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HomeMy WebLinkAbout02 APPEAL OF CUP 07-020 03-04-08Agenda Item Reviewed: AGENDA REPORT City Manager Finance Director MEETING DATE: MARCH 4, 2008 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT 2 SUBJECT: APPEAL OF PLANNING COMMISSION DENIAL OF CONDITIONAL USE PERMIT 07-020 SUMMARY: The project is a request to establish a dental office in a stand-alone building located at 740 EI Camino Real, also known as Assessor Parcel Number (APN) 401-641-01 (Exhibit A — Location Map). The Planning Commission conducted public hearings on the proposed project on December 11, 2007, January 8, 2008, and January 22, 2008. On January 22, 2008, the Planning Commission adopted Resolution No. 4079 denying Conditional Use Permit 07-020 to establish a dental office at 740 El Camino Real. On January 29, 2008, the property owner appealed the Planning Commission's action to the City Council (Exhibit B — Submitted Letter of Appeal). Applicant: Property Owner: Dr. Ashok Mehta Dr. Sayed Mirrafati 13711 Newport Ave., Suite 11 Mira Properties, LLC Tustin, CA 92780 685 Nyes Place Laguna Beach, CA 92651 RECOMMENDATION: Pursuant to Tustin City Code Section 9294(d), the City Council could take action on one of the following alternatives: Reverse or modify the decision of the Planning Commission and direct staff to prepare a resolution approving Conditional Use Permit 07-020; or, 2. Adopt Resolution No. 08-22, denying the appeal, thus upholding the Planning Commission's denial of Conditional Use Permit 07-020; or, 3. Remand the project back to the Planning Commission for further proceedings. FISCAL IMPACT: The conditional use permit application is an applicant -initiated project. The applicant has paid applicable fees for the processing and appeal of this project. City Council Report March 4, 2008 Appeal of CUP 07-020 Page 2 of 12 ENVIRONMENTAL ANALYSIS: If the decision is upheld, the action may be statutorily exempt pursuant to Section 15270 of the California Environmental Quality Act (Projects Which Are Disapproved). If the decision is reversed, the project may be categorically exempt pursuant to Section 15301 (Existing Facilities). DISCUSSION: Planning Commission Actions On December 11, 2007, the Planning Commission held a public hearing on the project. Correspondence and a Public Records Act Request were submitted by representatives of the property owner prior to and at the hearing; thus, the item was continued to give the Planning Commission and City staff time to review and respond to this material. The January 8, 2008, Report to the Planning Commission (included in Exhibit C) responded to the correspondence submitted by the property owner's legal counsel. At the continued public hearing on January 8, 2008, the Planning Commission continued the item to January 22, 2008 and directed staff to conduct further research into the facts of the project, specifically regarding the issues of street frontage, postal address, potential precedential significance, and building improvements (Exhibit D — Minutes). Please refer to Exhibit C (Report to Planning Commission, January 22, 2008) for full project -specific details, as they may not all be reiterated herein. At the January 22, 2008 meeting, the Planning Commission heard the item and voted 4-0 to adopt Resolution No. 4079 denying CUP 07-020 (Exhibit E). Pursuant to Section 9291 of the Tustin City Code (TCC), the Planning Commission is authorized to make decisions on use permits. Pursuant to Section 9294 of TCC, any person may appeal a decision of the Planning Commission to the City Council. The City Council is requested to consider the appeal of the Planning Commission's decision denying the Conditional Use Permit to establish a dental office at the subject site. Project Description The applicant is requesting approval to establish a dental office in an existing stand-alone building located at 740 EI Camino Real (Exhibit A). The subject property is located within the Central Commercial (C-2) zoning district, where professional offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to criteria established in Tustin City Code Section 9233c(y). The General Plan designation is Old Town Commercial, which allows for retail, professional office, and service-oriented business activities to serve Old Town and surrounding areas. The proposed site is improved with a 1,757 square foot existing single -story building that was relocated to the City in 1972. The applicant proposes to operate his dental practice at City Council Report March 4, 2008 Appeal of CUP 07-020 Page 3 of 12 the property, which will involve dental care services, orthodontic work, as well as a small retail area to sell and market whitening products, videos for dental hygiene, and dental operatory chairs. The proposed use would require interior plumbing remodel work to the building. The retail area will occupy around 180 square feet, which constitutes approximately 10 percent of the floor area of the facility (Exhibit F — Submitted Plans). The proposed hours of operation are 9:00 a.m. to 6:00 p.m. Monday through Friday. The anticipated number of employees is five (dentist, two dental assistants, receptionist, and front office dental secretary). Site and Surrounding Properties The site is located at the Y -intersection of EI Camino Real and EI Camino Way (Exhibit A). The site surroundings include retail and commercial uses on all sides. EI Camino Plaza is located at the west, Tustin Motor Lodge and Makena Square to the south, Galaxy Automotive to the north, and a retail strip center to the east. Existing Building Improvements As proposed, the project does not include any interior or exterior improvements to the existing building. At the January 8, 2008, meeting, the Commission asked for clarification as to the applicant's intentions for the property (Exhibit D). Dr. Mehta has indicated that if the use was to be approved and he was to establish his dental practice at the subject location, he would be planning to make improvements to the existing building. At a minimum, he plans on improving the exterior of the building by painting, improving the parking lot, reviewing ingress and egress, and upgrading the restrooms according to code requirements. He has indicated that further improvements to the property could be possible, but he has no concrete plans at this point (Exhibit G — Letter from Dr. Mehta). However, should the City Council decide to approve the project, staff recommends that the applicant be required to enhance the exterior of the building through the Design Review process. This would include at a minimum high quality, four-sided elevation improvements and parking lot and landscape improvements. Office Use Provision The code provision relating to office uses within the C-2 district was initially adopted in 1983. The intent of the office use provision was to encourage retail establishments on the ground floor, particularly in Old Town. After a series of interim ordinances adopted by the City Council and workshops held by the Planning Commission, the new office use provision (Code Amendment [CA] 06-004) was adopted by the City Council on September 18, 2006. Exhibit H provides further information on the history and adoption of the Code Amendment, including excerpts from the Planning Commission and City Council meetings at which the issues were discussed. As a result of CA 06-004, the map in Exhibit J City Council Report March 4, 2008 Appeal of CUP 07-020 Page 4 of 12 highlights the properties that staff believe to be subject to the office use provision in TCC Section 9233c(y). Pursuant to Tustin City Code Section 9233c(y), a conditional use permit is required to establish a professional or general office in the C-2 (Central Commercial) zoning district if fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation. However, office development must also meet certain specific criteria, as listed below: 1. Pursuant to Tustin City Code Section 9233c(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. 2. Pursuant to Tustin City Code Section 9233c(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. b. The proposed use is to be located in an existing building that, because of its design and orientation, is impractical to modify or alter to accommodate retail establishments. c. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Conditional Use Permit The property is located at the Y -intersection of EI Camino Real and EI Camino Way, and has two street frontages along EI Camino Real and EI Camino Way (see Exhibit J). At the January 8 and January 22, 2008 meetings, the Commission discussed the frontage of the subject property in determining whether a conditional use permit is necessary for the proposed project. If the property were to be found to be fronting onto City Council Report March 4, 2008 Appeal of CUP 07-020 Page 5 of 12 EI Camino Real, a conditional use permit would be required (Exhibit D – Planning Commission Minutes). Frontage Section 9233c(y) of the TCC lists, "Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation" among the Conditionally Permitted Uses in the C-2 zoning district. Professional and general offices not "fronting onto" Main Street or EI Camino Real are permitted uses in the C-2 zoning district, not requiring conditional use permits (Exhibit H). 1. Definitions in the City Code The Tustin City Code does not define "fronting." However, Section 9297—Definitions of the TCC (Exhibit H), does include definitions of "Lot Front" and "Side and Front of Corner Lots." "Lot Front" is defined as "the narrowest dimension of a lot fronting on a street," which, in the case of the subject property, is the portion of the lot fronting on EI Camino Real. Additionally, "'Side and Front of Corner Lots means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces." This definition is used to determine setbacks (i.e. front, side, rear setbacks). Hence, at least for purposes of the definition of "Side and Front of Corner Lots" a property can have two frontages and a building orientation may not be relevant in determining frontage. Although the subject property is not a traditionally shaped corner lot, it can be considered a corner lot as it is not bordered by adjacent properties on either side. Based on the information available in the Tustin City Code, staff continues to conclude that the subject property fronts onto both EI Camino Real and EI Camino Way. Staff interprets the C-2 office provision as being applicable to any property within the C-2 zoning district and Old Town Commercial General Plan land use designation that has any portion of the lot fronting on to EI Camino Real or Main Street, regardless of building or front door orientation [Exhibit J – Map of properties subject to TCC 9233c(y)].' ' Staff notes that Section 9233c(y) applies to "offices fronting onto" Main Street or EI Camino Real. Thus, one question to consider is whether the pertinent factor is the lot which "fronts" onto those streets, or the buildin that "fronts" upon those streets. City Staff believes that the section is best