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2006 - September 6 Minutes Planning Commission City of Orange September 6, 2006 Monday - 7:00 p.m. PRESENT: ABSENT: STAFF PRESENT: Commissioners Bilodeau, Bonina, Imboden, and Steiner None. Ed Knight, Assistant Planning Director Gary Sheatz, Assistant City Attorney Mari Burke, Recording Secretary Presentation of Resolution No. PC 28-06 expressing appreciation to Ben Pruett and commending him for thirteen years of service on the Planning Commission. The resolution was read by Chair Bonina. Mr. Pruett expressed his appreciation for the recognition; stated it was a very rewarding experience and commended the City for the professionalism of their Staff including the Planning Department and all the other departments that support the issues that come before the Planning Commission i.e. Public Works, Police, Fire and the City Attorney's office. Commission Reorganization: Election a/Vice-Chairperson Commissioner Bilodeau nominated Commissioner Imboden. SECOND: AYES: NOES: ABSTAIN: ABSENT: INRE: Commissioner Steiner Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. PUBLIC PARTICIPATION: Sergio Sendowskv. address on file stated he was present to scold the Planning Department. Approximately six months ago he started having problems with a mobile car wash operation in the parking lot of the industrial complex behind his residence. Mr. Sendowsky came into the office and spoke with someone in the Planning Department and was told they would get back with him. He came back into the office two weeks later and was told by Planning Department Staff: . The operation should only be there part time (perhaps no more than one day per week). . There should be mitigation measures in place to reclaim water. . There shouldn't be noise throughout the day. . The problem would be referred to Code Enforcement. Mr. Sendowsky does not believe local Code is being enforced and he would like Planning Commission Minutes September 6, 2006 assistance to obtain resolution. Leslie Aranda Roseberry, Planning Manager responded that Planning Staff has looked into this matter and she has received correspondence from the Code Enforcement Officer. Code Enforcement believes it is a mobile carwash and that the only thing that could be regulated would be the compressor to ensure it does not exceed the decibel readings for noise limits. Further Ms. Roseberry stated there aren't zoning specifics for this type of operation; however, there is a policy and from all observations it does meet the intent of the policy. Assistant City Attorney Gary Sheatz interjected that Mr. Knight should meet with Mr. Sendowsky to deal with this issue. Mr. Sendowsky asked when Mr. Knight would contact him. Mr. Knight agreed to contact Mr. Sendowsky before the end of the week. IN RE: ITEMS TO BE CONTINUED OR WITHDRAWN: None. IN RE: CONSENT CALENDAR: (1) APPROVAL OF THE MINUTES FROM AUGUST 7, 2006. Chair Bonina made a motion to approve the consent calendar. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Imboden Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. IN RE: CONTINUED HEARINGS: None. IN RE: NEW BUSINESS: (2) CONDITIONAL USE PERMIT NO. 2591-06 - FROGS BREATH CHEESE STORE (PRISCILLA MADRID A proposal to allow an Alcoholic Beverage Control Type 42 (On-Sale Beer and Wine for Public Premises) License so as to allow a wine and beer tasting room at an existing cheese and wine shop. The site is located at 143 N. Glassell Street. NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 (Class I - Page 2 of 20 Pages Planning Commission Minutes September 6, 2006 Existing Facilities). RECOMMENDED ACTION: Adopt Resolution No. PC 36-06 approving Conditional Use Permit No. 259l-06 A project overview was provided by Senior Mr. Chris Carnes during which he highlighted: . The Staff Review Committee has reviewed the proposal and recommended approval. . There are 31 Conditions of Approval. . The applicant has responded in writing to the Conditions of Approval. A package including a cover memo from City Staff and the applicant's letter was provided to the Commission. Commissioner Bilodeau asked for clarification of the size of the clear path required from the front portion of the store through the wine tasting area to the rear exit ofthe building. Mr. Carnes responded that 44 inches is required by Fire Code. Commissioner Steiner stated in the letter from the applicant there is reference made to communication with a representative from the Fire Department where the gate and pathway was acceptable at 32". Commissioner Steiner asked Mr. Carnes if this was inaccurate. Mr. Carnes responded there is a specific Code section that applies to this and any emergency access area that has furnishings on either side of it requires 44". Chair Bonina asked if the 44" is applicable to the entire area or just the door area. Mr. Carnes responded if the wine tasting area was clear of everything then the applicant would only have to designate a minimum of 36"; however, since there are tables and chairs on both sides ofthe access area, 44" is the minimum requirement. Chair Bonina asked if the applicant would be dispensing solely wine. Mr. Carnes responded, "No, the applicant is proposing beer tasting as well." Chair Bonina asked for clarification that the license restriction does not limit the number of glasses, only the portion size in the glass. Mr. Carnes confirmed that was accurate. Commissioner Steiner stated with respect to Condition 10 it seems to suggest wine tasting shall be conducted as a scheduled event and it could not be advertised. Commissioner Steiner asked Staff "how could the applicant make it known to potential attendees if they couldn't disseminate the information?" Mr. Carnes stated the intent was that the event is not to be conducted or advertised as a walk in service such as by placing a neon sign in the rear of the store. Commission Steiner suggested that the phrase "cannot be advertised" is clarified so the applicant is not prohibited from promotion of a scheduled event. Chair Bonina requested that Sgt. Miller, Orange Police Department address the applicable Conditions that were not already addressed. Sgt. Miller started his review with Condition 15 stating the intent was to ensure if the Page 3 of 20 Pages Planning Commission Minutes September 6, 2006 business was ever sold, the