Approve Resolution Approving Administrative Appeal 2012-01 and Revoking Conditional Use Permit 2001-05 for 444 Main Street.

Meeting Date: April 03, 2012

Agenda Item #10. Approve Resolution Approving Administrative Appeal 2012-01 and Revoking Conditional Use Permit 2001-05 for 444 Main Street.

(Screen Shots of Actual Documents available upon request)

STAFF REPORTAGENDA ITEM: Approve Resolution Approving Administrative Appeal 2012-01 and Revoking Conditional Use Permit 2001-05 (Approved by Planning Commission Resolution 2001-16) for 444 Main Street.

MEETING DATE: April 3, 2012

PREPARED BY: Donna M. Kenney, Community Development Director

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Approve Resolution approving Administrative Appeal 2012-01 and revoking Conditional Use Permit 2001-05 for 444 Main Street.

BACKGROUND AND DISCUSSION:

On January 10, 2012, the Planning Commission by a vote of 5-0 amended Conditional Use Permit 2001-05 for 444 Main Street to sell alcohol by the glass. On January 19, 2012, during the required ten (10) day appeal period after a Planning Commission decision, an appeal was filed with the City Clerk’s office. The minutes of the regular Planning Commission meeting of January 10, 2012, the meeting at which the Planning Commission modified the CUP, were approved by Resolution February 14, 2012 and were provided to the City Council for their regular meeting of March 6, 2012. Council revoked the Conditional Use Permit at this meeting and directed staff to return with the attached resolution.

ENVIRONMENTAL STATUS:

The revocation of a CUP for an existing facility is exempt from environmental review under CEQA Guidelines Section 15061 (b)(4). The Project will be rejected or disapproved by a public agency.

FISCAL IMPACT:

None.

ATTACHMENTS:

1. Resolution 2012-__, a Resolution of the City Council approving Administrative Appeal 2012-01 and revoking Conditional Use Permit 2001-05 for 444 Main Street.

RESOLUTION 2012-

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON APPROVING ADMINISTRATIVE APPEAL 2012-01 AND REVOKING CONDITIONAL USE PERMIT 2001-05 (APPROVED BY PLANNING COMMISSION RESOLUTION 2001-16) FOR 444 MAIN STREET

WHEREAS, pursuant to Livingston Municipal Code (“LMC”) section 5-6-1(D), the Planning Commission may revoke or modify a Conditional Use Permit (“CUP”), the use of which has ceased for one year or more, or take other action as may be necessary to ensure compliance with all applicable laws and conditions; and

WHEREAS, at their public meeting on November 8, 2011, the Planning Commission directed staff to place reconsideration of the Conditional Use Permit (“CUP”) for the sale of alcohol at 444 Main Street (APN 024-114-008), CUP 2001-05, on the Planning Commission agenda; and

WHEREAS, the sale of alcohol at 444 Main Street ceased in 2004 when the Tequila Club closed for business. Therefore, pursuant to LMC Section 5-6-1(D)(3), the Planning Commission had sufficient grounds to revoke or modify the CUP, or take any other action necessary to ensure compliance with applicable laws and conditions; and

WHEREAS, reconsideration of the CUP was properly noticed by posting on the building at 444 Main Street, publication of a newspaper advertisement, and a notice mailed to the property owner and adjacent properties within 300 feet of the site; and

WHEREAS, at their regular meeting of January 10, 2012, the Planning Commission was given four options: 1) modify the existing CUP; 2) modify the existing CUP and impose the new parking requirement; 3) revoke the existing CUP; or 4) do not revoke or modify the existing CUP. The Planning Commission decided to modify the existing CUP to remove references to the Tequila Club and add additional conditions of approval; and

WHEREAS, pursuant to LMC 5-6-1 (D) an appeal to the City Council was filed within ten (10) days; and

WHEREAS, at their regular meeting of March 6, 2012, the City Council held a properly noticed appeal hearing to consider the CUP and the Planning Commission’s decision. The City Council was presented with the same four options that were provided to the Planning Commission: 1) modify the existing CUP; 2) modify the existing CUP and impose the new parking requirement; 3) revoke the existing CUP; and 4) do not revoke or modify the existing CUP; and

WHEREAS, after hearing public testimony, and testimony from the applicant’s attorney, the City Council directed staff to bring the item back for further consideration and to prepare a resolution revoking the CUP. The City Council did not make a final decision at their March 6, 2012 meeting; and

WHEREAS, the appeal hearing was continued in order to provide the applicant and the public with an additional opportunity to be heard.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livingston as follows:

SECTION 1. Factual Findings. The City Council of the City of Livingston hereby finds as follows:

A. On October 9, 2001, the Livingston Planning Commission approved CUP 2001-05 for on‑site alcohol sales and consumption for the Tequila Club at 444 Main Street, subject to several conditions (Resolution 2001-16). CUPs “run with the land,” which means they are granted for the site and not the individual applicant.

B. On February 10, 2004, during a mandatory six-month review of the CUP, and in response to complaints from business neighbors and the police department, the Planning Commission added a new condition to the CUP. The condition prohibited people from congregating outside of Tequila Club and blocking sidewalks while smoking.