understood to refer to all lots that "front onto" Main or EI Camino Real, regardless of the configuration of the building. If the configuration of the building entrance alone was determinative, property owners could modify their buildings so that building entrances are not facing Main or EI Camino Real, and in doing so defeat the purpose of the zoning ordinance to establish a retail corridor on the ground floor of buildings along those two streets in Old Town. Staff believes the City's Zoning Code objectives are best advanced if the language is interpreted to apply to offices located upon lots that front on either Main or EI Camino Real. City Council Report March 4, 2008 Appeal of CUP 07-020 Page 6 of 12 2. Common meaning of "fronting upon" Letters dated December 11, 2007, January 4, 2008, and January 22, 2008, submitted by McCormick, Kidman & Behrens on behalf of the property owner purport to reference the "common meaning" of fronting, since the word is not defined in the City Code. The first two letters define the common meaning as "the front entrance of the building is on that street," but no source is provided (Exhibit C). The third letter provides additional definitions from Merriam -Webster's online dictionary (see Exhibit 1). If a "common meaning" is to be utilized, a reputable source should be referenced. Webster's Dictionary defines "fronting" as, "To look out upon; face," and "frontage" as, 1. The front part of a piece of property, as a building or lot. 2. Land adjacent to a building, street, etc." In the case of the subject property, the lot looks out upon and faces both EI Camino Real and EI Camino Way. In addition, land adjacent to the street exists on both EI Camino Real and EI Camino Way. The Planning Commission determined the property to be "fronting upon" two streets, both EI Camino Real and EI Camino Way (Exhibit E — Resolution No. 4079). 3. Postal Address The letters from the applicant's attorney's (McCormick, Kidman & Behrens) dated December 11, 2007 and January 4, 2008 (Exhibit C), indicate that the address of the property was at one time 730 EI Camino Way. However, staff has investigated this assertion and determined that the property was not addressed on EI Camino Way. The only record the City has of an official address change on the property was in 2004 in response to a citizen request, not a change initiated by the City. The address was changed from 730 EI Camino Real to 740 EI Camino Real in 2004 by the City's Public Works Department. Up until that time, there was a lot with the address 730 EI Camino Way and another lot (the lot that is subject to this application) with the address 730 EI Camino Real. City staff recalls that the complaint arose because mail that was addressed to 730 EI Camino Way was regularly misdirected to the nearby 730 EI Camino Real address. Thus the owner of the property at 730 EI Camino Way requested that the address be changed from 730 EI Camino Real to 740 EI Camino Real to reduce the potential for future confusion. City staff cooperated with the neighbor's request by processing the address change and coordinating the request with the Post Office. Potential Precedential Significance If the City Council were to determine that the property does not front onto EI Camino Real based on building orientation, and as a result no CUP were necessary, a significant precedent may be set in the interpretation of the C-2 office provision requirement. If building or front door orientation is used to determine if a property is fronting onto EI Camino Real or Main Street, numerous properties would be excluded, including large multi -tenant shopping centers such as EI Camino Plaza and Jamestown Village (see City Council Report March 4, 2008 Appeal of CUP 07-020 Page 7 of 12 Exhibit K). Many of their tenant spaces are not oriented towards EI Camino Real; however, the lots still front on to EI Camino Real. Properties such as the Assistance League and Cox's Family Market (Quinn's Old Town Grill) are located on EI Camino Real but their front doors are oriented towards the interior of the lot (Exhibit K). The parcels, however, have frontage along EI Camino Real and thus the Planning Commission found and staff believes that such properties would be subject to the office use provision. In addition, if certain vacant lots in Old Town such as those at EI Camino Real and Sixth Street and EI Camino Real and Third Street (Exhibit K) were to be developed with buildings not oriented towards EI Camino Real, staff does not believe that these properties would be exempt from the office use provision. The exclusion of all such properties may defeat the intent of the C-2 office provision which is to promote Old Town Tustin as a walkable mixed-use d istrict. If address is used to determine street frontage, a precedent may be set for approximately twenty (20) corner lots in Old Town, as elucidated in Exhibit J — Map of Properties Subject to TCC 9233c(y). The photographs in Exhibit K show examples of properties throughout Old Town that would be potentially affected by this determination. Corner lots that have two street frontages, such as the Tustin Garage or Tustin Glass at EI Camino Real and Sixth Street, may elect to be addressed off of the street frontage that is not EI Camino Real or Main Street in order to evade the CUP for office requirement should they choose to lease/rent to an office use. This could significantly undermine the objective of establishing a street -level retail corridor along Main and EI Camino Real by allowing office uses at corner locations throughout Old Town. Further, granting land use approval for ground floor office uses may extend the non- conforming uses indefinitely. The intent of a non -conforming code section is to permit the continuation or maintenance of a building and/or use until such time that a building/use is no longer used for the prior purpose. The intent is not to further the non -conformity of a building and/or use through granting a land use approval. In the case of the subject property, the office use has lapsed for more than twelve (12) consecutive months; therefore, pursuant to TCC Section 9273 (Non -conforming Structures and Uses), any subsequent use shall comply with the current City Code. APPEAL: Legal counsel for the property owner (Dr. Sayed Mirrafati) submitted a notice of appeal of the Planning Commission's actions denying Conditional Use Permit 07-020 within due time as set forth in Tustin City Code Section 9294 (Exhibit B — Submitted Appeal Letter). The grounds of appeal as noted in the submitted correspondence are discussed below: 1) Applicant's Appeal: The Planning Commission's determination that a conditional use permit is necessary for a dental office at 740 El Camino Real; City Council Report March 4, 2008 Appeal of CUP 07-020 Page 8 of 12 Staff Response: For the reasons discussed in the "Frontage" section of this report, the Planning Commission determined that the property fronts onto both EI Camino Real and EI Camino Way; therefore, the Planning Commission determined that a conditional use permit was required. 2) Applicant's Appeal: The Planning Commission's denial of Dr. Ashok Mehta's application for a conditional use permit for his dental practice at 740 El Camino Real, Staff Response: The comprehensive set of findings are set forth in Planning Commission Resolution No. 4079 (Exhibit E), in part the Planning Commission found that the proposed project did not meet the following requirements to support the conditional use permit, in that: 1. Pursuant to Tustin City Code Section 9233c(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233c(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building was occupied as an office. The last business license issued for this property prior to the establishment of a tutoring facility was for EI Camino Chiropractic City Council Report March 4, 2008 Appeal of CUP 07-020 Page 9 of 12 whose business license expired in 1995. Thus, the office use has lapsed for more than twelve (12) consecutive months and pursuant to Tustin City Code Section 9273 (Non -conforming Structures and Uses) any subsequent use shall comply with current City Code. The intent of a non -conforming code in the City's Zoning Code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulations until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. To further the non -conformity of a use and/or building does not meet the intent or purpose of a non -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non- conforming use contrary to the standards set forth in the Zoning Code and goals and objectives of the General Plan. On October 9, 2006, the Zoning Administrator approved CUP 06- 014, permitting a tutoring and counseling facility for children and adults including associated administrative offices, which currently occupies the building, and further invalidating the continuance of the property as an office use. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of EI Camino Real and EI Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. Evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish new office uses. There is inadequate evidence that modifying the building to accommodate retail uses is impractical. C. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. City Council Report March 4, 2008 Appeal of CUP 07-020 Page 10 of 12 The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on EI Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. Also, evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish proposed new office uses. There is inadequate evidence that modifying the building to accommodate retail establishments is economically infeasible or impractical. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to EI Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district is to encourage pedestrian activity in the retail area. Although the applicant has indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at an educational/tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. City Council Report March 4, 2008 Appeal of CUP 07-020 Page 11 of 12 3) Applicant's Appeal: The findings set forth in Planning Commission Resolution No. 4079 denying CUP 07-020, and, Staff Response: The appellant has requested that the City Council reverse the findings used by the Planning Commission to justify denial of CUP 07-020. The findings set forth in the Planning Commission Resolution were drafted based upon the analysis described under Section 2 above and support the Planning Commission denial of the project. 