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2005 - January 3 APPROVED MINUTES January 3,2005 Monday -7:00 p.m. Planning Commission City of Orange PRESENT: Commissioners Bonina, Brandman, Dorner, and Pruett ABSENT: None STAFF PRESENT: Leslie Roseberry, Planning Manager Gary Sheatz, Assistant City Attorney Roger Hohnbaum, Assistant City Engineer Jerre Wegner, Recording Secretary INRE: PUBLIC PARTICIPATION: None. INRE: ITEMS TO BE CONTINUED OR WITHDRAWN: None. INRE: CONSENT CALENDAR: (1) THERE WERE NO MINUTES AVAILABLE FOR REVIEW AT THIS MEETING. (2) ZONE CHANGE NO. 1228-04, CONDITIONAL USE PERMIT NO. 2409-02, VARIANCE NO. 2124-03, AND MINOR SITE PLAN REVIEW NO. 223-02 - ARCO (BP WEST COAST PRODUCTS, LLC) A proposal to redevelop an existing gas station with new mini-market and gas pump island. The proposal includes: Zone Change 1228-04 to change a portion of the site to C-TR (Commercial - Tustin redevelopment) from C-l (Limited Business), CUP 2409-04 to allow the sale of beer and wine for off-site consumption, Minor Site Plan Review 223-02 to allow the construction of a building smaller than 10,000 sq. ft., and Variance no. 2124-03 to allow a reduction in on-site parking. NOTE: Negative Declaration 1690-02 was prepared to evaluate the potential environmental impacts of the project in accordance with provisions of the California Environmental Quality Act (CEQA). Chris Carnes, Senior Planner, introduced the item. He explained that the applicant was proposing the demolition of an existing mini-mart gas station and the construction of a larger facility. The proposed mini-mart building is approximately 3,000 sq. ft. and the new gas facility has eight gas APPROVED Planning Commission January 3,2005 pump islands with a larger canopy. The proposal includes the incorporation of what was formerly the Villa Park right-of-way into the project site and will create one larger project site. The existing facilities presently sell beer and wine, but at the time that they received approval for that, the City did not require a Conditional Use Permit, so it is presently a legal non-conforming use. Mr. Carnes noted that Staff is recommending approval for the item to go forward to the City Council, noting there are 53 Conditions of Approval. The public hearing was opened. Chair Pruett invited the applicant to present their project. Leslie Burnside, 9089 Clairemont Mesa Boulevard, San Diego, represented BP West Coast Products. She noted that there were several other individuals from her project with her at the meeting, and while they had no prepared presentation, they were available should there be questions - Kent Allen and Craig Yamasaki with BP, and Gary Weisberg with Palmieri Tyler. Ms. Burnside noted that they were happy to present before the Planning Commission, as the project had been underway for approximately three years. She felt the project was aesthetically, a much higher quality project than currently existed, and included a substantial amount of landscaping (approximately 7,200 sq. ft. oflandscaping). She stated that there was much better circulation on the property for cars, which allowed servicing the customers in a much more expedient manner. She acknowledged a good give-and-take relationship with Staff and the Design Review Committee. She stated that she had read all 53 Conditions of Approval and were in agreement with them, including the 15 items that are directly related to the sale of beer and wine. Chair Pruett invited the Commissioners to direct questions toward Staff, and stated that Staff may then ask the applicant to come forward for response, if necessary. The Commissioners noted the following questions/concerns: . Does the Planning Commission normally look at issues of shared access between properties? Mr. Hohnbaum: Usually no. In this case when the City abandoned the road it reserved an access easement between the multiple properties that were taking access through that little roadway, and this was done quite some time ago. The issue that came up between the adjacent property owners was the amount of traffic that would go through there, particularly the large vehicles. The gas station is going to need access to that abandoned road which is now an easement for their large tanker trucks to be able to navigate in and out of the property safely. There was a study done to just determine the amount of traffic that could be coming into that private easement from the gas station, and typically the City would not do that. Circulation between properties is not something that the City would be concerned with, that would be a condition of the easement. . In a September 10, 2004 letter from Palmieri, et aI, it says one of the conditions recommended by the Staff Review Committee requires BP to provide "proof that legal access rights exist from the subject site to Tustin Street prior to the issuance of any building permits." Has this been done yet? Gary Sheatz: One thing, which is unclear with this issue, is whose satisfaction has to be shown at this point. We know that access exists, we know the easement is valid that is in place, and we also understand it is tied up in 2 APPROVED Planning Commission January 3,2005 litigation right now, as well. It is unclear where we are on this at this moment. Mr. Hohnbaum: It was Public Works that imposed the condition because of the litigation that is ongoing on the property with the easement. The