowingly, or with reckless disregard of the requirements for compliance.
Notification of the revocation hearing was sent to the property owner, business owner and adjacent property owners.
Assistant Planner Sowers asked the Police and Fire staff to give their testimony.
Sergeant Craig Brower, testified that he was working the graveyard shift Mondays, Tuesdays, and Wednesdays. He asked for the officers that were at the scene to give their firsthand witness account of the four incidents.
Sergeant Sean Fares was the field supervisor on scene and summarized the aggravated Assault Case #03-5823. Officer Al Rodriquez, summarized the drunkenness with Arrest Case #03-13788. The officers answering the call on the Grand Theft Case #03-16618, and the Robbery Case #04-681, were not able to attend the Planning Commission meeting, therefore, Sergeant Brower gave the summary of those two incidents.
Assistant Planner Sowers asked Chief Julie Kunze, Fire Marshal, to give her report. Chief Kunze explained that the Evening Inspection Program began in March, 2004. Out of the 15 inspections, she was present for 11 of them. The owner was warned 13 out of 15 times, and the May 5 citation was given because Chief Kunze believed sufficient warning had been given. She stated that the patio has been the main problem. The total occupancy was 75 for the building and patio combined.
Assistant Planner Sowers asked the business owner if he wished to give testimony.
Sandy Kates explained that he and his son Brandy have owned the Back Alley Gar and Grill since 1999. He presented for the record a petition signed by approximately 1,000 patrons and residents in support of Back Alley. He spoke of his love of Fullerton, his residence, his business, and the community feeling. He struggled in the first few years, but learned from his mistakes and has made, and will continue to make, changes to improve. He spoke of how he welcomed other new businesses to the area and noticed that they are restaurants that became clubs at night. He felt he had done the best job possible and used his life savings to start the business. His staff was trained by ABC classes and Fullerton Police Department personnel. He also felt that Back Alley was unfairly blamed for many calls because they are diligent to call on any criminal behavior, and if patrons call from the parking lot, they give the Back Alley address because it is most visible.
Brandy Kates, said that it was difficult to identify problem customers as they enter. The bouncers have been carefully trained to not get into a conflict with problem customers. He stated that management had developed a stricter dress code and they keep notes on all incidents.
Sandy Kates stated that there were several incidences of honest patrons turning in wallets, diamond rings, etc. He felt his staff was doing the morally and ethically correct thing by calling in incidents from other establishments also. He said it was unfair to record his calls for service to other locations as being attributed to his business. He did not recall Chief Kunze stating that she was giving warnings. Chief Kunze stated that perhaps she didnt use the word warning, however business owners attending a Downtown Businessmens Association meeting were told about the Evening Inspection Program.
Mr. Kates stated that he had:
- been cooperative with fire and police staff
- painted a red pathway to keep an area clear
- hired an extra bouncer
- provided three bouncers on busy nights
- established lines to control the occupancy total
- signed a lease for adjacent building to expand, requiring food preparation
- hired a chef to prepare food
He stated that the restaurant operations will target a more upscale clientele and allow the entrance to move to Wilshire, making the patio area exit only with no re-admittance. Sandy Kates stated that he met last week with Officer Glenn Stotz, who told Mr. Kates that his bouncers are cooperative and professional, and call whenever there is an altercation. Officer Petropulos concurred with Officer Stotzs statement.
Commissioner Bailey asked about any statistics of the surrounding businesses on their level of crime. Chief Kunze stated that on any given night, the surrounding businesses also received a warning.
Sergeant Brower reported that the calls for service to Back Alley were consistent with Rockin Taco, but higher than Revolucion and Ziings. He stated that:
The radio traffic cites cases that are not specifically related to the locale identified
The Building Code required that a patio or fenced area must have an occupant load, which is the square footage divided by 15.
There was no way to determine where the 120 person melee initiated. In a parking lot, the group mentality set in. It would be inaccurate to associate it with any one bar.
Commissioner Savage asked staff to display the aerial photo of the parking lot. He also asked if Revolucion had a CUP. Assistant Planner Sowers responded that because it was a restaurant and had a Type 47 license, it did not require or have a CUP. She also explained that Fiero, Ziings, Revolucion and Back Alley all had a Type 47 or 41 license and, therefore, required no CUP.