4) Applicant's Appeal: The inverse condemnation of the Property as a result of the City's actions related to the Property including causes of action pursuant to Klopping v. City of Whitter (1972) 8 Cal. 3d 39. Staff Response: The appellant seeks City Council reversal of the Planning Commission's denial of CUP 07-020. The City's actions to deny CUP 07-020 do not prevent the applicant or property owner from proposing a project that would comply with the City of Tustin's adopted regulations which allow for numerous uses. Staff has consistently informed the property owner of the requirements related to office uses established by the Tustin City Code. In correspondence dated August 2, 2004, staff informed Dr. Mirrafati of the property's zoning designation and of the specific code retail requirements at the ground floor level, and informed him that staff would not support a conditional use permit for ground floor office space at the site (Exhibit Q. Additionally, in correspondence dated October 12, 2007, staff similarly informed Dr. Mehta, applicant of the current project, of the site's zoning designation and restrictions and that staff may not be able to support ground floor office uses (Exhibit L). The application for CUP 07- 020 was received by the Community Development Department on November 1, 2007, and deemed complete on November 21, 2007, well within the time requirements set forth in Government Code Section 65943. The project was noticed and scheduled for public hearing before the Planning Commission on December 11, 2007. The application was processed in a timely manner and heard within all applicable time requirements. STAFF RECOMMENDATION: That the City Council adopt Resolution No. 08-22 (Exhibit M), upholding the Planning Commission's decision denying Conditional Use Permit (CUP) 07-020 to authorize a dental office located at 740 EI Camino Real in the Central Commercial (C-2) zone and fronting on to EI Camino Real. fy" Y"dJiL� Reina Kapadia Elizabeth A. Binsack Assistant Planner Community Development Director City Council Report March 4, 2008 Appeal of CUP 07-020 Page 12 of 12 Exhibits: A - Location Map B - Submitted Letter of Appeal C - Report to the Planning Commission, January 22, 2008 (includes Reports dated January 8, 2008 and December 11, 2007) D - Minutes, Planning Commission Meetings December 11, 2007, January 8, 2008, and January 22, 2008 E - Planning Commission Resolution No. 4079 F - Submitted Plans G - Letter from Dr. Mehta, submitted January 21, 2008 H - Office Use Provisions in Old Town, C-2 District Regulations, TCC 9297 (Definitions), Excerpts from August 14, 2006 Planning Commission Meeting, Excerpts from September 5, 2006 City Council Meeting I - Letter from McCormick, Kidman & Behrens, dated January 22, 2008 J - Map of properties subject to TCC 9233c(y) K - Photographs of Potentially Affected Locations in Old Town L - Letter to Dr. Mirrafati, dated August 2, 2004, and letter to Dr. Mehta, dated October 12, 2007 M - City Council Resolution No. 08-22 N - Interoffice Memo from City Clerk regarding letter from McCormick, Kidman.& Behrens, dated February 27, 2008 Exhibit A Location Map LOCATION MAP PROJECT NO.: CUP 07-020 ADDRESS: 740 EI Camino Real Exhibit B Submitted Letter of Appeal MCCOIRMICK, KIDMAN & BEHBENS, LLP LAWYERS H. L. (MIKE) MCCORMICK* ARTHUR G. KIDMAN* RUSSELL G. BEHRENS' SUZANNE M. TAGUE*' DAVID D. BOYER* DANIEL J. PAYNE* BRADLEY D. PIERCE' ELIZABETH L. MARTYN' JOAN J. BENNETT BOYD L. HILL EDDY R. BELTRAN HANNAH BENTLEY'S TRAM T. TRAN JOHN P. GLOWACKI 'A PROFESSIONAL CORPORATION tCERTIFIED SPECIALIST - PROBATE ESTATE PLANNING 6 TRUST LAW THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION "OF COUNSEL Via personal delivery City Clerk City of Tustin 300 Centennial Way Tustin, California 92780 650 TOWN CENTER DRIVE SUITE 100 COSTA MESA. CALIFOI?NIA 92626 TELEPHONES (714) 755-3100 (800) 755-3125 FAX (714) 755-3110 www.mkbiawyers.com January 29, 2008 Re: Sayed Mirrafati, M.D. Planning Commission Resolution No. 4079, CUP 07-020 Dear Sir or Madam: CITY OfGf gTLM OFFICE: 23601 MOULTON PARKWAY SUITE 220 /f LAGUNA HILLS, CALIFORNIA 92653 ZUUa !'�E��Hd� (�.a9r3$4-2205 Please allow this correspondence to serve as the notice of appeal by Dr. Sayed Mirrafati, the owner of the property located at 740 El Camino Real, of the City of Tustin Planning Commission's denial of CUP 07-020 by Resolution No. 4079. Pursuant to Tustin City Code section 9294, Dr. Mirrafati appeals the denial on all grounds, specifically including but not limited to: (1) the Planning Commission's determination that a Conditional Use Permit is necessary for a dental office at 740 El Camino Real in Tustin; (2) the Planning Commission's denial of Dr. Ashok Mehta's application for a Conditional Use Permit for his dental practice at 740 El Camino Real in Tustin, CUP 07-020 and Resolution No. 4079; (3) the findings set forth in Planning Commission Resolution No. 4079 denying CUP 07- 020; and, (4) inverse condemnation of the Property as a result of the City's actions related to the Property including causes of action pursuant to Klopping v. City of "itter (1972) 8 Cal.3d 39. Please also find enclosed the $175.00 appeal fee. It is our understanding that this is an appeal de novo before the City Counsel. Dr. Mirrafati will provide the arguments and evidence supporting the appeal once the hearing date is set. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Planning Commission Resolution No. 4079, CUP 07-020 January 29, 2008 Page 2 By copy of this correspondence to David Kendig, attorney to the Planning Commission, we request confirmation in writing that this correspondence is adequate to take up the appeal, that the appeal fee is received and sufficient, and that there will be no item whatsoever on the City Council's agenda related to this appeal prior to the date set for hearing. Please contact us at your earliest convenience and in advance of the hearing tomorrow to discuss this matter. We hope to resolve these issues quickly. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP IZABETH L. MARTYN JOHN PAUL GLOWACKI JPG:ddb cc: Sayed Mirrafati, M.D. (via U.S. Mail) David Kendig (via electronic mail at dkendig@wss-law.com and U.S. Mail) J.R. Shah (via U.S. Mail) Ashok Mehta (via U.S. Mail) Exhibit C Report to the Planning Commission, January 22, 2008 (includes Reports dated January 8, 2008 and December 11, 2007) ITEM #4 Report to the Planning Commission DATE: JANUARY 22, 2008 SUBJECT: CONDITIONAL USE PERMIT 07-020 (CONTINUED ITEM) APPLICANT: DR. ASHOK MEHTA 13711 NEWPORT AVENUE, SUITE 11 TUSTIN, CA 92780 PROPERTY OWNER: DR. SID MIRRAFATI MIRA PROPERTIES, LLC 685 NYES PLACE LAGUNA BEACH, CA 92651 LOCATION: 740 EL CAMINO REAL ZONING: CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) GENERAL PLAN: OLD TOWN COMMERCIAL ENVIRONMENTAL STATUS: THIS PROJECT IS STATUTORILY EXEMPT PURSUANT TO THE PROVISIONS OF SECTION 15270 (PROJECTS WHICH ARE DISAPPROVED) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT REQUEST: TO ESTABLISH A DENTAL OFFICE WITHIN AN EXISTING BUILDING LOCATED AT 740 EL CAMINO REAL (APN 401- 641-01). BACKGROUND The item has been continued from the December 11, 2007, and January 8, 2008, Planning Commission meetings. The item was continued from the December 11, 2007 meeting to the January 8, 2008 meeting to give the Planning Commission and City staff time to review and respond to correspondence submitted on behalf of the property owner and applicant, and to respond to a Public Records Act request. At the January 8, 2008 meeting, the Commission conducted a public hearing on the item and continued it to the January 22, 2008 meeting and requested additional information. The Commission directed staff to conduct further feesearch into the facts of the project, regarding the issues of street Usfi� Planning Commission Report CUP 07-020 January 22, 2008 Page 2 frontage, address, potential precedential significance, and building improvements.. Please refer to the staff report dated December 11, 2007, for full project -specific details, and the staff report dated January 8, 2008, for discussion of submitted correspondence, as they may not all be reiterated herein (Exhibit A). Project Proposal The applicant is requesting approval to establish a dental office in a stand-alone building located at 740 EI Camino Real, also known as Assessor Parcel Number (APN) 401-641- 01. The subject property is located within the Central Commercial (C-2) zoning district, where professional offices "fronting onto Main Street or EI Camino Real" and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to criteria established in Tustin City Code (TCC) Section 9233c(y). The General Plan designation is Old Town Commercial, which allows for retail, professional office, and service-oriented business activities to serve Old Town and surrounding areas. DISCUSSION Frontage Section 9233c(y) of the TCC lists, "Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation" among the Conditionally Permitted Uses allowed in the C-2 zone. Professional and general offices not "fronting onto" Main Street or EI Camino Real are permitted uses in the C-2 zone, not requiring conditional use permits. 1. Definitions in the City Code. The Tustin City Code does not define `fronting". However, Section 9297—Definitions (Exhibit B) of the TCC does include definitions of "Lot Front" and "Side and Front of Corner Lots." "Lot Front" is defined as "the narrowest dimension of a lot fronting on a street," which in the case of the subject property, is the portion of the lot fronting on EI Camino Real Additionally, "'Side and Front of Corner Lots' means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces." This definition is used to determine setbacks (i.e. front, side, rear setbacks). Hence, at least for purposes of the definition of "Side and Front of Corner Lots" a property can have two frontages and a building orientation may not be relevant in determining frontage. Although the subject property is not a traditionally shaped corner lot, it can be considered a corner lot as it is not bordered by adjacent properties on either side. Based on the information available in the Tustin City Code, staff continues to conclude that the subject property fronts onto both EI Camino Real and EI Camino Way. Staff interprets the C-2 office provision as being applicable to any property within the C-2 zoning district and Old Town Commercial General Plan land use designation that has any portion of the lot fronting Planning Commission Report CUP 07-020 January 22, 2008 Page 3 on to EI Camino Real or Main Street, regardless of building or front door orientation (Exhibit C).' 2. Common meaning of "fronting upon" Letters dated December 11, 2007 (Exhibit B of Report to the Planning Commission dated January 8, 2008), and January 4, 2008 (Exhibit D), submitted by McCormick, Kidman & Behrens on behalf of the property owner purports to reference the "common meaning" of fronting, since the word is not defined in the City Code. The letter defines the common meaning as "the front entrance of the building is on that street," but no source is provided. If a "common meaning" is to be utilized, a reputable source should be referenced. Webster's Dictionary defines "fronting" as, "To look out upon; face," and "frontage" as, 1. The front part of a piece of property, as a building or lot. 2. Land adjacent to a building, street, etc." In the case of the subject property, the lot looks out upon and faces both EI Camino Real and EI Camino Way. In addition, land adjacent to the street exists on both EI Camino Real and EI Camino Way. The property can be determined to be "fronting upon" two streets, both EI Camino Real and EI Camino Way. 3. Vehicular Access. A vehicular access driveway to the lot is provided from EI Camino Real. This serves as a primary entry from EI Camino Real—a through secondary arterial highway. Staff does not believe that factor alone should determine the outcome, however, because Staff believes the City Code restriction on office uses is best understood to apply to all properties with frontage on EI Camino Real, whether the frontage includes vehicular access or not. The objective of establishing a ground -level retail corridor would be undermined if parcels were exempted because they lack driveways for vehicular access, for instance. 