HomeMy WebLinkAbout04-05-1999 PC MinutesL ;;
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Planning
Commission City
of Orange PRESENT:
ABSENT:
STAFF
PRESENT:
IN
RE:April
5, 1999 Monday -
7:00 p,m,Commissioners Bosch,
Carlton. Romero Commissioners Pruett,
Smith ,John Godlewski,
Principal Planner.Mary Binning,
Assistant City Attorney,Roger Hohnbaum,
Assistant City Engineer, and Sue Devlin,
Recording Secretary c ~-'I ; }. \
CONSENT CALENDAR
1,
Approval
of
the
Minutes from
the Regular Meeting of March 15, 1999,MOTION Moved by Commissioner Carlton, seconded
by
Commissioner Romero, to approve the Consent Calendar.AYES:NOES:ABSENT:IN RE:Commissioners
Bosch,
Carlton,
Romero
None Commissioners
Pruett, Smith MOTION CARRIED
CONTINUED
HEARING 2, APPEAL NO, 456 -
GARY MESERVE,
APPELLANT An appeal of the Community Development Director'
s decision to allow a change in the permitted use of a non-conforming commercial building in a residential
district (R-1-6), The site is located at 135 South Cambridge,This item was
continued
from the March 1. 1999 hearing.)Mr. Godlewski stated this
is the site of the former P,J, Mead Books and Coffee business, and has been used in commercial use
since the early 20's or 30's. It was originally a market; most recently it was expanded to be a
deli with books and coffee. The zoning was established in 1946, creating its non-conforming status, The proposed
change in use is from a coffee, baked goods and book store to an art framing gallery and jewelry
workshop, with the sale of coffee, There is no longer an indoor or outdoor dining area in the
new use that is proposed, In the Director's letter dated January 14, 1999 it identifies what the specific approval
is for. with specific conditions outlined on the second page. The Director's decision was based on
the fact that the proposed use is equal to or less intense than the use that was previously located there, which
is allowed by code under the non-conforming section of that code.This item was
before the Commission in March, and subsequently, staff has provided more information to the Commission in
the staff report dated March 23, 1999, On the second page of that report, it lists the discussion on the
background of the six-month time frame, as well as the hours of operation for the proposed art
gallery/picture framing business, Specific conditions were set. but that does not mean the Commission can'
t sef more conditions or change those conditions,It was
noted for the record that a letter was received from Lisa Ackerman,1
Planning Commission Minutes April 5,1999
The public hearing was opened,
Appellant. Garv Meserve. 153 South Cambridqe Street, plans to pursue this issue and they will appeal the
Commission's decision to City Council and then pursue litigation, The people believe some real wrongs
have been committed, The neighbors lived with a nightmare for five (5) years on Cambridge Street
regarding the traffic problems, There is no parking at this location and there is restricted parking on
Cambridge Street. Eighty (80) tickets were written in a two-month period, There is a discrepancy on
the business being open. He wanted to know what the Director based his opinion on, To his
knowledge.they only had garage sales on Saturdays at the site; the business was not open, He will subpoena
Mr.Mead's tax records in order to prove whether or not the business was open, The Higgins are continuing
to violate their lease, Right now, the business is not selling coffee. There are two (2) business licenses
for the site, One is for Gary Mead to sell coffee/cappuccino and baked goods. The other is for the
art gallery/picture framing business, He had a problem with the grandfather clause. This grandfather
clause was for the grocery store. The market changed to a book store and the deli started specializing in
coffee.Now the use is expanding to an art gallery with gatherings, He does not believe Mr. McGee followed
City policy, The Mayor stated three (3) years ago that there would be no gatherings or meetings at
this location, He submitted pictures to the Commission and a menu advertising breakfast. lunch and
dinner.Four (4) people spoke in favor of the
apoeal:Steven Bell, 167 South Cambridge
Street Helen Bridges. 159 South Cambridge
Street Richard Carlson, 160 North Prospect #
11 Carole Walters, 534 South Shaffer
Street They presented a history of the neighborhood market and believed the expansion of the commercial
use is in violation of the non-conforming use to be the same or more restricted classifications.