Commissioner Savage asked Chief Kunze why there were so many warnings and no citations. Chief Kunze stated that the goal was not to issue citations, but to educate the business owners so that they could control the occupancy load themselves. She felt that it worked for a short period of time. If there was no Fire Department presence, they would not comply. She stated that many times she would drive by the downtown establishments noticing overcrowding. All business owners were told that if they didnt control the occupancy load, they would be cited.
Commissioner Savage asked about the activity in both parking lots. The Police Department stated that the parking lot behind Rockin Taco was as active as the parking lot behind Back Alley.
Sergeant Brower stated that Tuesday was usually the busiest night, the businesses in the area are filled to capacity, and the streets are full. After hours the activity is busy with significant pedestrian traffic behind Back Alley. He said that there was a similar pattern in the other parking lot.
Commissioner Savage stated that he circled the property and on Harbor Blvd. there were carloads of young adults yelling at others in establishments on Harbor. He asked if this type of behavior was routine and if it caused traffic problems on Harbor Blvd. Sergeant Brower stated that it is routine and in his experience, it has not caused a traffic problem on Harbor Boulevard.
Commissioner Price asked if, on every occasion, a warning was issued and what the business owners were told. Chief Kunze stated that she would always go out with a Police officer and typically it was Officer Al Rodriquez. She wouldnt always use the word warning. Officer Rodriquez said that they would always write down who they spoke to and he would either speak with a bouncer, Sandy Kates or Brandy Kates.
Sergeant Brower reminded the Commission that other incidents listed in the report summary were not reflected in the testimony given. Fights, public intoxication, theft, etc., have occurred in the parking lot and cannot be connected with Back Alley.
Commissioner Price asked which establishments had the Type 48 license or a CUP. Staff answered that only Red Cloud and Back Alley have a CUP.
Commissioner Hart asked Chief Kunze what the extent of overcrowding was. She stated that they would only speak to the staff if there was overcrowding by 10 or more. Other facilities also are consistently overcrowded.
Commissioner Hart asked where the four suspects from the four incidents reside. Sergeant Brower stated that they were from La Mirada, Moreno Valley, Orange and the other suspects residence was not identified.
Commissioner Griffin asked if the calls were typically from the 911 or the regular dispatch line.
Sergeant Brower stated:
Most calls come into 911 from cell phones and their goal was to get to the scene quickly to resolve the problem.
When dispatch asks the complainants location, they usually give the address most easily seen and because Back Alley has a large canopy over their entrance with the address, it is most typically reported.
If, after answering the call, it is discovered that the occurrence was at Ziings or Revolucion, the officer does not change the report.
The statistics show the parking lot and the Police Department refers to it as the Back Alley parking lot, even though it is used by patrons of many surrounding businesses.
Commissioner Griffin also asked if a delineator could be put in the CAD system. Sergeant Brower said that because of what he has discovered by researching this problem, he has requested that officers now document the location of the incident and interview the people involved to track where the problem generated. Commissioner Griffin was concerned that officers were spending so much time in this area, and he did not want to further delay them by requiring additional reporting, but felt that some additional identification was necessary.
Chairman Stopper asked staff about the direction of City Council. Chief Planner Rosen said this was not a formal action, and he did not know the two City Council members who requested the review.
Chairman Stopper also asked Chief Kunze what the citation process involved.
Chief Kunze stated:
After verbal warnings, a correction notice was given
The citation was similar to a traffic ticket, and there is a notice to appear.
Sandy Kates appeared in court on June 1, 2004
Staff made a recommendation to the City Attorney to recommend to the judge a fine and then probation.
There was a significant amount of staff time involved in policing.
Staff asked Deputy City Attorney Barlow of the City Attorneys office if she could give any additional information regarding the citation proceedings. She responded that:
She was not familiar with this type of proceeding
It would be up to the judge to make a final determination
The business owner could also request a jury trial
Mr. Kates could work off the citation also
Chairman Stopper asked Sergeant Brower if there were frequent occurrences of gang problems. Sergeant Fares stated that Fullerton had neighborhood gangs, but there were not many gang incidents at this particular location. He stated that gangs do not have boundaries, and the Tuesday night entertainment was advertised on various radio stations, some that appeal to gang members. Promotional companies put flyers on car windows advertising future events.