new operators would transact business in the same manner as the applicant is proposing, and not turn it into a bar. Sgt. Miller stated that after additional consideration it was decided the condition might be overly restrictive so he proposed retraction of it as written and replacement with the following three restrictions: (I) At any time the license is sold or possession is transferred to a person, firm or entity other than the applicant to which the CUP was issued, the City shall review the operations of the new owner or operator to ensure the original Conditions of Approval are complied with. (2) The applicant shall execute an agreement with the City to give written notice to the City at any time the license is sold, otherwise transferred to another person, firm or entity, other than the applicant. (3) Conversion of the subject tenant space to an on-sale beer and wine establishment requires submittal for a new Conditional Use Permit. The Conditional Use Permit shall apply only to the wine tasting use described herein. Sgt. Miller agreed that Condition 21 wording as it is written would restrict any indoor paging or amplification device. The Police Department does not have a problem with the revised wording proposed by the applicant: "Outdoor amplification systems, loudspeakers and paging devices shall not be used outside the licensed premises. Interior amplification devices for the purpose of background music or the paging of employees or customers in the interior shall not be prohibited on the licensed premises." Sgt. Miller indicated that the Police Department generally does not make exceptions with regard to signage; however, in looking at Condition 24, since the name of the business "Frogs Breath Cheese" would not suggest to the general public that the business sells any type of alcohol or that they do wine tasting, they have agreed to allow the (2) chalkboard signs in the windows facing Glassell. (The signs are approximately 3 'x3'.) Sgt. Miller stated that Condition 28 is a standard restriction imposed on all businesses; however, under the circumstances it seems reasonable that an employee would taste wine to enable them to offer feedback to a potential customer. Consequently, the Police Department has no problem with the proposed wording provided by the applicant: "Employees shall be prohibited from consuming alcoholic beverages while on duty except for educational or employee training purposes coordinated by management." Chair Bonina asked Sgt. Miller to provide detail about the number of licenses and crime stats. Sgt. Miller responded the census tract has (10) on sale licenses with (5) licenses being allowed; for off sale there are (4) licenses existing in the tract with (3) allowed. With a Type 20 license there is an over concentration of (1) establishment; however, considering the area, this is not a problem. Average crime is 299 and crime in the area is 286. Commissioner Steiner questioned how Condition 15 could be enforced, with respect to the transferability of the license. Assistant City Attorney Gary Sheatz responded that he Page 4 of20 Pages Planning Commission Minutes September 6, 2006 had read the applicant's commentary and the way the applicant had characterized "an unconstitutional taking of a license." Mr. Sheatz indicated that by law you couldn't take a license; however, once the entitlement is issued you do hold a land use right and that is something that could be taken away. Relating to Sgt. Miller's proposed rewording (Item I), Mr. Sheatz interpreted that to mean that the City would be notified and the City could look into any subsequent owner of the business, which is fine; however, if the City didn't like that subsequent owner/purchaser, there isn't much they could do about it under the entitlement. While it's nice to have notice and an understanding of who is coming into the business Mr. Sheatz was of the opinion the City could not restrict the transfer other then through customary enforcement actions pursuant to a violation i.e. a penal Code action, an ABC revocation, etc. Chair Bonina asked if there were certain criteria and a process that the ABC license authority uses to determine transferability to a new applicant. Mr. Sheatz responded affirmatively and that it wouldn't necessarily be from a City standpoint. Mr. Sheatz suggested separation of the boxes: the ABC license and what the City is dealing with which is the land use entitlement. Sgt. Miller added that unless the new owner has a problematic history with ABC then the transfer is usually done. Chair Bonina asked if the ABC contacts the City to determine if there were any problems. Sgt. Miller responded "not to his knowledge." Ms. Roseberry interjected that ABC does contact the City solely for zoning verification. Commissioner Steiner asked if the non-transferability condition existed on the Conditional Use Permit and the ABC contacted the City regarding transferability would City Staff relay that the license is not transferable and be able to capitalize on the imposition of the condition. Assistant Planning Director Ed Knight interjected that if you look at the type of license this is and the conditions under which it is occurring, one of the concerns City Staff had with this project was that under certain circumstances a Type 42 license could be construed as a bar and the City would have a land use concern with that because a bar is not a permitted use in that particular zoning district. For this reason Mr. Knight stated extra steps were taken by City Staff to provide assurances that if a transfer were to take place the new business ownership would maintain the same type use and could not morph it into a bar or some other type of use which would be inconsistent with the zoning land use. Chair Bonina asked where this safeguard exists. Mr. Knight responded it is in the ABC license and there are two findings in the Resolution: (l) (Reference Section I-Findings, Finding #6) "With limitations in place by the Alcoholic Beverage Control defining and restricting the proposed ABC License to wine tasting only, the use is not considered a bar or tavern, therefore, is not inconsistent with the land use requirements of the C-l Zoning District." (2) (Reference Section I-Findings, Finding #7) "Further, ABC Licensing limitations assure that the license cannot be transferred