The speakers believe the business was closed for eight (8) months. beginning in April. 1998, In December,
1998, Ms.North requested to open an art gallery/picture framing and jewelry workshop at this site. One
resident was confused about the two addresses at the site, 133 and 135 South Cambridge, Parking is a
major problem.Cambridge Street is not able to handle another 34 cars, There is no agreement for Ms, North to park
in the parking lots, There is only one parking space provided on the site; however. people continue to
park two vehicles in the driveway. The contract for jewelry classes has been terminated because it is not
zoned for this type of business. But, classes
are continuing,Two (2) people spoke aqainst
the appeal:Bob Mickelson, P,O, Box 932, represented the Mead
Family Trust Ellie North, 135 South
Cambridge Street Mr. Mickelson said the market was established as a legal, non-conforming use, When it
was converted to P.J. Meads, it was approved by the City as a change to a similar or less
restrictive non-conforming use,Now, another change to a similar or less restrictive non-conforming use has
been approved by the Director of Community Development. Mr. Mead manages nof only the property in question,
but at least five (5)other businesses in the City of Orange. The problem is not changing to other uses.
but that Mr. Mead is so successful. Mr, Mead opened the business periodicaUy to hang on
to his legal, non-conforming right The cash register tape was provided to the Commission to confirm
there were
sales from April to September, 1998,Ms. North stated she can park two (2) cars in the driveway if the gate is open,
She teUs people not to park in the two parking lots, Ninety percent of her business is pick up and delivery and she
does not get a lot of walk intraffic--two or three people a week, Her hours are from 9:30 a,m,
to 5:00 p,m, Tuesday through Friday, and Saturday by appointment. There is no kitchen at
135 South Cambridge; it is completely gutted and is used for an office, She wanted to know what
constituted a meeting or gathering. She explained the type of art business she has, Her jewelry classes are a
way of contributing to the community, The classes are held in the evenings from 6:00 to 8:30 p,m,
on
Planning Commission Minutes April 5, 1999
more than seven (7) students attending these classes, The apartment in the back is rented by her
daughter and the address is 133 South Cambridge, She has not met Mr. Higgins and does not have an
agreement for parking with him, She does not have a written agreement for parking at Mr. Lundquist's
building; however, verbally he didn't have a problem with people parking in the lot in the evenings for a
short period of time, Mr. Mead asked her to manage the coffee and baked goods, and her daughter
agreed to sell coffee and baked goods, on a "to-go" basis, during the day from 9:00 a,m. to 5:00 p.
m,They are not selling coffee and baked goods until these issues are resolved. It is her understanding
there would only be one (1) employee at the business during business hours to sell coffee. Ms. North and
Mr.Mead have an informal verbal agreement between them, but nothing is in
writing,Barbara DeNiro. address on file, remained neutral. She stated success means different things to
different people; it depends on how one gets there, The problem at this location is parking, It bothers her
that there are two different businesses at this one
address,Appellant's
response Mr. Meserve wants the tax records for the eight (8) month period to prove the business was open.
Parking at the Fairbairn Building is questionable, As many as four (4) or five (5) UPS trucks make deliveries to
the site every week, The jewelry classes were started two (2) weeks before a business license was
obtained,He thinks the business should be closed down, An art gallery is not acceptable to the neighborhood.
He would like to see the original use of a grocery store at this
location,The public hearing was
closed,Commissioner Carlton questioned the statement about another 34 cars on
Cambridge.Ms, Binning explained the speaker assumed there could be another 34 cars, based on the March
23rd staff report prepared for the City Council meeting in 1994, A breakdown of the number of people for
the maximum seating capacity was given for a total of 68
people,Commissioner Carlton knew there was a procedure for reporting volume of sales in a business, She
asked whether there was a minimum amount and if the amount was less, did it need to be
reported,Ms. Binning stated there was a minimum business license fee which would apply toward revenues of
zero to a certain dollar amount. depending on the business category, Every year when an applicant
reapplies for a business license. the applicant states what the business revenues
are.Commissioner Carlton wanted to know about the parking requirements for this
use,Mr, Godlewski said because the use was a non-conforming situation, whatever parking has
been provided for the use is also non-conforming. No additional parking would be required than what is existing,
If it were a general commercial type business, five (5) per 1,000 would be a
typical retail requirement Chairman Bosch said the sales tax is a separate issue from the business license in how it is
reported
to the City,Commissioner Romero could see the concern on both sides, To move from a grocery store
to a lesser use of a bookstore with coffee. and now moving to a gallery/showroom, his concern is
with the coffee portion of the business, The gallery/showroom by itself would still be a non-conforming