Chairman Stopper also asked for the Police Department to give more details on other calls. Officer Rodriquez stated that when Back Alley staff calls and identifies the combatant, it usually is not difficult to locate them by their behavior. With the cell phone theft, it was not reported to the Back Alley staff, a desk report was taken at 2:45 a.m. and there was nothing to verify after the fact. In the case of the theft of the necklace, it happened in seconds and a frantic female caller was in the parking lot calling on a cell phone and Back Alley staff was not aware of the incident.
Commissioner Bailey asked if theft was common in other downtown businesses. Sergeant Brower stated that the other businesses have it also. He stated that it is difficult for bar owners to be sure of a customers state of inebriation upon entering, therefore, it is easy to serve too much alcohol before realizing the level of drunkenness. Back Alley has always acted responsibly when they realize the situation and call for assistance.
Sandy Kates asked Chief Kunze if she saw lines outside of Back Alley on most occasions and if she ever witnessed a fight. Chief Kunze responded affirmatively regarding the lines, but stated that she had never witnessed a fight on the patio. She also stated that the Back Alley patio was unique because of the exiting system.
Commissioner Bailey asked Mr. Kates how many altercations are not reported, realistically. Sandy Kates stated that he and his staff call in everything because if someone is hurt and it was not reported, he is liable. Occasionally he or his staff is able to settle patrons in a dispute and they will not need to call. He estimated that once a month there is a dispute that is settled without having to call the police. Mr. Kates also stated that the crowds are larger than the first two years they were in business. They have changed the type of music and the dress code. He admitted that he should have been stricter on May 5, 2004, when he was given a citation for overcrowding. He felt that it was virtually impossible currently to have an absolute count.
Sandy Kates stated that he is planning an expansion and has signed a lease for an adjoining building. He will be providing a more upscale, higher priced dining area in the front. He has hired a Chef and will increase the bouncers in the front and the back. He will establish the rear door as an exit only. He stated that it has been stressful and difficult to control the occupancy. He will have the bouncers count with a clicker. He hoped to have these changes done within two months.
Chief Planner Rosen stated that a modification of the CUP would be required to expand the use of the front space.
Commissioner Hart asked what was required for that process. Chief Planner Rosen stated that it would be a hearing similar to the present one.
Public hearing opened.
The following persons spoke in support of Back Alley. Sandy Kates asked his patrons to keep their comments short.
Chris Prestoff, Downey, employee of Back Alley
Steven Lamprinos, Fullerton resident
Kevan Barker, door man at Back Alley
Todd Huffman, Fullerton resident
Todd, 40-year Fullerton resident
Dave Smits, 4 year Fullerton resident
Mark Stouffer, Fullerton resident for six years
Joey Distelhorst, Back Alley bouncer
John Ross, Fullerton resident
Jessica Gegan, Fullerton resident
Kevin Barult, Fullerton resident
Dennis Rootes, 7 year resident of Fullerton
Gabriel Marra, Fullerton resident
Todd Emperada, La Mirada
Jennifer Bishtin, 14 year Fullerton resident
David Benet, CSUF graduate
Jerry Mortar, Fullerton resident since 1975, and a downtown business owner
The following were the points of support:
Back Alley should not be blamed for all police calls to the area
It is a well-run family operation and a positive addition to the Downtown
There are overcrowding and crime problems with other establishments in the area, and Back Alley should not be singled out because their address is most visible
Altercations and conflicts were inevitable with any bar use, but Back Alley owners handle all problems expeditiously
Back Alley staff attends training classes on a regular basis
Back Alley has a friendly atmosphere and patrons feel safe there
Tally Counsel, Executive Master Chef, was approached to be a chef in the restaurant inside Back Alley and is looking at the space. He felt that providing food would change the environment. Commissioner Bailey asked if he was planning on serving lunch and dinner. Mr. Counsel stated that he planned to operate food sales until 1:30 a.m. He said that there would be food served every day and he would be assisted by backup chefs.