4. Postal Address. The letters from McCormick, Kidman & Behrens dated December 11, 2007 and January 4, 2008, indicates that the address of the property was at one time 730 EI Camino Way. However Staff has investigated this assertion and determined that the property was not addressed on EI Camino Way. The County Assessor's office refers to the property as 605 EI Camino Real, not EI Camino Way. ' Staff notes that Section 9233c(y) applies to "offices fronting onto" Main Street or 1EI Camino Real. Thus, one question to consider is whether the pertinent factor is the lot which "fronts" onto those streets, or the building that "fronts" upon those streets. City Staff believes that the section is. best understood to refer to all lots that "front onto" Main or EI Camino Real, regardless of the configuration of the building. If the configuration of the building entrance alone was determinative, property owners could modify their buildings so that building entrances are not facing Main or El Camino Real, and in doing so defeat the purpose of the zoning ordinance to establish a retail corridor on the ground. floor of buildings along those two streets in Old Town. Staff believes the City's Zoning Code objectives are best advanced if the language is interpreted to apply to offices located upon lots that front on either Main or fl Camino Beal. Planning Commission Report CUP 07-020 January 22, 2008 Page 4 The only record the City has of an official address change on the property was in 2004 in response to a citizen request, not a change initiated by the City. Up until that time, there was a lot with the address 730 EI Camino Way and another lot (the lot that is subject to this application) with the address 730 EI Camino Real. City Staff recalls that the complaint arose because mail that was addressed to 730 EI Camino Way was regularly misdirected to the nearby 730 EI Camino Real address. Thus the owner of the property at 730 EI Camino Way requested that the address be changed from 730 EI Camino Real to 740 EI Camino Real to reduce the potential for future confusion. City staff cooperated with the neighbor's request by processing the address change and coordinating the request with the Post Office. Conditional Use Permit At the January 8, 2008 meeting, the Commission discussed the frontage of the subject property and directed staff to conduct further research into the matter. In determining whether a Conditional Use Permit is necessary for the proposed project, it must be determined whether the subject property fronts onto EI Camino Real or Main Street, or not. If the property were to be found to be fronting on to EI Camino Way only, no conditional use permit would be required to locate a dental office at the subject location, pursuant to TCC Section 9233a(g). However, if the property is found to be fronting onto EI Camino Real, a conditional use permit is required. Potential Precedential Significance If the Planning Commission were to determine that the property does not front onto EI Camino Real based on building orientation, and as a result no CUP were necessary, a significant precedent would be set in the interpretation of the C-2 office provision requirement. If building or front door orientation is used to determine if a property is fronting onto EI Camino Real or Main Street, numerous properties would be excluded, such as EI Camino Plaza, Jamestown Village, and Cox's Family Market (Quinn's Old Town Grill). This situation may defeat the intent of the C-2 office provision which is to promote Old Town Tustin as a walkable mixed-use district. Further, granting land use approval for ground floor office uses may extend the non -conforming uses indefinitely. If address is used to determine street frontage, a precedent may be set for approximately twenty (20) corner lots in Old Town. Corner lots that have two street frontages, such as the Tustin Garage or Tustin Glass at *EI Camino Real and Sixth Street, may elect to be addressed off of the street frontage that is not EI Camino Real or Main Street in order to evade the CUP for office requirement should they choose to lease/rent to an office use. This could significantly undermine the objective of establishing a street -level retail corridor along Main and EI Camino Real by allowing office uses at corner locations throughout Old Town (Exhibit C). Planning Commission Report CUP 07-020 January 22, 2008 Page 5 Existing Building Improvements As proposed, the project does not indicate any interior or exterior improvements to the existing building. At the January 8, 2008, meeting, the Commission asked for clarification as to the applicant's intentions for the property. Dr. Mehta has indicated that if the use was to be approved and he was to .establish his dental practice at the subject location, he would be planning to make improvements to the existing building. At a minimum, he plans on improving the exterior of the building by painting, improving the parking lot, reviewing ingress and egress, and upgrading the restrooms according to code requirements. He has indicated that further improvements to the property could be possible, but that he has no concrete plans at this point. (See January 17, 2008 letter from Dr. Mehta, attached as Exhibit F) However, should the Planning Commission decide to approve the project, staff recommends that the applicant be required to enhance the exterior of the building through the Design Review process. This would include at a minimum high quality, four- sided elevation improvements and parking lot and landscape improvements. ALTERNATIVES Determine that the property fronts on to EI Camino Real and deny the CUP by adopting Resolution No. 4079; 2. Determine that the property fronts on to EI Camino Real and direct staff to draft a resolution with findings of approval and conditions of approval for the CUP; or 3. Take other action as deemed appropriate. Reina Kapadia Elizabeth A. Binsack Assistant Planner Director of Community Development Exhibits: A. Report to the Planning Commission, January 8, 2008 (includes Report to the Planning Commission dated December 11, 2007) B. TCC Section 9297—Definitions C. Map showing properties subject to TCC 9233c(y) D. Letter from McCormick, Kidman & Behrens, dated January 4, 2008 E. Planning Commission Agenda Report of August 14, 2006, Planning Commission Minutes of August 14, 2006, and City Council Minutes of September 5, 2006 F. Letter from Dr. Mehta dated January 17, 2008 G. Revised Resolution No. 4079 S:TCddrPCREPORT%200MCUP 07-020 (710 ECR) - oonlinuadon (2).doa EXHIBIT A Report to the Planning Commission January 8, 2008 (includes report to the Planning Commission Dated December 11, 2007) ITEM #2 Report to the Planning Commission DATE: JANUARY 8, 2008 SUBJECT: CONDITIONAL USE PERMIT 07-020 (CONTINUED ITEM) APPLICANT: DR. ASHOK MEHTA 13711 NEWPORT AVENUE, SUITE 11 TUSTIN, CA 92780 PROPERTY OWNER: DR. SID MIRRAFATI MIRA PROPERTIES, LLC 685 NYES PLACE LAGUNA BEACH, CA 92651 LOCATION: 740 EL CAMINO REAL ZONING: CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) ENVIRONMENTAL STATUS: THIS PROJECT IS STATUTORILY EXEMPT PURSUANT TO THE PROVISIONS OF SECTION 15270 (PROJECTS WHICH ARE DISAPPROVED) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT REQUEST: TO ESTABLISH A DENTAL OFFICE WITHIN AN EXISTING BUILDING FRONTING ONTO EL CAMINO REAL RECOMMENDATION That the Planning Commission adopt Resolution No. 4079, denying Conditional Use Permit (CUP) 07-020 to authorize a dental office located at 740 EI Camino Real. Resolution No. 4079 has been modified since the December 11, 2007 meeting. BACKGROUND The item has been continued from the December 11, 2007, Planning Commission meeting. Correspondence and a Public Records Act Request have been submitted by representatives of the property owner, and the item was continued to give the Planning Commission and City staff time to review and respond to this material. This staff report includes and addresses correspondence between the property owner's counsel and the Planning Commission Report CUP 07-020 January 8, 2008 Page 2 City. Please refer to the staff report ("the Report") dated December 11, 2007, for project specific full details (Exhibit A) as they may not all be reiterated herein. Project Proposal The applicant is requesting approval to establish a dental office in a stand-alone building located at 740 EI Camino Real, also known as Assessor Parcel Number (APN) 401-641- 01. The subject property is located within the Central Commercial (C-2) zoning district, where professional offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to criteria established in Tustin City Code Section 9233(y). The General Plan designation is Old Town Commercial, which allows for retail, professional office, and service-oriented business activities to serve Old Town and surrounding areas. DISCUSSION Letter Dated December 11, 2007 A letter ("the Letter") dated December 11, 2007 was submitted to the City of Tustin Planning Commission and Director of Community Development by Elizabeth L. Marlyn and John Paul Glowacki of McCormick, Kidman & Behrens, LLP on behalf of their client Sayed Mirrafati, M.D., in reference to Conditional Use Permit (CUP) 07-020 on the December 11, 2007, Planning Commission Agenda (Exhibit B). The Letter addresses the Planning Commission Staff Report relative to the project. • In part, the Letter indicates that: the property (740 EI Camino Real) has housed an engineering firm, osteopathic doctor, and chiropractor; the property was built as and continues to function as an office, and it is unlikely that those who wish to use or purchase the building will use it differently. Staff Response: City Business License records for the property do not confirm any of the above mentioned uses with the exception of a chiropractor business. The last business license issued for this property was for EI Camino Chiropractic in 1995. Contrary to what the Letter indicates about the likely use of the property, in a December 5, 2007, meeting with the City staff, the property owner acknowledged that he has received several offers to purchase or lease the property over time, including interest from a coffee house and a salon, which would have served as a retail and/or service retail. In part, the Letter states that the City indicated for a year that they would work with Dr. Mirrafati and that his failure to utilize the property is a result of staff "working with" him. Staff Response: Staff worked with the property owner on a proposal to redevelop the property. The City, specifically the Community Development Department and Redevelopment Agency staff, reviewed a preliminary proposal submitted by the property owner and offered a response in a letter dated August 2, 2004 (Exhibit C). Planning Commission Report CUP 07-020 January 8, 2008 Page 3 This letter issued by the Community Development Department encouraged the property owner to submit further conceptual plans and that staff was willing to provide additional guidance in developing a formal submittal. It was the sole decision of the property owner not to proceed with the project, and no formal application was submitted by the property owner. Furthermore, in 2006, a Conditional Use Permit (CUP 06-014) for a tutoring and counseling facility including associated administrative offices for children and adults (Tutorwhiz), not an office use, was submitted and approved (Exhibit D), thus further invalidating the continuance of the property as an office use. Schools are conditionally permitted within the C-2 District. The CUP 06-014 was approved on October 9, 2006, and received a business license on June 5, 2007. The property owner signed the application stating that the information on the application was true and correctly represented (Exhibit D). The Letter refers to a City requirement in 2006 that the property need be at least fifty percent (50%) retail to operate at the subject location as being imposed by an ordinance effective October 18, 2006. Staff Response: At the time of application submittal for CUP 06-014 in 2006, the 50 percent retail requirement was the existing code requirement, effective since the initial adoption in 1983. The code at the time required the following for all properties in the C-2 District: o An office use is permitted to locate within the C-2 zoning district if: the use is located on any floor above the ground floor; and, occupies less than fifty (50) percent of the total floor area. o An office use may also be permitted anywhere in a building where a Conditional Use Permit was granted. o An office use can be conditionally permitted if: it is located on the ground floor or in more than fifty (50) percent of the total floor area of a building; and, the Planning Commission determines that the office use would be more beneficial than a retail establishment. o These provisions apply to construction of new office buildings and new office occupancies in existing buildings: The ordinance that became effective October 18, 2006, was less restrictive and only applies to offices in the C-2 zoning district fronting on to EI Camino Real or Main Street and is located within the City's Old Town Commercial General Plan land use designation, subject to specific criteria. • The Letter incorrectly states that Planning Staff administratively granted a CUP for Tutorwhiz before there was any retail requirement. Planning Commission Report CUP 07-020 January 8, 2008 Page 4 Staff Response: Consideration of a Conditional Use Permit application requires a public hearing. The Zoning Administrator through a public hearing process adopted Zoning Administrator Action (ZAA) 06-007 approving CUP 06-014 for a tutoring and counseling facility on October 9, 2006, with Condition 2.1 stating that the approval shall not commence before October 18, 2006, when Ordinance No. 1317 (C-2 office provision) becomes effective. Based on information provided with the formal application, the project was not considered to be primarily an office use, but a tutoring and counseling facility with ancillary offices, and as such was expected to bring pedestrian traffic to the area. Therefore, the Zoning Administrator was able to approve CUP 06-014 for a tutoring and counseling facility with its associated offices within an existing building. Any argument that staff was uncooperative with the property owner seems misleading as staff worked with the property owner in supporting and granting approval of the instructional use with ancillary offices at the property. The Letter states that "the CUP remains in effect, but apparently staff does not consider the use to be 'long-term."' Staff Response: A conditional use permit is an entitlement which is granted to the land and does not expire unless such a condition is placed on the approval; the approval for the tutoring facility CUP does not include a time expiration condition. The claim that staff does not consider the use to be long-term is unsupported by evidence or fact. Should "Tutorwhiz" choose to cease its business operation at this location, another tutoring facility could operate within the parameters of CUP 06- 014 or request an amendment thereto. • The Letter states that the property owner found another buyer for the property at a reduced price and entered into escrow, with a condition that Dr. Mehta be permitted to use the property for a dental practice. Staff Response: Based on prior interaction with the City regarding this property, the property owner was aware of the fact that a medical office use was not outright permitted at the subject location based on the letter that was provided in 2004 (Exhibit C). Furthermore, the applicant was also aware of the restriction as evidenced in the property profile submitted by the applicant which states that the City's confirmation is required for a possible medical use (Exhibit E). Regardless, the property owner and prospective buyer entered into escrow for purchase of the subject property, and Dr. Mehta submitted a request in writing requesting confirmation that a dental office could be established at the property in September 2007. The Community Development Department issued a zoning confirmation letter on October 12, 2007, indicating that the medical office use was not outright permitted there and explained the zoning code requirements and criteria that would need to be met in order to approve a conditional use permit for the office use (Exhibit F). This criteria is what is being applied in the review of the current application, CUP 07-020. In a subsequent meeting between the prospective buyer, his agent, and the Community Development Department, Planning Division staff explained the zoning code requirements and indicated that the proposed use is not Planning Commission Report CUP 07-020 January 8, 2008 Page 5 permitted outright and that staff may not be able to support a request to establish a dental office at the proposed location. However, Dr. Mehta decided to proceed with the project by submitting a formal application, which is now known as CUP 07-020 and is being heard before the Planning Commission. Staffs recommendation remains for denial, as outlined in the December 11, 2007, Report to the Planning Commission. • The - Letter dated December 11, 2007 also claims that the property owner has been denied any opportunity to review the planning file for the subject property. Additional correspondence dated December 19, 2007 was .provided indicating the same (Exhibit G). Staff Response: This is not accurate. The City Attorney's office responded to the December 19 correspondence with a letter explaining the time and effort that was required for City staff to compile the files and records and confirming that the records were available for review and copying. The requests made were vast, non-specific and therefore difficult to respond to. Further, the property owner personally viewed the planning files for CUP 07-020 and CUP 06-014 on December 7, 2007, at the Community Development Department, and submitted a Public Records Act Request for several other records. The property owner's legal counsel spent multiple hours on several days reviewing City files and requesting copies. All requested copies were picked up by the applicant's legal counsel on December 26. Conditional Use, Permit 07-020 was continued from the December 11, 2007 Planning Commission meeting to give staff time to review submitted correspondence regarding the item and to respond to the Public Records Request Act. The vast number of records was made available in relatively short period of time. The City Attorney's office of Woodruff, Spradlin & Smart issued a Notice of Determination in response to the Public Records Act on December 13, 2007 (Exhibit H). This letter explained which records were readily accessible and would be made available for review, and which requested items required further clarification in order to be provided. Subsequently, staff has made available the requested items and the property owner and his representatives have reviewed the materials and copied the records they selected. The Letter responds to several items discussed in the December 11, 2007, Report to the Planning Commission. The Letter indicates that a conditional use permit for an office use at this location is not required because the front entrance to the building faces on to EI Camino. Way, not EI Camino Real. The Letter also states that "The City is aware that the property is not on EI Camino Real, since they asked to change the address from EI Camino Way." Staff Response: - Staff believes that the property fronts on to EI Camino Real because .the property has two street frontages, with one of them facing. along El. Camino Real (Please refer to the Map in Attachment'A of the Planning Commission December 11, 2007 staff report). The address was changed from 730 EI Camino Real to 740 EI .Camino 'Real in 2005 by the City's Public Works Department. The Planning Commission Report CUP 07-020 January 8, 2008 Page 6 address change was not initiated by the City, but rather was a response to a citizen request by the property owner of the building at 730 EI Camino Way, due to confusion by the Post Office and Assessor's Office regarding 730 EI Camino Way and 730 EI Camino Real. As a result, the subject property's was assigned a new address on EI Camino Real which does not also exist on EI Camino Way (Exhibit 1). It should be noted however that the Assessor Office property information listed the property as 605 El Camino Real (The City issues addresses within its jurisdiction). Further, the Letter discusses how the proposed project meets the requirements to obtain a CUP. The Letter claims that "The Report. flatly errs in stating that office use lapsed for more than twelve (12) months after adoption of the new retail requirements, as the tutoring and counseling business with its minimal retail area is certainly a predominantly office use as opposed to retail and was granted weeks before the new ordinance took effect." Staff Response: The office use provision was first established in 1983 and applied to any properties zoned C-2, as discussed earlier in this report. The ordinance that took effect in 2006 provided additional flexibility. The last business license issued for this property was for EI Camino Chiropractic in 1995. Further, the property owner signed the development application for the establishment of a tutoring facility and administrative offices and signed, the Agreement .to Conditions of Approval imposed on the tutoring facility