in the future or create a scenario where the use could become a bar or tavern." Page 5 of 20 Pages Planning Commission Minutes September 6, 2006 Chair Bonina reiterated the language in the license itself states that it is for wine tasting only. Commissioner Steiner asked Sgt. Miller in his professional opinion how soon before an establishment closes should the serving of alcohol terminate. Sgt. Miller responded in a traditional bar an hour is good but given the manner in which this business will operate he didn't think a half-hour was unreasonable. Commissioner Steiner stated he required clarification on the whole advertising issue (reference the applicant's response to Condition #24) and asked Sgt. Miller for his opinion on this matter. Sgt. Miller responded there is a standard boilerplate for signage and the intent is to prevent the proliferation of signs offering alcohol, especially in the downtown area; however, based on discussions with colleagues and the name of the business, an exception was made. Sgt. Miller elaborated that what the Police Department would have a problem with is a large exterior sign offering alcohol for sale. Keeping in mind this was an exception; Sgt. Miller stated the Police Department would like to hold to the (2) sign limitation. The applicant, Priscilla Madrid indicated a lot of the issues have been resolved so she wanted to focus on some qf the issues that still appeared to be outstanding. The open issues in her mind were as follows: Condition #10: the concern this was to address was for the management to control when the tastings would take place. Ms. Madrid's opinion is that regardless of whether the tastings are by reservations only or on a walk in basis, the control is in place as a customer will not be able to walk in and pour their own drink. Condition #12: Ms. Madrid was not aware of the specific fire Code that stipulates the size of the access gate and asked for the Code number so she can reference it. Mr. Carnes was asked to provide this information. Condition #l5: Ms. Madrid indicated she thought there was some confusion with respect to the licensing issue. Specifically, because she has an off premise license for the sale of beer and wine, generally they won't give you another license in the same building. For this reason in order to permit wine tastings, what is done is a Type 42 is issued (with limitations). In order to change anything about the wine tasting provisions in the Type 42 license the applicant would have to go before the ABC again and file for a modification of the license. If she did that she would have to file another Conditional Use Permit application with the City. Ms. Madrid's opinion was there is therefore no risk the business would ever be turned into a bar or tavern without the City's consent. Condition #24: the way the condition is worded it prohibits the applicant from having wine racks visible from the outside. Based on the building configuration and the location of the windows, there is no way to be compliant with this condition as written. Regarding the signs, she would like to have the flexibility of having an interior sign that states when the wine tastings are scheduled; however, it would be visible from the Page 6 of 20 Pages Planning Commission Minutes September 6, 2006 outside because you can see all the way through to the rear of the store. Chair Bonina asked the applicant "What are your hours of operation?". Ms. Madrid responded they are currently open Tuesday through Saturday from 10 a.m. to 6 p.m. and her plan is to extend the hours to 8 p.m. She is also open on Sunday from 11 a.m. to 4 p.m. and she may do an afternoon tasting on Sunday, which would mean she would extend the Sunday closing time to 6 p.m. Commissioner Steiner asked the applicant if she currently has interior displays of alcoholic beverages that are clearly visible to the exterior of the store. Ms. Madrid responded that she does. Understanding the concerns of law enforcement with regard to potential advertising of alcoholic beverages, Commissioner Steiner asked the applicant what she would suggest is appropriate? Ms. Madrid responded that the way the condition is presently stated it does not incorporate the acquiescence of the Police Department to the two signs she has presently. It should be reworded to allow for those two signs in front and it needs to be reworded to state interior signage intended to be seen by customers on the interior is not a violation of this condition and further, wine racks and displays of alcoholic beverages on the interior of the store which may be visible from the outside shall not constitute a violation of this condition. Chair Bonina stated he thought the Commission understood the intent and he wasn't necessarily disagreeing with it so if they were all in agreement a request would be made of Staff to meet with the applicant to reword the condition. Ms. Roseberry stated that whatever the motion would be (if it was to approve the request), it would need to state the specific intent ofthe condition. Commission Steiner stated he thought there were a number of changes required so perhaps the Conditions should be reworked. Commissioner Bilodeau asked the applicant if she was opposed to any of the changes proposed by the Police Department. Ms. Madrid responded she was still very uncomfortable with the language proposed for Condition #15 as she thought it seemed unnecessary given the way the license has been issued by the ABC. Further, Ms. Madrid stated if she did ever decide to sell the business, the disclosure of the conditions might make a buyer reluctant. Commissioner Bilodeau suggested that continuing the project would enable Staff to revise the condition, making it more acceptable to the applicant. Commissioner Bilodeau stated that what the applicant has said with respect to Condition #24 is reasonable and he suggested that perhaps it would be more appropriate to state in the condition that the signage would need to be approved by the Director of Planning or her designee and address the clause that references visibility of the displays. Page 7 of 20 Pages Planning Commission Minutes September 6, 2006 Commissioner Imboden noted that Condition #26 refers to the hours of operation and commented that since the applicant has indicated she would be extending her operating hours, the condition