Public hearing closed.
Commissioner Bailey asked for a clarification of the revocation policy, Attachment 2, Section C.2, regarding reckless regard. Deputy City Attorney Barlow stated that when the Planning Commission considers possible revocation because of violations to the CUP, two findings are required to be made. She explained that the CUP would be revoked if:
the CUP conditions were not complied with by a certain date
or within a certain time period
the applicant or permit holders failure to comply was done knowingly or intentionally
the applicant did not take appropriate care to determine what the requirements were
the applicant knowingly or with reckless intent had not corrected the violations
Chairman Stopper discussed the options presented, which would be to accept staffs recommendation and agree to proceed with the revocation; to reject staffs recommendation and not to proceed with the revocation; add conditions not in the CUP; defer this item to a later date; or set up a probation period to revisit this item after a period of time.
Commissioner Griffin agreed with the residents who spoke about the downtown area. He was impressed with the changes in downtown and credited the business owners for that success. For the sake of the audiences, he clarified that the Planning Commission was appointed by City Council for a four-year period and the City Council was elected by the residents. He apologized to Mr. Kates for not being able to visit his business. He stated that he was concerned initially by the amount of calls reported at Back Alley . After hearing the testimonies of the Police and Fire personnel, residents, employees, and the business owner, most or all of his concerns were allayed. He wondered what the motivation was to call the revocation hearing, but stated that it was not his place to ask, just to render an opinion. He believed that the Back Alley was being penalized, they are a good neighbor and are doing the right thing. He did not feel that there was a basis for revocation of the CUP, and would not be supporting the revocation or any changes or modifications of the CUP.
Commissioner Bailey agreed with Commissioner Griffin He felt that there was only one concern and that was over-occupancy and they have been cited, made changes and are dealing with the situation. He felt they were unfairly set apart because the computer logged their address for many calls that were not related to their business. He felt that if there were any future over-occupancy citations, the Planning Commission could revisit this item. He would not support staffs recommendation and recommended to amend the CUP. He suggested that Mr. Kates consider making the patio larger.
Commissioner Hart met and visited with Sandy Kates, because she was unfamiliar with Back Alley. She stated that she had gone on a ride along with the Police Department. One occurrence was in front of the Back Alley, where the suspect was drinking in his vehicle near the patio area. She spoke of other incidences in the area that she witnessed, and two altercations related directly to Back Alley. She wondered about the best way to control overcrowding. She felt that all the patios in the downtown area should be taken into consideration, not just Back Alley. She suggested a reconfiguration of the patio to keep altercations inside, or possibly give up the patio area. She was not clear whether to amend, or change the CUP, but she did not want to revoke the CUP. She agreed with staff to cancel the encroachment agreement.
Commissioner Savage felt that the Kates family must be good people to be able to attract so many customers who are satisfied. He thought Back Alley was getting a bad name because many calls are associated to their address. He commented that bars that dont serve food would be more problematic than bars that serve food. He did not want to wait another year to deal with this. He visited the site late on Friday evening and he did not feel safe and would not exit his vehicle. He could not dismiss the 100-person fight and knew the origin could not be proven. He felt that the evidence was not overwhelming, but there was enough to support staffs findings. He commended the owner for recognizing the difficulties and making changes, like planning to include food service. He felt that the Planning Commission must review this based on the actions of the last 12 months, not on future plans. He recommended putting conditions into the CUP by adding a stipulation that food be served. He recommended withdrawing the encroachment agreement only, and suggested that the City also review the other restaurants in the Central Business District. He had heard no evidence that disputed the fire and police reports.
Commissioner Price stated that he was the only current member of the Planning Commission when the CUP was originally given to Mr. Kates. He did not support the revocation. He shared concerns about the operations of Back Alley, and he was not convinced that the overcrowding issue had been sufficiently handled. He wanted more specifics on how they would be counting customers, monitoring the occupancy limit, and keeping it controlled. The other bars do not operate with a CUP, and can only get a citation. He talked about the fact that more police calls are initiated by Back Alley staff, or reported at their address because of its location. He felt the business owner and his family operated with their best intentions, but there was negative activity in and around the area near his business. He suggested adding additional conditions to the CUP, have a probationary 90- or 120-day period where Mr. Kates would return to update the Planning Commission on his property development. He felt that the Planning Commission could not make a decision now based on Mr. Kates possible future plans. He felt that the existing problems might be alleviated by the proposed changes.