project. The application was signed as being true and correctly represented (Exhibit D). Section 9273 (Nonconforming Structures and Uses) of the Tustin City Code states, "if any use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned ... and all future uses shall comply with the regulations of the particular district in which the land or building is located." If the property owner had continued the office use within one (1) year of the past office use, the office use would be considered to be non -conforming. However, since the use lapsed for more than one (1) year, with the discontinuation of the prior office use and the establishment of a tutoring facility; a new office use cannot be reestablished under this code section. It should be noted that the Code allows a building with no structural alterations made therein. to be changed to another use of the same or more restrictive classification upon the securing of a use permit (alteration will be necessary to transform the use from a tutoring facility to a dental office i.e. plumbing improvements). However, granting a use permit to allow such a use would extend the non -conforming status of the property indefinitely, and does not further the land use goals of the City General Plan, as discussed in the Staff Report dated December 11, 2007. The intent of the non -conforming provisions in the City's zoning code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulation until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. The provisions related to retail use on the ground Planning Commission Report CUP 07-020 January 8, 2008 Page 7 floor dates back to 1983 in one form or fashion. To further the non -conformity of a use and/or building may not meet the intent or purpose of anon -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non -conforming use contrary to the standards sets forth in the Zoning Code and goals and objectives of the General Plan. Again, with respect to the tutoring and counseling business, the tutoring and counseling facility was approved as a tutoring and counseling facility for children and adults along with its associated offices. The approval under Zoning Administrator Action 06-007 clearly stated that the authorization is for the establishment of a tutoring and counseling facility including associated administrative offices for children and adults (Exhibit D). The. Letter concludes that the nonconforming use as such should be grandfathered into compliance. However, the instructional facility is not the same use as a medical office and therefore the existing CUP is not applicable to the currently proposed use (dental office). Schools are conditionally permitted uses which are not subject to the restrictions placed upon ground floor office uses on El Camino Real. The Letter continues by addressing the criteria applied from Tustin City Code Section 9272(y)(2). It states -that the subject building was designed for office use and has been used exclusively for office use since at least 1972, as acknowledged by the Report. Staff Response: The Report does not acknowledge that the building was originally designed and exclusively used for office use, since this is unknown. Only two (2) business license records exist for the property prior to Tutorwhiz, for a mortgage business which license expired in 1989 and a chiropractic business which license expired in 1995. Therefore it is unknown if the building "has been used exclusively for office use since at least 1972." Regardless, the previous professional office use ended in 1995 (per City's Business License records). • In part, in response to Subsection (y)(2)(b), the Letter states that "The Report's conclusion that the building is 'a prime location for a retail establishment' is directly contradicted by the numerous potential purchasers and experts." Staff Response: As discussed earlier, Dr. Mirrafati indicated that he had been approached by more than one retailer and/or service {provider to purchase or lease the property. • In part, in response to Subsection (y)(2)(c), the Letter states that the Report explicitly acknowledges that the current use is as an office and that the building's design and orientation are best suited to office use. Staff Response: The December 11, 2007, Report does make these findings. The Report rather indicates that the building may be amenable to a retail use with the addition of storefront elements. Planning Commission Report CUP 07-020 January 8, 2008 Page 8 In part, in response to Subsection (y)(2)(d), the Letter states that dental offices are commonly found in mixed use retail plazas. Staff Response: Staff concurs and often multi -tenant centers are appropriate locations for this type of use. However, the subject property is a stand-alone building not located. within a center. • In part, the Letter states that staff appears to have delayed and then refused to grant a CUP to prevent a long-term use of the property, claiming that "the suggestion of an improper motivation for denying the requested CUP is palpable," and that "pre -condemnation steps" are being taken to drive down the value of the property. The Letter claims long time delays, inconsistent answers, intentional misinterpretation of Code requirements, and denial of access to public records. Staff Response: No evidence exists in support of these severe claims. The Ordinance requiring ground floor retail has been in effect since 1983. A less restrictive ordinance was adopted in 2006. The ordinance was in effect when the owner purchased the property: Dr. Mirrafati was further advised of this requirement in 2004 (Exhibit C). Dr. Mehta was advised of the same in October, 2007 (Exhibit F) and chose to proceed to submit an application. The project at hand was scheduled for public hearing less than six (6) weeks after submittal of the formal application. Conditional Use Permit applications require public hearings and associated notice. These requirements cannot be waived. Staff has maintained consistency in responding to the property owner and prospective buyers that the proposed use requires a CUP and may not be able to be supported by staff. The Report outlines staffs interpretation of the Code with supporting evidence. • The Letter also suggests that the City intends to . condemn and redevelop the, property. Staff Response: This claim has no basis in fact and no supporting evidence. The Redevelopment Agency does not currently have any plans involving the subject property nor does the City. Additional Submitted Items In addition to the letter submitted December 11, 2007, a letter dated December 10, 2007, was also submitted by McCormick, Kidman & Behrens (Exhibit J), which is similar to the December 11 th letter discussed in this report. A letter dated December 20, 2007, was submitted by Jigar Shah of Century 21, on behalf of the applicant, Dr. Ashok Mehta, with information relative to the sale of the property (Exhibit K). A letter dated December 7, 2007, was also submitted by the Chamber of Commerce expressing their views that the project site should include retail use on the ground floor level to complement nearby retail establishments (Exhibit Q. Planning Commission Report CUP 07-020 January 8, 2008 Page 9 CONCLUSION City staffs recommendation on a project is based on the merits of the proposal and code requirements. The Planning Commission is the decision making body and votes based on the facts, materials, testimonies provided at the hearing, and their analysis of the project. A staff recommendation of denial is not a denial in and. of itself, nor is it a pre - condemnation of a property. Staff recommends that the Planning Commission conduct a public hearing and make a determination. Reina Kapadia Elizabeth A. Binsack Assistant Planner Director of Community Development Exhibits: A. Report to the. Planning Commission, December 11, 2007 B. Letter from McCormick, Kidman & Behrens, LLP, dated December 11, 2007 C. Letter from City of Tustin Community Development Department, dated August 2, 2004 D. Zoning Administrator Report dated October 9, 2006 and CUP 06-014 Application related materials. E. Property profile information submitted by applicant December 11, 2007 F. Zoning Confirmation letter to Dr. Mehta dated October 12, 2007 G. Letter from McCormick, Kidman & Behrens, LLP, dated December 19, 2007 H. Letter from Woodruff, Spradlin & Smart, dated December 13, 2007 I. Address Change Letter J. Letter from McCormick, Kidman & Behrens, LLP, dated December 10, 2007 K. Letter from Jigar Shah, dated December 20, 2007 L. Letter from Tustin Chamber of Commerce dated December 7, 2007 M. Revised Resolution No. 4079 N. Letter from Woodruff, Spradlin & Smart dated December 21, 2007 SAUMPCREPORi\2008\CUP 07-020 (760 ECR) - c finuation.dm Exhibit A Report to the Planning Commission, December 11, 2007 ITEM #5 Report to the Planning Commission DATE: DECEMBER 11, 2007 SUBJECT: CONDITIONAL USE PERMIT 07-020 APPLICANT: DR. ASHOK MEHTA 13711 NEWPORT AVENUE, SUITE 11 TUSTIN, CA 92780 PROPERTY OWNER: LOCATION: ZONING: ENVIRONMENTAL STATUS: REQUEST: RECOMMENDATION DR. SID MIRRAFATI MIRA PROPERTIES, LLC 685 NYES PLACE LAGUNA BEACH, CA 92651 740 EL CAMINO REAL CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) THIS PROJECT IS STATUTORILY EXEMPT PURSUANT TO THE ,PROVISIONS OF SECTION 15270 (PROJECTS WHICH ARE DISAPPROVED) OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT TO ESTABLISH A DENTAL OFFICE WITHIN AN EXISTING BUILDING FRONTING ONTO EL CAMINO REAL That the Planning Commission adopt Resolution No. 4079, denying Conditional Use Permit (CUP) 07-020 to authorize a dental office located at 740 EI Camino Real in the Central Commercial (C-2) zone and fronting on to EI Camino Real. BACKGROUND The applicant is requesting approval to establish a dental office in a stand-alone building located at 740 EI Camino Real, also known as Assessor Parcel Number (APN) 401-641- 01 (Attachment A - Location Map). The subject property is located within the Central Commercial (C-2) zoning district, where professional offices fronting onto Main Street or El Planning Commission Report CUP 07-020 December 11, 2007 Page 2 Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to criteria established in Tustin City Code Section 9233(y) (Attachment B). The General Plan designation is Old Town Commercial, which allows for retail, professional office, and service-oriented business activities to serve Old Town and surrounding areas. Site and Surrounding Properties The site is located at the Y -intersection of EI Camino Real and EI Camino Way. The site surroundings include retail and commercial uses onall sides. EI Camino Plaza is located at the west, Tustin Motor Lodge and Makena Square to the south, Galaxy Automotive to the north, and a retail strip center to the east. Public Noticing A public hearing notice identifying the time, date, and location of the public hearing for the proposal was published in the Tustin News on November .29, 2007. Property owners within 300 feet of the site were notified of the hearing by mail; a hearing sign is posted on the site; and, the hearing