should perhaps be reworded so as to not limit the wine tastings to the initial stated hours of operation. The applicant agreed and stated she didn't interpret the condition as limiting the tastings to the stated hours of operation or she would have addressed it, as her intent is to extend the hours and consequently extend the availability of tastings proportionately. Chair Bonina stated he wasn't sure the condition would even require the hours of operation to be stated. Chair Bonina commented that with all due respect to the comments of Sgt. Miller, what he has read in the ABC document and the explanation from the applicant, which he believed to be very accurate, his opinion was Condition #15 may not be needed. Public input was provided as follows: Lisa Ackerman. address on file stated she and her mother own A & P Collectibles just a couple of doors down from the Frog's Breath and she wanted to compliment Ms. Madrid for this undertaking and she also wanted to thank the City for doing their due diligence to ensure the City of Orange maintains the wonderful environment of Old Towne. They have owned their business for 26 years and have obviously seen many changes in the Plaza area. She complimented Ms. Madrid on the type of business as it is a real asset to the area and brings the kind of customer they are looking for. While there are some businesses that appeal to the younger clientele, Frog's Breath perhaps attracts a clientele that is a little more discretionary with their drinking. Ms. Ackerman stated she herself enjoys wine tasting and doesn't have any problems with this business. The floor plan is very open so there are no impediments there. Ms. Ackerman thanked the City for making the concession to allow the employees of Frog's Breath to do tastings as she is a firm believer in the value of education. Patrick Austin. address on file stated he has been a resident of Orange for 19 years so he considers Orange his hometown. He too has seen a lot of changes in the district that he believes are beneficial to the City. He is a regular customer of Frog's Breath and has gotten to know the Staff a little bit. The people there are in love with food and wine and really enjoy working there. He stated he thought this business was a real gem, somewhat unique and exactly the type of upbeat business to attract people to the Old Towne area. He has no problems with the business and is hopeful the City can support them in what they are trying to do so they can continue to contribute to downtown Orange. Commissioner Steiner stated he would like to echo the comments made by Chair Bonina with respect to Condition #15, as he believes if the City were to try to enforce the condition it could lead to potential civil litigation against the City for Fifth Amendment Issues. Commissioner Steiner stated that if Staff revises Condition #10 they might consider the language, "The wine tastings shall be conducted as scheduled events and attended by Page 8 of 20 Pages Planning Commission Minutes September 6, 2006 reservation only, and it shall not be advertised and conducted as a walk-in service." Commissioner Steiner explained that by putting it in the conjunctive format, only if the advertising and conducting the tastings as a walk in service were done together would it become a violation. Chair Bonina asked Commissioner Steiner if he had an objection to striking Condition #10 altogether. Commissioner Steiner responded that he agreed with Commissioner Bilodeau that keeping a very serious restraint on this type of business is legitimate because of the potential to evolve into something less desirable than what is there now. For that reason he deferred to a further analysis by Staff or Mr. Sheatz as to whether it would be necessary. Mr. Sheatz stated in the Staff Report it is disjunctive and the Condition listed in the Resolution makes it conjunctive. Mr. Sheatz stated it would be dependent on where the Commission's comfort level is i.e. if the Commission would rather not have a sandwich board or white board type sign (not necessarily outside but visible from the window) that invites customers to come in and have a glass of wine or tasting then the way to address it would be take the suggestion of Commissioner Steiner and make it a conjunctive condition. Chair Bonina stated there was also discussion on Condition #28 and he asked for feedback from the Commissioners on this Condition. All three Commissioners supported modification of this condition as proposed by the applicant. Commissioner Steiner suggested language that was not dissimilar from the language used for customer tastings i.e. "individual servings of alcoholic beverages shall not exceed two ounces per glass or container, etc. (see Attachment No.6, Petition for Conditional License). Commissioner Imboden stated that he thought depending on how they are interpreted, Condition #10 and Condition #30 may be a little contradictory i.e. in one situation it needs to be a scheduled event (Condition #10) and then Condition #30 states there shall be no special promotional events held on the property. He questioned, if a group of 50 customers come in to taste wine on the same evening, does that constitute a special promotional event? He added that we may just need to look at the definition of a special promotional event and Chair Bonina asked Staff to provide the definition. Mr. Knight stated if it was a tasting for 50 people then it would still be just classified as wine tasting, rather than if it was something beyond what would be normal and usual for this type of CUP i.e. an Oktoberfest with a band. Commissioner Imboden stated he was still troubled with this and Commission Steiner suggested the first sentence of Condition #30 be rewritten as follows: "There shall be no special promotional events held on the property, outside the usage intended by this permit, unless a written request for such is received and approved by the City of Orange Community Development Director and the Police Department's Vice Unit at least one week in advance." Page 9 of 20 Pages Planning Commission Minutes September 6, 2006 Mr. Knight stated he didn't have a problem with the additional language and added the Zoning Code actually has a section on special promotional permits and the requirement to obtain an additional permit for those. Commissioner Bilodeau