Commissioner Savage felt that there were two issues to be considered: the revocation of the CUP and removing the encroachment permits for all businesses that encroach on City property.
Commissioner Price asked staff if it would be possible to remove the encroachment agreements for the other properties. Deputy City Attorney Barlow stated that it would not be possible to do that tonight, but it could be agendized to be reviewed in the future.
Chairman Stopper asked legal counsel if that should be handled as a separate issue. Deputy City Attorney Barlow stated that this was a different issue and not on the current agenda. She said that the Director of Development Services could independently decide to terminate the encroachment agreements without having the Planning Commission review it. She stated that the Planning Commission may request to review encroachment agreements in the future.
Chairman Stopper asked if the Planning Commission had the ability to make a recommendation to the Director of Development Services to consider revocation of all the agreements. Deputy City Attorney Barlow answered affirmatively.
Commissioner Savage recommended that staff review how to deal with all the encroachments on City property.
Commissioner Griffin did not support the revocation of the encroachment agreement. He felt that it was not fair to recommend revocation of the encroachment agreement for Back Alley when there are other encroachments permitted in the area, and thought that the entire Central Business District should be reviewed.
Commissioner Bailey felt that there was an option to amend the CUP to require food service and maintain an acceptable occupancy count. He felt that the entire Central Business District should be reviewed regarding encroachment agreements. He wanted to see options for separating dining patrons from pedestrian traffic by trees, walls, etc.
Commissioner Savage felt that Mr. Kates business was viewed differently because there was currently no food service. He did not feel that the recommendations were unreasonable.
Chairman Stopper discussed the various types of businesses that have occupied the Central Business District in the 28 years he had lived in Fullerton. He felt that the business owners have made the changes and taken the financial risks. He felt it was unfortunate the Back Alley has been blamed for criminal activity that was local, and not specifically related to them. He also stated the following:
He did not hear sufficient evidence that Mr. Kates failed to comply with Condition #4
He could not support the revocation of the CUP
The police reports could not specifically relate the suspects to Back Alley
He recognized that some of the patrons have abused alcohol to their own detriment
He found that the occupancy load was exceeded repeatedly; however, he did not feel that the owner knowingly and intentionally failed to comply
He felt there was an action plan in place to correct past problems
He felt that the root of the problems in the area needed to be identified
He did not feel that the operations of the Back Alley Bar and Grill were detrimental to public health and welfare
He felt that it was a social-based problem with alcohol abuse, and how people conduct themselves as members of society
He felt that this business was being singled-out for punishment
He did not support staffs recommendation to revoke the CUP and did not support the encroachment agreement being repealed.
MOTION by Commissioner Savage recommended that the Development Services Department Director revoke the encroachment agreement for the patio. Seconded by Commissioner Hart.
No further discussion.
Commissioner Hart, Commissioner Price, and Commissioner Savage voted in favor; Chairman Stopper, Commissioner Griffin, and Commissioner Bailey voted against, and the motion died because of the tie vote.
Commissioner Griffin stated that a lot of issues are not a cause of the Back Alley Bar and Grill. He felt that in all fairness he could not place one more condition on the Back Alley, as it should not be their responsibility alone to fix the problem in the area. He suggested that the business owners hire an armed guard for the parking lot.
MOTION by Commissioner Griffin, seconded by Commissioner Bailey, that the Planning Commission DENY the request to revoke CUP-1052, approving a bar use at 116 W. Wilshire Blvd.
Commissioner Price felt that the Planning Commission has some real concerns with the operation of the Back Alley and the occupancy issue, but they had not risen to the level where the CUP should be revoked. He stated that he would vote with Commissioner Griffin on the motion. He still thinks that there was a problem that needs to be resolved.