use, but it would be much less than what has occurred in the past As a condition of approval,
he suggested eliminating the
coffee and baked goods,Commissioner Carlton asked about adding a condition to require a lease, and a
condition to require that shared parking at the
Fairbairn
Planning Commission Minutes April 5, 1999
Ms, Binning did not recommend a lease because the City would not want to be in a position of having to
review it. Any reference to a lease is discouraged because enforcing it would be difficult '
Mr. Godlewski stated there were provisions in the parking ordinance to allow shared parking, but it can not
be imposed on this application where the use already exists. It is there on a non-conforming basis,
To consider the shared parking would require an application for a conditional use
permit.Chairman Bosch said over the years things have changed in terms of the traffic and bike lane, He grew
up with a market at that location and he would like to see a market again, but he didn't think the
neighbors would like it. The Commission has a specific duty to look at an appeal to an action by the Director
of Community Development for a specific use of the property. Non-conforming and grandfathered
uses are the most difficult because the world changes so much, He asked if the Commission finds some
aspect of this request of a non-conforming use that is the same or more restrictive that does not include
the sale of groceries or food stuffs, what does that mean in terms of change of use in the future, Could
it ever go back to a grocery store
at that point Ms, Binning explained the way the code is structured is that over time, eventually it will
gef lesser and disappear because it would never revert back to a greater use. If coffee and food were
eliminated in order to make it a lesser use, then that could not be reinstituted, The new use would be the art
gallery and that would become the new standard, A grocery store would not be considered
for the property.Chairman Bosch thought it would be possible to continue a restricted level of commercial
utilization on the site, if it is the right one, He's somewhat leery of eliminating the grocery or foodstuffs altogether,
yet at the same time he appreciates the viewpoint that it's the potentially highly
successful sale of coffee/cappuccino that drives the problem on the street -- nof the art gallery or picture
framing business.Commissioner Carlton could not see the property reverting back to a grocery store because
of the economics, There is a real stigma atfached to the property because of the parking. The parking
issue wiil not
go away,The Commission talked about the conditions of approval and a six month review, It would be
prudent for the owner to provide proof from a third party that the business was open during the period
in question.But, the Commission takes testimony in good faith and some credibility must be given, It might
be over-reaching for land use purposes, They could approve the use for an art gallery/picture
framing business without the sale of coffee/cappuccino and baked goods, Business hours were discussed
and the Commission did not want to be too restricfive, Showings generally occur in the evenings or
on
weekends,MOTION Moved by Commissioner Bosch. seconded by Commissioner Romero to deny Appeal No,
456 regarding the Community Development Director's determination to approve a request for the changing of
a non-conforming use on the property located at 135 South Cambridge Streef. but find that to assure
that the new use is found to be of the same or more restrictive classification than that previously approved
by the City Council and through City Ordinance O,M.C, 17.38,030 on the property, the conditions
of approval stated in the letter of January 14, 1999 to Ms, Ellie North and Mr. Gary Mead, signed by
Jack McGee,Community Development Director, shall be modified
to state:1) The use shail be limited to that described within the letter and the attachments, except that use
for sale of coffee/cappuccino and packaged baked goods shall be discontinued and
not approved,
2) Delete,3) Delete first sentence, No meetings or congregating shall be allowed except as stated
above for showings
and
Planning Commission Minutes April 5, 1999
4) "in six months from the date of this approval, neighborhood problems are being created, the approval
of the remaining uses. art gallery/picture framing business, with accessory activities, including occasional
annual showings attended by approximately 20 persons and small jewelry workshops of 4 to 7 people,
shall be reconsidered. Neighborhood problems of loitering, noise and/or on-street parking,
blocking traffic flow or impinging upon public safety and access to private property. may upon this review
cause elimination of the approved
uses,5) City Ordinance (O,M.C, 17,08.050) allows this decision to be appealed to the City Council. An
appeal filing fee is
required,6) Delete coffee/cappuccino, The business may be operated by the proprietor and one (1)
employee,and shall have regular business hours not to exceed 9:30 a.m, to 5:00 p.m" seven (7) days a week, or
by
appointment.7) No expansion of the uses of the regular business hours (not including occasional/annual
showings and small jewelry workshops) shall be allowed beyond that stated in the approval and these
conditions,
AYES:
NOES:
ABSENT:Commissioners Bosch, Carlton,
Romero
None Commissioners Pruett, Smith MOTION
CARRIED Mr. Godlewski explained that the Commission's action can be appealed to the City
Council.RECESS - The Chairman recessed the meeting at 9:05 p.m.