stated that he thought Condition #10 was too restrictive and he would not be opposed to striking it in its entirety or completing rewriting it so as to not inhibit the success of this business. Commissioner Steiner interjected that he didn't anticipate an objection; however, he thought Staff should obtain concurrence with the Police Department before striking it. Commissioner Steiner suggested making a motion to return on a date agreeable with the applicant and Staff with the corrections as detailed and any further clarifications deemed necessary. Ms. Roseberry asked it the direction was clear enough or if Commissioner Steiner wanted to restate it so Staff could prepare a new Resolution. Commissioner Steiner agreed a new Resolution was required; however, the minutes would be used by Staff to prepare it. Ms. Roseberry indicated it would have to be continued to a date certain or it would need to be advertised again. Chair Bonina acknowledged the Commission would receive the revised Resolution in a later timeframe than usual; however, he suggested 18 September 06 as the next review date. The applicant confirmed this date was acceptable to her. Commissioner Steiner made a motion to continue this project until 18 September 06 with the understanding he will not be in attendance at that meeting. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Bilodeau Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. (3) CONDITIONAL USE PERMIT NO. 2593-06 - TROPI JUGOS, INC. A proposal to allow an Alcoholic Beverage Control Type 41 (On-Sale Beer and wine for a bona Fide Public Eating Establishment) license for an existing Mexican restaurant and make a finding of Public Convenience or Necessity. The site is located at 4509 East Chapman Avenue. NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 (Class I - Existing Facilities). RECOMMENDED ACTION: Adopt Resolution No. PC 38-06 approving Conditional Use Permit No. 2593-06 Planning Manager Leslie Aranda Roseberry provided a project overview consistent with Page 10 of 20 Pages Planning Commission Minutes September 6, 2006 the Staff Report. The applicant (Mr. Ramirez) advised that he and his wife have been operating this business for approximately three (3) years and for ten (10) years prior to that with another partner. Chair Bonina asked if they had read through the conditions and if they were In agreement. The applicant responded affirmatively. Public input was provided as follows: David Cortez. address on file stated he had lived in his current residence most of his life and he was there to express concerns with the quantity of off sale licenses. He summarized his finding was there are ten (10) off sale licenses and added that the census tract maps have not been updated. He pointed out that many of the business names have changed. Mr. Cortez stated his residence is in the unincorporated area off Pearl Street and they have formed a community group that is concerned with graffiti, crime, parking and the typical problems that happen in a community. Mr. Cortez provided photographs of Tropi Jugos highlighting: . the window coverings . the graffiti on the trash dumpster . the graffiti on the rear door of the building Mr. Cortez indicated the community group is looking for cooperation from the management of the shopping center and he pointed out there are also issues with shopping carts. Mr. Cortez does not believe there will be any benefit to serving alcohol in the subject establishment. Max Amaro. address on file stated he has been living in the same residence for eight (8) years and he belongs to a small group of people working with the County to try to improve the area. Mr. Amaro stated: . He would like to oppose the Conditional Use Permit, as he believes it will create more problems in the area. . He believes they already have too many places in the area where alcohol is sold. . There is a bus stop on the corner where children go to take the bus to/from school. . The restaurant does not have tinted windows. . There is a community center and grammar school very close to this restaurant. . There is a restaurant on the street with a 7-11 store that creates a problem with traffic. . It has become a hangout for people that don't have ajob. . There is a lot of trash around the establishment. Page II of 20 Pages Planning Commission Minutes September 6, 2006 . It will create a problem with parking. . There is a gang and graffiti problem on Pearl Street which is right behind the establishment. Their community group has met with the Sheriffs Department about it. . There is a residential area behind the restaurant. Mai Ho. address on file stated: . She lives across the street from the restaurant. . She was at the meeting to protest the Conditional Use Permit, as she is concerned about the community. . She is a member of the El Modena Community Group. . There are two grammar schools in the vicinity and a community center where the youth have activities after school and during the summertime. . There is a day care center in the area. . There are two other schools and a church in the area. . There is pedestrian traffic created by the schools and the church that will be affected. . This will be the second business selling alcohol by the same property owner. . There is no public restroom in the community. . There are many day laborers at Tropi Jugos. . The room behind the diner is currently unlocked and is used as a bathroom. This creates a public nuisance. . There are many problems in the shopping center area: loitering on the property, littering, graffiti (not cleaned up within 72 hours), employees from the restaurant have been seen leaving trash on the trash bin overnight, cars are parked overnight in the parking lot, loud music is heard from the cars in the parking lot, day laborer hiring occurs daily. . There are illegal boarding houses in the neighborhood. . The Sheriff Department and the Orange Police Department are both called for enforcement. In conclusion Ms. Ho stated she is concerned about the community and she asked the Commission to please help keep the community safe. As it was mentioned that the census map is not accurate, Chair Bonina asked Staff what the frequency is for updating them. Ms. Roseberry responded they are generally updated as new licenses are approved; however, there are a lot of licenses that have not had