Commissioner Savage felt that there was no overwhelming evidence to revoke the CUP. He suggested that any Planning Commission members who have not yet done so, ride along with the Police Department take advantage of that opportunity.
Commissioner Hart felt that she could not support keeping the CUP without some kind of modification, e.g. serving food. She felt that the ride along was an eye opener. She did not support staffs recommendation to revoke the CUP, and suggested that a condition be added to require that food be served.
Commissioner Griffin asked to modify the motion to add: direct staff to bring the entire issue of encroachment agreements in the Central Business District back to the Planning Commission for further review.
Commissioner Price stated that it should be a separate motion.
Deputy City Attorney Barlow agreed that it should be a separate motion.
Commissioner Griffin agreed and withdrew his modification to the motion.
The motion passed unanimously by all members present.
Deputy City Attorney Barlow noted that the appropriate resolution would be brought back for the Planning Commission at the next meeting since a draft denial of revocation resolution was not prepared.
Chairman Stopper thanked the people who participated in the hearing.
MOTION by Commissioner Griffin, seconded by Commissioner Bailey, that the Planning Commission agendize for a future meeting discussion regarding encroachment permits relating to outdoor dining patios or bars that encroach on City property, limited to the Central Business District.
Commissioner Bailey offered an amended motion to add alcohol sales in the outdoor dining areas in the Central Business District. He asked staff to bring pending or currently active liquor licenses for businesses encroaching on public property in the Central Business District. After discussion, Commissioner Bailey withdrew his motion.
Commissioner Griffin asked if the City had purview over granting ABC 47 and 48 licenses. Chief Planner Rosen stated that the City had some purview over both.
Commissioner Savage was concerned with a shotgun approach trying to catch the whole city. He felt that there was no question that there was a problem in the rear parking lot. He thought it should be limited to the specific area behind Revolucion and Rockin Taco. Chief Planner Rosen clarified that the area as Wilshire on the north, Commonwealth on south, Harbor on east, and Malden on the west.
Commissioner Griffin stated that he would accept Commissioner Savages amendment.
Discussion ensued whether the area should include the south side of Commonwealth Avenue.
Commissioner Price thought the Planning Commission should focus on the smaller area first to see what they can affect and then agendize a larger area.
Commissioner Griffin asked that the area be Harbor, Wilshire, Malden and the North side of Commonwealth.
Chief Planner Rosen clarified the motion by Commissioner Griffin, seconded by Commissioner Bailey, and amended by Commissioner Savage, that staff return with an agendized item to discuss outdoor patio uses encroaching on public property in the area bounded by Wilshire, Harbor, Commonwealth and Malden.
The MOTION passed unanimously by all members present.
Sandy Kates thanked the audience for their support.
The Planning Commission took a 10-minute break, and the meeting reconvened.
RESOLUTION OF INTENTION. PRJ04-00548 LRP04-00014. APPLICANT: CITY OF FULLERTON
A Resolution of Intention to change the existing General Plan land use designation from Government Facilities to Medium Density Residential and change the zoning designation from P-L, Public Land, to R-3, Limited Density Multiple Family Residential, for a potential redevelopment project on property located at 1500 North Gilbert Street (northeast corner of Pioneer Avenue and Gilbert Street) (P-L zone)
Chief Planner Rosen explained that the Resolution of Intent was part of the surplus property process. Government agencies offer the property, it is put on the market where bids are accepted, and the highest bidder will be considered.
MOTION to approve the Resolution of Intention by Commissioner Griffin, seconded by Commissioner Savage. The MOTION passed unanimously by members present.
DISCUSSION REGARDING TIME OF PLANNING COMMISSION MEETINGS
This discussion will be held at the July 14, 2004 meeting.
Chief Planner Rosen informed the Commission that the Redevelopment Area Maps were provided, as requested.
REVIEW OF COUNCIL ACTIONS
Chief Planner Rosen gave a brief update on recent City Council meetings.
There was no one from the public who wished to speak.
The next meeting of the Fullerton Planning Commission will be July 14, 2004, at 7:00 p.m.
There being no further business, the meeting was adjourned at 8:15 p.m.