City Attorney has looked at it and feels there is a decent claim that there should be access by the ARCa people through that alley, and there is a claim that there may be a 'change of use' to that access point, and therefore it is in court for litigation. The intent of the City is to see that claim to completion and to see the results of that litigation to determine whether or not reasonable access in the type that they need is provided. The biggest concern is not the vehicles going to and from the station, but for the tanker trucks that supply the gas. If the courts determine that BP cannot use that easement, then that would not be satisfactory to Public Works, it would not be seen as 'reasonable circulation' on the site. That is the reason that condition exists. . There is an issue with line-of-sight for cars that are pulling back out onto Katella with cars that are coming off the southbound 55 off-ramp and are making a turn westerly onto Katella. In the plans, the eastern-most driveway approach has been moved. How many feet has that been moved over to the west? Ms. Burnside: Very roughly, it appears that the driveway has been moved approximately 15 feet. Also, as a matter of information, the trees that have been chosen are the canopy type, as BP really wants to make sure there is good visibility and safety entering and exiting the property. And, if Mr. Hohnbaum could also address the left-turn pocket in front of the property, please? There will not be any changes at this time. The turn pocket must remain the same because it controls turning movements from properties on both sides ofKatella. . Could you describe the deliveries that take place at the site? The majority of the deliveries are for food products, etc., that go into the mini-mart, and as such, generally are confined to daytime deliveries. . The fuel drop, as I understand, there are two per week? Kent AllenlBP: It is BP's desire, obviously to sell a lot of fuel. A tanker, typically, holds 9,000 gallons. If a store is selling around 240,000 gallons, deliveries are a little less than once per day. Currently volume is approximately 210-230,000 gallons. Hopefully, this site will sell more, and we hope that maybe we'll be delivering maybe one and a half times per day. Deliveries are planned around the customers and neighbors, we don't want to upset either. Safety is also considered. Deliveries are mid-morning or early afternoon. We don't like to deliver at night, but in some cases it is necessary. Merchandise/food sales are in the neighborhood of $85,000 per month and we're hoping that we'll be doing far greater than that, once we are rebuilt. . There is concern about the over concentration of alcoholic beverage licenses in the neighborhood. The staff report stated that the cooler where the alcoholic beverages are displayed would be inaccessible to the public between 2:00 A.M and 6 A.M. is this correct? Yes, the cooler where these beverages are stored is locked up during those hours. . According to the Staff Report, some of the parking is being allowed under the canopy, and where there is traffic coming and going, is there any kind of discussion and thought being given to the traffic flow? Mr. Hohnbaum: This issue has been looked at in detail. Typically, we would provide a 25-foot back-up space to the perpendicular parking spots, and if you'll note through the first-pump island and the nosing of the concrete surrounding it, we have provided 35 feet. So the City has actually worked with the applicant to provide for some overhang, and vehicles that are at the pump station, and to ensure that the 25-foot minimum back-up space is met and then some. 3 APPROVED Planning Commission January 3,2005 . Condition #25 which states "no malt beverages ", I'm assuming that is beer? The provision was initiated because they found that in Los Angeles, they found that by eliminating malt beverages and 24 oz. containers, it cut down on that segment of the alcohol-imbibing group that had a higher probability of abusing alcohol, and panhandling. In our previous applications we've never used the term "malt beverages" - it's been beer. Is this term redefining what we're dealing with? Ms. Roseberry: If its the desire of the Commission that this be clarified to include beer to make sure there's no question about it, the condition can certainly be changed to no malt or beer beverages or fortified wine in 24 oz. containers. Public is invited for comment. Opposed: Siobhan Byrne, GVD Commercial Properties, 1915 E. Katella, Orange, owns the parcel of land that directly faces the new project before the Commission. She introduced John McClendon, Attorney, with Van Blarcom, Leibold, McClendon & Mann who accompanied her. She stated that first she wanted to address Resolution 4228 states that there is a 42- foot easement that runs the length of the abandoned Villa Park Road. This easement was a requirement by the City of Orange to permit free access and to maintain adequate circulation for the abutting property owners. This easement should be reciprocal, and that her property should have as much access to the Villa Park Road. In the paperwork that she has seen, it appears that ARCO wants to remove their easement requirements from their project. So they will be building over the easement, and expand their building into the easement area. And they want to continue to burden the adjacent property owners