Conditional Use Permits. Ms. Roseberry pointed out that they look at the census tract in the vicinity of the proposal and they won't jump to a couple of census tracts away as that would not be pertinent to the discussion. Chair Bonina asked Ms. Roseberry if she was aware of the existence of a day care center in the immediate area. Ms. Roseberry responded she was aware of one; however, she couldn't recall if it was approved or the application dropped out. Page 12 of 20 Pages Planning Commission Minutes September 6, 2006 Commissioner Steiner asked for clarification that there could be alcohol establishments in the immediate proximity to the location being discussed, that aren't in the census tract being considered. Ms. Roseberry responded affirmatively and elaborated that what they are looking at is whether or not the census tract is over concentrated. If it's over concentrated and the Commission chooses to approve the Conditional Use Permit then there is a requirement to make a finding of public convenience or necessity. Since this tract is not over concentrated that is not a part of this application. Ms. Roseberry stated in theory if someone is right on the edge of a census tract and next to one or more other census tracts there could be more establishments. She added that they are looking at the census tracts for the concentration and then the distances are looked at for sensitive land uses that cross census tracts. Generally the guideline is approximately 600 feet. Commissioner Steiner asked if there is a school 200 yards away would it be identified? Ms. Roseberry responded affirmatively. Commissioner Steiner then asked if there were 10 liquor stores across the street in a different census tract would those be identified? Ms. Roseberry responded you would see them on the map but it wouldn't be part of whether or not you would have to make a finding for public convenience or necessity. Mr. Ramirez stated: . Before they applied for the license they hired an investigator that checked the distances to the schools and church and advised them what the law requires to obtain an ABC license. . He spoke with a Beverage Control Officer in Santa Ana who checked on the location a couple of times. . He tried to speak with Mr. Cortez in person to offer cooperation in taking care of whatever is needed from him. . He will try to keep the area nice and clean. . He has another location in the City of Anaheim that had similar experiences and now everything is working fine. He would like to do the same in the City of Orange. . He wants a safe area as the public does. His family works there and he wants them safe. Commissioner Bilodeau asked Mr. Ramirez asked how he will comply with Condition #19 which states the windows shall not be covered in any way when the shades are there obviously to block the afternoon sun. Mr. Ramirez responded they are there for the sun and he will cooperate with whatever is needed. Commissioner Imboden stated there are a group of citizens in the community that are concerned about their community that have made several comments about trash and other practices. He asked Mr. Ramirez what assurances the Commission has that these issues will be taken care of and the Conditions of Approval will be met. Mr. Imboden indicated it would be difficult for him to approve this application when there is already an indication the Conditions are not being met i.e. the public has produced photographs of Page 13 of 20 Pages Planning Commission Minutes September 6, 2006 graffiti and trash on the premises which have not been addressed. Mr. Ramirez responded that he too has seen trash and he has met with the maintenance staff and they will take care of it. He stated he will continue to pick up the trash around his restaurant each morning and if the City calls him for any reason he will take care of it as he would like to cooperate. Commissioner Imboden told Mr. Ramirez he was concerned about the reactive nature versus being proactive and taking care of these issues, which are his responsibility. Mr. Ramirez was shown the photographs provided by Mr. Cortez and asked if the graffiti had been removed. Mr. Ramirez responded that he would contact the maintenance company and tell them the Commission doesn't want that on his business. Chair Bonina asked how operationally a customer orders and receives food in the restaurant. Mr. Ramirez responded that the customers are seated, given a menu and a server takes the order and delivers the food to the table. In some cases telephone orders are placed and food is taken out. Commissioner Steiner stated he doesn't doubt the applicant's sincerity; however, it is not a situation where City officials or citizens shouldn't have to chase after problems that mayor may not develop in the area and then the applicant would respond. He agreed with the comments made by Commissioner Imboden with respect to the need to proactively address the issues and concluded that he has a number of concerns with the project. Commissioner Bilodeau noted the receipt of a crime log that appeared to be a record of Orange Police Department activity for the location and asked if a similar log was available from the Sheriffs Department for the unincorporated area, which is directly adjacent to the facility. Commissioner Bilodeau indicated that this information would have a lot of bearing on whether he would want to approve the application or not. Ms. Roseberry apologized that she didn't know if it was available. Commissioner Bilodeau stated that since it is not known if the adj acent area is a high crime area he was not comfortable supporting the application. Commissioner Imboden stated that he shared agreement with most of the comments made by his fellow Commissioners; however, he didn't feel comfortable making a decision solely on the number of existing permits and the crime statistics, as zoning defines over- concentration. He stated that over saturation needs to be measured on it's own merit and he certainly didn't want to deter the business owners of Orange from making police reports and reporting crimes for fear of putting themselves in a high crime area. Commissioner Imboden stated they should be considered but not used as the sole basis for approval or denial of an application. He stated he was quite concerned that the application has conditions in it that are already not being met and he would like to see the issues addressed with all responsible parties. Chair Bonina shared the collective concerns and stated the most compelling issue for him Page 14 of20 Pages Planning Commission Minutes September 6, 2006 was what the community has told the Commission. Chair Bonina made a motion to deny Conditional Use Permit 2593-06. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Steiner Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. Chair Bonina notified the applicant they have an opportunity to discuss the denial with the Planning Department and invited them to contact Mr. Knight regarding the appeal process. (4) CONDITIONAL USE PERMIT NO. 2595-06 - ROYAL STREET COMMUNICATIONS AT FIRST ASSEMBLY OF GOD OF ORANGE A proposal to co-locate three new antennas onto an existing non-stealth wireless communication facility support structure (monopole) including the installation of new aboveground support equipment. The site is located at 2910 North Santiago Blvd. NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15303 (Class 3 - New Construction or Conversion of Small Structures). RECOMMENDED ACTION: Adopt Resolution No. 37-06 approving Conditional Use Permit No. 2595-06 Contract Staff Ms. Anne Fox provided a project overview consistent with the Staff Report and advised that the applicant wished to speak with the Commission regarding at least one of the proposed conditions. Ms. Fox highlighted that the existing monopole was done prior to the ordinance; however, Staff was very pleased that many site amenities will occur with this application. Chair Bonina asked Ms. Fox if the introduction of the new equipment impacted any parking. Ms. Fox responded it did not. Chair Bonina asked if this is being proposed as a non-stealth installation. Ms. Fox responded affirmatively. Commissioner Imboden indicated that this pole was brought into existence prior to the requirement to obtain a Conditional Use Permit and asked if the Commission were to Page 15 of20 Pages Planning Commission Minutes September 6, 2006 grant the proposed Conditional Use Permit does it encompass the existing use or is it granted specifically for the Royal Street requirement. Ms. Fox responded the Conditional Use Permit is being granted for a co-location, not the original monopole itself. Commissioner Bilodeau stated he was familiar with the location and asked what landscaping is being proposed. Ms. Fox responded this has been discussed with the Community Service Division, as this project did not go before the Design Review Committee. Ms. Fox stated there are shrubs and l5-gallon trees and the amount of landscaping being proposed has been deemed appropriate to the space. Commissioner Bilodeau stated Royal Street Communications has had other projects that have gone to the Design Review Committee and not the Planning Commission and he asked for information about distinction as to why some come to the Planning Commission and some don't. Ms. Roseberry responded that the ordinance is quite specific about the routing of the types of applications and there is a matrix the Planners follow. Commissioner Bilodeau stated that due to the proximity of its location on the freeway, this pole gets a lot of visibility and he asked if there was any possibility of making it a palm tree. Ms. Fox responded that the applicant does not own the pole; the pole and the existing antennas were installed prior to the ordinance. Ms. Fox stated the applicant is accommodating some of the changes requested by Staff because they did have control over them i.e. the landscaping and the number of antennas; however, it is her belief they have limitations. The applicant's representative, Jason Hadley stated they tried to work with Staff to make the site look better and minimize the visual impacts. Mr. Hadley requested an amendment to Condition #8 to have the cabling on the outside (on the east side) of the pole going up to the antennas. The reason he cited for this request was the current carrier told Royal Street if their cabling were inside the pole it would eliminate future expansion capability for them. Mr. Hadley offered assurances the cabling will be painted to match the pole and it will be a smaller diameter. Chair Bonina asked who owned the pole. Mr. Hadley responded it is owned by T-Mobile. Chair Bonina asked if T-Mobile ground leases from the church. Mr. Hadley responded affirmatively and indicated Royal Street also entered into a separate lease with the property owner for some ground space and they will be entering into a lease with T- Mobile to install the antennas on their pole. Commissioner Steiner asked what the cabling would look like. Mr. Hadley responded there would be six (6) of them and they will be 7/8" in diameter, running from the base to the height of their antennas (approximately 40'-45' high). Page 16 of 20 Pages Planning Commission Minutes September 6, 2006 Chair Bonina asked what opportunities the applicant could see to improve the appearance of the site. Mr. Hadley responded it comes down to the expense and the older poles don't have a support structure under them to install branches. For this reason the pole would need to be removed and a bigger foundation to support the loads would be required. His belief was the cost would be prohibitive to Royal Street and it would be more economically feasible to go to another site and do a new install. Chair Bonina asked what reaction Royal Street would have if the Planning Commission took the position that they wanted a stealth installation. Mr. Hadley responded it would kill the site for them. Commissioner Bilodeau stated this particular site is the gateway to Orange on Santa Ana Canyon Road and the existing facility is not visually appealing. He therefore encouraged the applicant to work with T-Mobile to dress it up and stated he could not support the cabling being on the outside. Commissioner Imboden agreed with almost everything Commissioner Bilodeau stated and added that he was troubled the cables were proposed to be placed on the outside of the pole since that type of installation doesn't meet the ordinance. Furthermore, the cables will face view homes and he didn't think the proposal would make the site as visually appealing as possible. For those reasons he would not approve the proposal as presented. Commissioner