was posted at City Hall on November 29, 2007. DISCUSSION Project Description The proposed site is improved with an existing single -story, 1,757 square foot building that was relocated to the City in 1972. The applicant proposes to operate his dental practice at the property, which will involve dental care services, orthodontic work, as well as a small retail area to sell and market whitening products, videos for dental hygiene, and dental operatory chairs. The proposed use would require extensive interior plumbing remodel work to the building. The retail area will occupy around 180 square feet, which constitutes approximately 10 percent of the floor area of the facility (Attachment C — Submitted Plans). The proposed hours of operation are 9:00 a.m. to 6:00 p.m. Monday through Friday. The anticipated number of employees is five (dentist, two dental assistants, receptionist, and front office dental secretary). Permitting Requirements The provision relating to office uses within the C-2 district was initially adopted in 1983. The intent of the office use provision was to encourage retail establishments on the ground floor, particularly in Old Town. After a series of interim ordinances adopted by the City Council and workshops held by the Planning Commission, the new office use provision (Code Amendment [CA] 06-004) was recommended for approval by the Planning Planning Commission Report CUP 07-020 December 11, 2007 Page 3 Commission on August 14, 2006, and adopted by the City Council on September 18, 2006. Section 9233(y) of the TCC lists professional and general offices fronting onto Main Street and EI Camino Real and located within the Old Town Commercial General Plan land use designation (which the proposed project qualifies as), as a conditionally permitted use in the C-2 zoning district. However, the office development must meet certain specific criteria outlined in that section. ANALYSIS In determining whether to approve the Conditional Use Permit, the Planning Commission must determine whether or not the proposed use will be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing in or working in the neighborhood or whether it will be injurious or detrimental to property or improvements in the vicinity or to the welfare of the City and the criteria set forth in TCC 9233(y). A decision to deny this request may be supported by the inability to positively make the following findings: A. Pursuant to Tustin City Code Section 9233(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be morecompatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. B. Pursuant to Tustin City Code Section 9233(y)(2), approval -of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building has been occupied as an office since the building was Planning Commission Report CUP 07-020 December 11, 2007 Page 4 relocated to and first occupied in Tustin. However, the office use has lapsed' for more than twelve (12) consecutive months. On October 9, 2006, the Zoning Administrator approved CUP 06-014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of El Camino Real and El Camino Way at the entry to Old Town Tustin make it a Prime location for a retail establishment. The property, with minor modifications, presents a signit!cant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. C. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on El Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its comer location. However, establishment of a dental office at .this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to El Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 Planning Commission Report CUP 07-020 December 11, 2007 Page 5 zoning district is to encourage pedestrian activity in the area. Although the applicant has indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single - use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at a tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. C. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: a. Policies 1.2 and 10.6: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects. The project proposal is for a dental office to fully occupy a single -story building located in an area identified for retail commercial uses. The Old Town neighborhood has been recognized by the City Council and Chamber of Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. CA 06-004 was adopted to address this deficiency and encourage much-needed retail uses in the heart of Old Town Tustin. The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-1), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or El Camino Real and located outside of the Old Town Commercial General Plan land use designation. Reina Kapadia Elizabeth A. Binsack Assistant Planner Director of Community Development Attachments: A. Location Map B. TCC Section 9233 (Central Commercial District) C. Submitted Plans D. Resolution No. 4079 SACdd1PCREPOR"R20071CUP 07-020 (740 ECR).doc Attachment A., Location Map LOCATION MAP PROJECT NO.: CUP 07-020 ennoeec. -v.n cs .+_—:_ - — - . Attachment B Tustin City Code Section 9233 TUSTIN CITY CODE ZONING 9233 The planning commission may prescribe the amount of parking far uses not listed herein. (Ord. No. 969, Sec. 2B,1-20-86) (g) Driveways: Subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2, 84-01) d Use Criteria --Office Development (1) Office developments within the Retail Commercial District (C-1) shall be constructed to conform with the parking standards for retail commercial uses on the first floor area of the building unless otherwise specifically exempted pursuant to the approved conditional use permit (2) Findings, including, but not limited to the following, shall be made by the Manning Commission Prior to approving a conditional use permit %r construction of a building where greater than fifty (60) percent of the total floor area, ar any portion of the ground floor area is designated for occupancy by professional or general offiom- (a) Development or construction of professional or general office buildings would be more compatible with surrounding. now in the area than permitted retail commercial uses on the subject property. (3) Development or construction of buildings restricted to a mixture of uses in which the retail commercial floor area exceeds fifty (60) percent of the total floor area is exempt from oflioe development use criteria. (Ord. No. 167, Sec. 4.7; Ord. No. 896, Sec. 4, 11-21-88) 9293 CENTRAL COMMERCIAL DLs=CT (C-2) a Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be simlar, win only be allowed im the Central Commercial District (Ord. No. 1817, Sec. I>; 9-18-M (1) All uses allowed in the C-1 District, subject to the development and use criteria specified in Section 9232. (a) Reserved (b) Bakeries (c) Bowling alleys (d) Food shop@ (e) Mortuaries (f) Nurseries BEV 1-2007 LU -2-39 TUSTIN CITY CODE ZONING 9233 (g) Professional and general offices not fronting onto Main Street or EI Camino Real, or located outside the Old lbwn Commercial General Plan land use designation. (Ord.,No. 1241, Sec. 1, 7-2-01; Ord. No. 1242, Sec. 2,8-13-01; Ord. No. 1261, Sec. 2, &20-02; Ord. No. 1317, Sec. 11, 9.18-06) (h) . Public utility buildings and uses (except corporation yards) (i) Radio stares (j) Restaurants (k) Shoe shops (1) Studios (Ord. No. 176, Sec- 6; Ord. No. 888, Secs. 1(a), b, 6, 8-1-83) b Development Standards (1) Maximum height 60 feet (2) Minimum building site: 200 [square feet] (3) Maximum lot coverage: 100 percent, less parking and landscaping requirements, subject to General Provisions. (4) Minimum firont yard setback: None, 10 feet when 5rontage abuts. a lot in an "R" District, unless otherwise shown an Zoning Map. (6) Minimum side yard setbacIL- None, 10 feet when side abuts on a lot in an "R" District. (6) Off-street parking: As specified for "C-1" Zone. The planning commission may prescribe the amount of parking for uses not listed herein. (Ord. No. 167, Sec. 4.8, Ord. No. 293, Sec. 2(b) and 3) (7) Driveways: subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2, 8-6-01) c Conditionally Permitted Uses The following permitted uses subject to a use permit: (a) Adult book stares (s-1) Amusement resorts, arcades and private recreational facilities, and video and vending machines and other such contrivances in excess of five (6) which are identical to the principal business. (b) Small animal hospitals or clinics with one (1) caretaker apartment incidental thereto. (1) Off-street parking: 4 spaces per doctor plus one (1) space for each additional employee. (Ord. No. 340, Sec. 2; Ord. No. 362, Sec. 4) (c) Auto repair shops. (d) Billiard parlors and pool halls (1) .Off-street parking: one (1) parking space per 100 square feet of floor space. (Ord. No. 314) REV 1-2007 LU -240 TUSTIN CITY CODE ZONING 9233 (e) Churches, schools and public uses (>) Cleaning and dyeing establishments (g) Drive-in establishments for permitted uses (h) * Figure model studios (i) Garages, public Q) Hotels and motels (kJ Laundries and launderettes (Ord. No. 699, Sec. 2) (1) Massage establishments (Ord. No. 699, Sea 2) (m) Nursery school (1) Maximum height: 30 feet (2) Minimum building site: 10,000 square feet (3) Minimum lot width at property line: 100 feet (4) Minimum Front yard setback None, 10 feet When fiiontage abuts a lot in an "W District„ unless otherwise shown an Zoning Map (b) Minimum side yard setback- None, 10 feet when side abuts on a lot in an "R" District (6) Off-street parking: One (1) space for each staff member plus one (1) loading space for each eight (S) children. Loading epacss shall be located for each cimmiation and shall not interfere with other required parking. (7) Building requirements and indoor and outdoor space required per child are established by the City of Tuatia Uniform: Building Code -and by the state Department of social Welfare. (8) Outdoor play arses shall be screened from surrounding properties by a 6$" high solid wall or fence, except when play areae abut public park or play6ald. (9) Structures proposed for use as a day nursery or,•a nursery, school shall be inspected and approved by the Fire Department prior to occupancy. (Ord. No. 372, Sea. 3 and 4) (10) Driveways: Subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2,94-01) (n) Outdoor markets and outdoor sales establishment (o) Pet shops (p) Rest homes (q) Secondhand sales (r) Service stations (Ord. No. 311) (a) Used car sales lots (t) Other uses which in the opinion of the Planning Commission are of a similar nature REV- 1-2007 1 LU-2-41 TUSTIN CITY CODE ZONING' 9233 (u) Reserved (v) Alcoholic beverage sales establishments subject to. the. following criteria., and the Planning Commission's Guidelines for Alcoholic Beverage Sales Establishments. Off-site alcoholic beverage sales located in a building and permitted business with less than 15,000 square feet of gross floor area and permitted businesses with more than 15,000 square feet of grow floor area where the off-site alcoholic beverage sales area within the building occupies more than 10 percent of the gross floor area, subject to the following minimum distance regulatio®s: (1) 300 feet from any other residentiary zoned or used property. 