RECONVENE - The meeting reconvened at 9:15 p,m,IN
RE:MISCELLANEOUS 3,
APPEAL NO, 458 (RE: CONDITIONAL USE PERMIT 2275-99) - DON AND KAJA DONIKOWSKI,APPELLANT
The
applicant is appealing the Zoning Administrator's decision to deny the proposed expansion of a small family
daycare home (6 or fewer children) to a large family daycare (between 6 to 14 children), This site is located
at 7916 East Horseshoe Trail.NOTE:
This project is categorically exempt from the provisions of the California Environmental Quality Act.
Chris
Carnes, Staff Planner, said the proposal is to expand an existing small family daycare cenfer to a large family
daycare center. Small family daycare centers are allowed by State law without City review, State law does
allow cifies to require a conditional use permit to expand to a large family daycare center. In Orange County
a large family daycare center can be up to 14 children, The applicant proposes to take care of up to
14 children between the hours of 7:00 a,m, and 6:00 p.m" Monday through Friday, The Zoning Administrator
denied the request for the conditional use permit on the grounds that the applicant's neighborhood
is not a typical, single family neighborhood, It is within a gated community with lengthy cui de
sacs, speed bumps on the street, and the streets are narrow, The community does not have parking or sidewalks
on one side of the private streets, At that time there were 10 residents who spoke in opposition to
the proposal. Staff had recommended three (3) conditions of approval. The one did require that prior to
operating the daycare center, the applicant would get a State license to operate a large family daycare center.
The State legislation on this matter requires that prior to opening a large family daycare center, the Fire
Department approves the use of the structure. The applicant would also have to comply with the City'
s Noise Ordinance in regards to outdoor operations, They have to maintain two (2) enclosed parking spaces
on the site. Prior to this meeting, people in opposition to the proposal have submitted another 73 petitions
requesting that the appeal be denied.5
Planning Commission Minutes April 5, 1999
The public hearing was opened.
Appellant. Don Donikowski. 7916 East Horseshoe Trail, said he and his wife are requesting to expand
their daycare business to care for after-school aged children. They have had their license for 3 1/2
years and the children are under 4 years of age, They don't use the common area or streets, They remain in
the yard and in the home, and the children are well mannered, He doesn't believe the neighbors can hear
the children, Those opposed to this expansion feels it will have a negative impact on every person
and property in Broadmore. He does not feel 12 or 14 more cars a day will impact the neighborhood,
The State encourages licensed, organized quality care for children, The State recognizes the children'
s needs and has very clear laws concerning the City's ability to deny daycare use permits, They conform
to the Stafe's requirements, the City's requirements. Social Service requirements, Fire requirements
and their own standards. State laws preclude City laws, Association rules and CC&R'
s,Commissioner Carlton asked if Mr. Donikowski ever received a copy of the CC&R's prior to close
of escrow, Is a gate code used when the people drop off their children, or do they call to gain entry.
Are there other small daycare facilities being operated in
Broadmore,Mr. Donikowski replied no. He knew there were CC&R's, but his intent was never to circumvent
the CC&R's, When they moved to the Broadmore community. they did not intend to open a
daycare business. There is no gate code and the parents are not given a card key. They stop at the gate and
push the 3-digit number to gain entry, Broadmore is a semi-secured neighborhood. To
his knowledge, there are no other daycare businesses
in their community,Commissioner Romero wanted to know how many adults were currently watching the
children, He was concerned with the two (2) foot fence in the back yard, The Commission cannot enforce the CC&
R's, but they will have jurisdiction
in the community.Mr. Donikowski responded one adult is looking after the six (6) children, He stays at home until 10:
00 a,m.and helps his wife. With the expansion, they will need one (1) more adult He didn't dispute
the height of the fence and a possibility of an accident However, the fence height
can be increased,Chairman Bosch thought a play yard needed to be enclosed by a minimum of a 48 inch high
fence or wall.Mr. Donikowski did not know of that requirement Social Services have checked their
premises and did not comment
on the fence,Nine (9) people spoke
aqainst the appeal:Tom McGinley,
626 Buttonbush Trail Bill Maloof,
7814 Lakeview Trail Gerald Wallin,
7623 Appaloosa Trail Richard Trittipo,
7920 Horseshoe Trail Harold Aspgren.
7920 Horseshoe Trail Betty Luhmann,
7910 Lakeview Trail Janet Mager,
7548 Twinleaf Trail Nicki
Klein, 7549 TwinleafTrail David Letourneau.