C. Additional complaints were received prior to the next CUP review on August 6, 2004. Most of the complaints pertained to people congregating and blocking the sidewalk, drinking outside of the building, littering outside of the Tequila Club and leaving trash and broken beer bottles in the neighboring Rite-Aid parking lot. In response, the Planning Commission adopted a resolution requiring additional review of the CUP after three months. There is no record of a subsequent review of the CUP. Presumably, the Tequila Club closed down prior to the next review.

D. The sale of alcohol at 444 Main Street ceased in 2004 when the Tequila Club closed for business. No establishment has reopened at this location since 2004.

C. At the regular meeting of January 10, 2012, the Planning Commission reviewed the CUP and considered revoking or modifying the CUP pursuant to LMC Section 5-6-1(D), which authorizes the Planning Commission to revoke or modify any conditional use permit if the “use for which the approval was granted has ceased or has been suspended for one year or more.”

D. The Planning Commission was given four options: (1) modify the existing CUP; 2) modify the existing CUP and impose the new parking requirement; 3) revoke the existing CUP; or 4) do not revoke or modify the existing CUP. The Planning Commission decided to modify the existing CUP to remove references to the Tequila Club and add additional conditions of approval.

E. An appeal to the City Council was filed within ten (10) days pursuant to LMC 5-6-1 (D).

F. At their regular meeting of March 6, 2012, the City Council held a properly noticed appeal hearing to consider the CUP and the Planning Commission’s decision. The City Council was presented with the same four options that were provided to the Planning Commission: 1) modify the existing CUP; 2) modify the existing CUP and impose the new parking requirement; 3) revoke the existing CUP; and 4) do not revoke or modify the existing CUP. After hearing public testimony, and testimony from the applicant’s attorney, the City Council directed staff to prepare a resolution revoking the CUP. The City Council did not make a final decision at their March 6, 2012 meeting.

G. At their regular meeting of April 3, 2012, the City Council once again heard public testimony and provided the applicant and his representation another opportunity to address the City Council.

SECTION 2. Applicable Law.

A. 444 Main Street is located in the Downtown Commercial District (“DTC”) of Livingston. The sale of alcohol at bars is not permitted in the DTC unless the City approves a CUP (LMC 5.3 Table 3). Bars serving alcohol for on-site consumption within the DTC must be more than 1,000 feet apart. (LMC 5.3 Table 3, fn 1.)

B. LMC Section 5-6-1(D), “Revocation of Permits and Variances,” authorizes the Planning Commission to “revoke or modify any conditional use permit, occupancy permit, or variance on one or more” of the grounds listed therein. Subsection (D)(3) authorizes the revocation or modification of a CUP if the “use for which the approval was granted has ceased or has been suspended for one year or more.” LMC Section 5-6-1(D) does not require any particular findings be made in order to revoke a CUP after the use ceases for more than one year.

C. LMC Section 5-6-1(D) allows property owners or any other person that is “dissatisfied with the action of the Planning Commission, [to] appeal in writing to the City Council within ten days of the date the Planning Commission renders a decision on the proposed revocation or modification.” The City Council reviews the Planning Commission decision de novo, meaning it is not limited to approval or denial of the Planning Commission’s decision. The City Council may take any action that was available to the Planning Commission, including the revocation or modification of the CUP.

SECTION 3. Conclusion. Based upon all the evidence in the record, including, without limitation, documents, staff reports and testimony, the City Council finds as follows:

A. Since the sale of alcohol at 444 Main Street ceased in 2004 and no establishment has reopened at this location since 2004, the Planning Commission review of the CUP was proper pursuant to LMC Section 5-6-1(D)(3).

B. The appeal was filed within 10 days of the date of the Planning Commission’s decision to revise the CUP, therefore, proper pursuant to LMC Section 5-6-1(D).

C. Based upon all the evidence in the record, including without limitation, documents, staff reports, and testimony, the City Council finds that the sale of alcohol at 444 Main Street has resulted in a detrimental effect on surrounding areas. The record shows that there have been significant instances of police activity due to the past sale of alcohol at 444 Main Street including, but not limited to, trash and beer bottles left in the Rite-Aid parking lot, patrons blocking the sidewalk while smoking, and private security outside of the building instead of inside supervising the music and dancing. The record also shows that the location does not have adequate parking for a bar use. In the past there were complaints regarding the impacts to Rite-Aid’s parking lot. Not including foot patrol or alarm checks, there were at least eleven (11) calls for police service to the site between January of 2001 and December of 2003 resulting in six (6) arrests. Charges included two (2) for driving under the influence, two (2) for battery, one (1) warrant arrest and one (1) assault with a deadly weapon.

SECTION 4. Revocation. Based upon all the evidence in the record, including without limitation, documents, staff reports and testimony, the City Council of the City of Livingston hereby revokes CUP 2001-05 and approves Administrative Appeal 2012-01.

Passed and adopted this 3rd day of April 2012, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

______________________________

Rodrigo Espinoza, Mayor

of the City of Livingston

ATTEST:

I, hereby certify that the foregoing Resolution was regularly introduced, passed, and adopted at a regular meeting of the City Council of the City of Livingston, this 3rd day of April 2012.

______________________________

Antonio Silva, City Clerk

of the City of Livingston

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