by utilizing the easement down to Villa Park Road. What they're basically saying is "we can go ahead and abandon the easement on our property, but you abutting property owners cannot abandon the easement on your property because it doesn't benefit us." Resolution 4228 does not state that the easement ends at ARCO's westerly property line. It says that there is an easement through the length of the street. It is very specific. Further, not enough study has been done to show that only 12 parking stalls is adequate. John McClendon, 23422 Mill Creek Drive, Laguna Hills. Mr. McClendon noted that his firm is known as the CEQA.com law firm. He asked the Commission to pay particularly close attention to the letter that they presented. This was a situation where there was initially a mitigated negative declaration that was prepared by Staff. Included in that were a bunch of mitigation measures. His firm filed a complaint on that, making several arguments that there was still unmitigated environmental impacts, and that an EIR needed to be prepared. Following the submittal, was what you see before you, a negative declaration, all mitigation measures deleted, no longer a mitigated negative declaration. Under CEQA, Section 15065, Subdivision G of the State's CEQA Guidelines, it basically says that when there is a disagreement among experts in whether or not there's an environmental impact, that an EIR should be prepared. This is a situation where the City itself has gone on record, saying that there are significantly potential impacts unless mitigation is incorporated into this project. Chair Pruett invited the applicant to respond. 4 APPROVEl) Planning Commission January 3,2005 Craig Yamasaki stated that he believed that Staff had thoroughly examined the issue, and when clarification is given by Staff on the various points noted, they will be able to address them quite fully. He stated that the case will be duly adjudicated in a court oflaw. Ms. Roseberry spoke on the issue of the negative declaration. She stated that Staff did release a negative declaration for review and comment some months ago. After that, a negative declaration was released that included some indicators that were referred to as mitigation measures. Staff re- reviewed the project and realized that a Zone Change was, indeed, necessary for the project. The step in the process that was missed by Mr. McClendon in his statements was that the reason why the negative declaration was reissued to begin with was the project description needed to be revised to include a Zone Change. It was imperative that the negative declaration indicates each step in the process, and each entitlement that was being sought by ARCa. It was determined that no need to indicate standard conditions or code requirements as mitigation measures. For instance, in the hydrology section, the "mitigation measures" refer to NPDES requirements. That's not a mitigation measure, that's standard practice, so that's not necessary. It's not necessary to indicate that following the UBC is necessary. So that was removed, as well. Mr. Sheatz, Assistant City Attorney, spoke to the "mitigation measures," stating that those are code requirements and state law and are not mitigation measures. Those haven't gone away. Those are still requirements for this project. The Commissioners stated that the right-of-way issue needs to be resolved in order to receive final approval. Mr. Sheatz stated that one key thing that had been excluded from the previous testimony is that it is stated in the easement that adequate circulation be maintained by the abutting properties, and the intent was for circulation purposes. The City has looked at this matter. If you're going towards the ARCa site from the GVD site, where are you going to? The City never gave anybody the right to go across another person's property or parcel and access ingress and egress from that site. It doesn't appear that there is a need for circulation between those two sites. The intent originally was to get people out from the ARCa site along Villa Park Road to Tustin Boulevard. The court has the jurisdiction to ultimately resolve this issue. The public hearing was closed. Chair Pruett opened the topic up for discussion or action by the Planning Commission. The only comment was made by Commissioner Domer on C.u.P No. 23 to make sure that Staff understands the issue regarding "no malt beverage, beer, or fortified wine products of greater than 15% in volume" are included to reflect the opinion of the Commission. It was noted that a modification would be made to both c.u.P. conditions no. 23 and 25, which dealt with this issue. Commissioner Bonina moved to adopt Resolution No. PC 25-04 recommending to the City Council adoption of Negative Declaration 1690-02 and approval of Zone Change 1228-04, Conditional Use Permit No. 2409-02, Variance No. 2124-03, and Minor Site Plan Review No. 223-02. Commissioner Domer seconded the motion. 5 Planning Commission AYES: NOES: ABSTAIN: ABSENT: Commissioners Bonina, Brandman, Domer, and Pruett None None None APPROVED January 3,2005 MOTION CARRIED Commissioner Brandman moved to adjourn to the next regularly scheduled meeting on Monday, January 17, 2005. Commissioner Domer seconded the motion. AYES: NOES: ABST AIN: ABSENT: Commissioners Bonina, Brandman, Domer, and Pruett None None None The meeting adjourned at 8:35 p.m. 6 MOTION CARRIED