7733 Appaloosa Trail They were opposed to an expanded daycare center because of the noise when the
children are playing and cars parking on the wrong side of the street. The streets are very narrow with dead end
cui de sacs and emergency vehicles will not be able to gain access. The yard is too small for this
many chiidren. This type of business will affect the entire neighborhood. Property values will decrease and homes
will be hard to sell as a result of having a large daycare facility in the Broadmore community, The four (4)
foot fence is an issue. All of the residents will be responsible if a child is hurt; there are liability issues that
need to be addressed, Ninety-one percent (91%) of the people on Horseshoe Trail and
Buttonbush
Planning Commission Minutes April 5. 1999
most affected streets. signed petitions against the expanded daycare use, This is a private, gated
community of attached homes, zero lot lines and common walls.
Appellant's response
Mr. Oonikowski gave some pictures to the Commission that illustrate the size of the streets and his garage,
He concurs with the fence being questionable; a child could go over the fence, His back yard is 1,250
square feet They have put one of their cars in the garage, Many homes have sold in the Broadmore
community and he did not believe the daycare business has stopped the sale of homes,
The public hearing was closed,
Ms, Binning read what State law says about the City's ability to regulate large family daycare homes. The
daycare home needs to be in a residential zone, State law precludes that as long as the City can regulate
by local ordinance noise, spacing requirement of 300 feet. traffic control, parking, and residential zone,
then the permit shall be granted, Fencing is not an area where the City has a requirement for families of a
certain size have to have a certain height of fence. The City's ordinance does not mention anything about
traffic control. However, State law does say that although there are restrictions. it is not restricting the City
in any nuisance abatement action.
Chairman Bosch stat&d the Commission does not have the authority to do any1hing in this case other than
holding a hearing that has no value. The Commission does not have discretion in reviewing this
application for safety in terms of traffic, drop off of children. parking, or ADA accessibility requirements, He
asked what latitude does the Commission have relative to concerns about how the property is set up for
the use that is regulated by the State, and if conditions can be applied to mitigate the problems,
Ms. Binning said she was stuck with the language of the State code and she believed their reference to
any local ordinances regulating these uses is probably the opening that the legislature gave to the City to
actually address traffic and parking requirements. However, Orange has not done that
Chairman Bosch believes the existing daycare business is well managed; however, an expanded facility is
too much for the community. He is concerned about the safety of the children and there are liability
issues, He is not in favor of the increased size of the facility; it is wrong for the community,
The Commission did not know how to make a finding based on the City's ordinance. They felt the daycare
facility would be a detriment to the neighborhood. The State overrides the conditions of approval
attached to the planned community development.
MOTION
Moved by Commissioner Bosch. seconded by Commissioner Romero, to continue Appeal No, 458 for 30
days, to May 3, 1999, to allow staff to research case law and report back to the Commission with their
findings.
AYES:
NOES:
ABSENT:
Commissioners Bosch, Carlton, Romero
None
Commissioners Pruett, Smith MOTION CARRIED
IN RE:PUBLIC COMMENTS
Barbara DeNiro was frustrated with State law approving such an expanded daycare use in a private
community, She wanted to know how many other expanded daycare facilities were located in the City.
The public hearing is just a formality, State law needs to be changed,
7
Planning Commission Minutes April 5.1999
IN RE:ADJOURNMENT
Moved by Commissioner Bosch, seconded by Commissioner Carlton, to adjourn to a special joint study
session with the City Council to review the Capitallmprovemenl Program for the upcoming Fiscal Year, to
be held Tuesday, April 6, 1999 at 5:00 p,m, in the Weimer Room, Then, to adjourn to a meeting on
Monday, April 12, 1999 at 5:30 p,m, in the Weimer Room for a study session of the Planning Commission
relative to Culver Street options with regard to zoning and overlays in that residential district The meeting
adjourned at 10:55 p.m,
AYES:
NOES:
ABSENT:
Commissioners Bosch, Carlton, Romero
None
Commissioners Pruett, Smith MOTION CARRIED
sld
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