Steiner stated he respectfully disagreed with the statements made by his fellow Commissioners and he was prepared to accept the applicant's representations that modifications to the structural integrity are not feasible. He felt that the response to his inquiry regarding the cabling satisfied his concerns regarding the aesthetics. Commissioner Steiner made a motion to approve the Resolution as worded; however, no second was offered. Chair made a motion to continue the project to give the applicant an opportunity to take the project back and work with Staff to enhance the site. Mr. Sheatz stated he understood the desire of the Commission to want something that looks better; however, from a legal standpoint the entitlement is only for the co-location and the applicant has expressed that doing anything more than that would more than likely kill the project. For this reason, rather than continuing the matter Mr. Sheatz encouraged the Commission to call the applicant up and inquire if the applicant would consent to a continuance with the objective being to take the project back and work it further or would that be a waste of time. If there is an issue with taking a bad situation and making it worse as expressed by Commissioner Imboden and there would be nothing further to be gained, then another option offered by Mr. Sheatz was to deny the project and move on. Page 17 of 20 Pages Planning Commission Minutes September 6, 2006 Chair Bonina stated that if the motion on the table did not move forward then they would bring the applicant back as suggested by Mr. Sheatz. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Imboden Commissioners Bonina, Bilodeau, Imboden Commissioner Steiner None None MOTION CARRIED. Chair Bonina stated the continuance was approved to a date uncertain. (5) ZONE CHANGE NO. 1242-06 - CITY OF ORANGE A request to amend sections 17.02.010 and 17.02.020 of the City of Orange Municipal Code to require all land uses, and all related permits, licenses or other instruments of authority for the erection or locating of any building, structure or installation or the permitting of any land use to be consistent with all federal, state and local laws NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15305 (Class 5 - Exemption-Minor Alterations to Land Use Limitation) because it is a minor alteration to land use limitation that does not result in any change to land use or density. The proposed modification to the zoning ordinance merely adds text that requires all approved land uses, permits, licenses and other instruments approved and/or issued by the City for land uses to be consistent with federal, state and local laws. RECOMMENDED ACTION: Adopt Resolution No. PC 40-06 recommending to the City Council approval of Ordinance No. 14-06 Assistant City Attorney Gary Sheatz provided a project overview and summarized the overview by stating the proposal is to modify the Zoning Code to require all land uses and all permits and all entitlements that the City would issue for land uses to be consistent with State and local law. Examples cited were consistent with those listed in the Staff Report. Mr. Sheatz stated the conflict as it exists now is one where there would be a situation if the Commission entitled or permitted a medical marijuana dispensary to come into the Page 18 of 20 Pages Planning Commission Minutes September 6, 2006 City as they would be placing the operator or the person requesting that land use in the position of entitling an establishment that would be illegal under Federal law, yet legal in the State of California. Mr. Sheatz was very adamant that this ordinance amendment isn't specifically targeted at medical marijuana facilities and it is not an indictment or a directive by the City of Orange regarding the Compassionate Use Act as those provisions are still fully in tact. This effort is focused merely on the land use. Commissioner Imboden stated he wanted assurances the Commission wasn't precluding any instances where local ordinance is more stringent than Federal. Commissioner Steiner quoted a hypothetical example and Mr. Sheatz responded they are not talking about having the letter of state, local and/or federal laws all being consistent. Commissioner Steiner asked if there would be any utility in changing the phraseology of the last portion of the proposed ordinance so that it would read "or the Permitting of Any Land Use to be Not Inconsistent With All Federal, State and Local Laws". Commissioner Steiner thought this would be broader and potentially less restrictive as a municipality. Mr. Sheatz responded he didn't have a problem with incorporating the proposed change and he welcomed this type of dialog from the Commissioners. Commissioner Steiner stated he was merely thinking aloud and stated he is more inclined to defer to the expertise ofMr. Sheatz. Chair Bonina asked Mr. Sheatz ifhe wanted more time to consider this. Mr. Sheatz responded he didn't have a problem with adopting the proposed change if it created a greater comfort level for the Commission. Commissioner Bilodeau stated he had no problem with the proposed change as he thought they both accomplished the same thing. Chair Bonina agreed with Commissioner Bilodeau and asked Commissioner Steiner if it would be better to leave the language as is, understanding his comments will be documented for the City Council to review and debate as necessary. Commissioner Steiner responded affirmatively. Commissioner Steiner made a motion to Adopt Resolution No. PC 40-06 recommending to the City Council approval of Ordinance No. 14-06. Commissioner Steiner also suggested research into the issue of Federal pre-emption stating he was curious as to whether or not there are any instances in the case law of where a City ordinance was more restrictive and a City inadvertently bound itself to follow less restrictive law. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Bonina Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. Page 19 of20 Pages Planning Commission Minutes September 6, 2006 Chair Bonina made a motion to adjourn the meeting to the next regular meeting on Monday, September 18,2006. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Bilodeau Commissioners Bonina, Bilodeau, Imboden, Steiner None None None MOTION CARRIED. MEETING ADJOURNED @ 9:42 p.m. Page 20 of 20 Pages