500 feet from any existing off-site sales establishment. 600 feet from any church, place of worsbgk public or private school. park, Pm ground, clinic, hospital, health care facility or convalescent home. 600 feet from existing on-site sales establishments, except restaurant establish- ments. (2) Minimum distances between off-site sale establishments and, residentially zoned or used property, churches, places of warship, public. or private schools, parks, playgrounds, clinics, hospitals, health care facilities and convalescent homes shall be computed by measuring the distance from the closest entry/tet provided for publie%ustomer access of the off -efts establishment to the property line of any of the above uses, whether inside or outside the city boundaries. (3) Minimum distances between o$' -site sales establishment and another off' -site or on-site sales establishment, except restaurant establisbmenb whether inside or outside city boundaries shall be computed by measuring the distance between the closest exteior structural walls of each use. (4) Specialty stares as defined m Section 9297 of the Tustin City Code shall be exempt from minimum distance regalstioos. (Ord. No. 1237, Sec. 2, 6-4-01) On-site alcoholic beverage exiles establishments except restaurant establishmeata subject to the following minimum distance regulations: (1) 1,000 feet from any residentiary zoned or used property. 1,000 feet fium any other existing on-site except for restaurant estahlishments or off-site sales establishments. 1,000 feet from any church, place of worship, public. or private school, park, playground, clinic, hospital, health care facility or convalescent home. (2) Minimum distances between on-site sale establishments except far restaurant establishments and; residentially zoned or used property, churches, places of worship, public or private schools, parks, playgrounds, clinics, hospitals, health care facilities and convalescent homes shall be computed by measuring the distance from the closest exterior wall of the on-site establishment to the property line of any of the above. uses whether inside or outside the city boundaries. REV. 1-2007 LU -2-42 TUSTIN CITY CODE ZONING. 9238 (3) Minimum distance@ between on-site sales establishments and another off-site or on-site sales eetablisbment except restaurant establishments whether inside or outside city boundaries shall be computed by measuring the distance between the closest exterior structural walls of each use. (Ord. No. 920, Sec. 2,11-19-84; Ord. No. 981, Sec. 4, 61-87; Ord. No. 1101, Sec. 1F, 11-16-92; Ord. No. 1161, Sec. 1B, 1-2-96; Ord. No. 1236, 12, 6-19-00) (w) Bowling alleys (z) Hotels and motels (y) Professional and general offices fronting onto Main Street or EI Camino Real and . located within the Old lbwn Commercial General Plan land use designation, stddect to the use criteria for office development provided herein: (1) Professional and general offices proposed at the ground floor level or that are greater than fifty (60) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting docrmrenta- tion and evidence, that an office use would be mare compatible with the ezWdzkg, and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, 7botin City Code, and any Tustin Community Redevelopment Agency project Area Redevelopment Plan than a retail commercial use on the suldect property. .(2) Approval o(pr ohesionel and general otos uses shall meet one (1) or more of t he Mowing criterion: a. The pmpoeed use is to be located in an existing building y designed, built, and occupied as offiices or converted to office use . pursuant to an approved building permit. b. The proposed use is to be.located in an axis ft building that because of its design and orientation is impractical to modify or alter to a000nnmodste retail establishments. C. The proposed use is to be located in an existing building requiring signa- cant reconstruction that is not economically feasible or practical to acco- modate retail establishments. d. The proposed use is to -be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. e. The proposed use is determined to be beneficial, complemen}a,, and compatible with surrounding neighborhood and nearby retail establish. ments. (Ord. No. 1242, Sec. 3, 8-13-01; Ord. No. 1261, Sec. 2, 6-20-02; Ord. No. 1817, Sec. IL 9-18-06) (z) Fortune-telling businesses as defined by Section 3811 of the Tutin City Code: xav 1-20W LU -2-43 TUSTIN CITY CODE ZONING 9233 (aa) Convenience staves. (Ord. No. 981, Sec. 3,5-4-87) (bb) Bulk vending machines, subject to standards contained ig the C-1 District regulations, Section 9232b. (Ord. No. 993, Sec. 6, 9-8-87) (cc) Large collection facilities, subject to standards contained in the C-1 District regula- tions, section 9232a.2. (Ord. No. 993, Sec. 7, 9-8-87) (dd) Adult entertainment booking agency, as defined in section 3731 of this Code. (Ord. No. 175, Sec. 6; Ord. No. 699, Sec. 2; Ord No. 888, Secs. 1(6), 7, 8-1-83; Ord. No. 958, Sec. 2,1-20-86; Ord No. 1170, Sec. 2, 6-3-96) (se) Specialty staves. (Ord. No. 1237, Sea 2, 6-4-01) 00 Resarvad. (Ord. No. 1261, Sea 2, 6-20-02) d Development Standards for Conditionally Permitted Uses (1) As specified in section 9233b above, unless otherwise indicated, with rear yard and off-street parking requirements as specified in the use permit. (2) Hotel o$ street parking requirement is 1 space for each 2 guest rooms. (Ord. No. 293, Sec. 3) e Reserved (Ord No. 157, Sec. 4.8; Ord. No. 896, Sec. 8,1121-83; Ord No.. 1241, Seo. 2, 7-2-01; Ord. No. 1242, Sea 4, 8-13-01; Ord No. 1261, Sea 29 5.204% Ord No. 13171, Sec. IL 9-18-06) 9234 HEAVY COMAERCIAL DISTRICT (C-3) a Permitted Uses None but the following uses, or uses which in the opinion of the.Planning Commission are similar, will be allowed in the Heavy Commercial District (C-3): (1) All uses listed in the C-2 District, except schools, churches, and outdoor sakes. establisbment (2) Electronic plants within a budding (3) Research plant (4) Secondhand sales within a building (5) Wholesale stores and storage within a building (6) Off-site alcoholic beverage sales located within a building and permitted business with at least 16,000 square feet of gross floor area and where the alcoholic beverage sales area within the building occupies no more than 10 percent of the gross floor area (Ord. No. 1101, Sec. 1B,-11-16-92) REV. 1-2007 LU -2-44 TUSTIN CITY CODE ZONING 9234 b Development Standards for Permitted Uses (a) Maximum height: 50 feet (b) Minimum building site: 2,000 square feet RVVI 1-2007 LU -2-44.1 Attachment C Submitted Plans .- OVA Z .o -,Q .o -,z I r r z _0 W 0 z C a W IE 0 Z a T T Attachment D Resolution No. 4079 RESOLUTION NO. 4079 A RESOLUTION OF THE PLANNING COMMISSION DENYING CONDITIONAL USE PERMIT 07-020 TO AUTHORIZE A DENTAL OFFICE LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2) ZONE AND FRONTING ONTO EL CAMINO REAL The Planning Commission of the City of Tustin does hereby resolve as follows: A. That a proper application, Conditional Use Permit 07-020, was filed by Dr. Ashok Mehta, requesting authorization to establish a dental office in an existing stand-alone building at 740 EI Camino Real. That the property fronts onto EI Camino Real, is located in the Central Commercial (C-2) zoning district, and is designated as Old Town Commercial by the General Plan land use map; B. That a public meeting was duly called, noticed, and held for said application on December 11, 2007, by the Planning Commission; C. That the project is categorically exempt pursuant to Section 15270 (Projects Which are Disapproved) of the California Code of Regulations (Guidelines for the California Environmental Quality Act); D. That pursuant to Tustin City Code Section 9233(y), professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to certain use criteria; E. That the Planning Commission has considered the matter and determined that the proposed project does not meet finding requirements needed to support the conditional use permit, in that: Pursuant to Tustin City Code Section 9233(y)(1), professional offices proposed at' the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in Resolution No. 4079 Page 2 implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building has been occupied as an office since the building was relocated to and first occupied in Tustin. However, the office use has lapsed for more than twelve (12) consecutive months. On October 9, 2006, the Zoning Administrator approved CUP 06-014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of El Camino Real and El Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. C. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on El Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. Resolution No. 4079 Page 3 d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to El Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. . The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district is to encourage pedestrian activity in the area. Although the applicant has indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at a tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. 3. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: 4. Policies 1.2 and 10.6: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects. The project proposal is for a dental office to fully occupy a single - story building located in an area identified for retail commercial uses. The Old Town neighborhood has been recognized by the City Council and Chamber of ' Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. CA 06-004 was adopted to address this deficiency and encourage much-needed retail uses in the heart of Old Town Tustin. Resolution No. 4079 Page 4 The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-9), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or El Camino Real and located outside of the Old Town Commercial General Plan land use designation. II. The Planning Commission hereby denies Conditional Use Permit 07-020 to authorize a dental office in an existing building at 740 EI Camino Real in the C-2 zoning district and Old Town Commercial General Plan designation. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission, held on the 11 th day of December, 2007. JOHN NIELSEN Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK., the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4079 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 11 th day of December, 2007. ELIZABETH A. BINSACK Planning Commission Secretary Exhibit B Letter from McCormick, Kidman & Behrens, LLP, dated December 11, 2007 H. L. (MIKE) MCCORMICK• ARTHUR G. KIOMAN• RUSSELL G. BEHRENS• SUZANNE M. TAGUE.t DAVID D. BOYER• DANIEL J. PAYNE• BRADLEY O.�PIERCE- ELIZABETH L. MARTYN• JOAN J. BENNETT BOYO L. HILL EDDY R. BELTRAN MICHAEL D. CARTER HANNAH BENTLEY - TRAM T. TRAM JOHN P. GLOWACKI - •A PROFESSIONAL CORPORATION *CERTIFIED SPECIALIST.- PROBATE ESTATE PLANNING 6 TRUST LAW THE STATE BAR OF CALIFORNIA BOARD Of LEGAL SPECIALIZATION -of COUNSEL MCCOI3MICK, KIDMAN & BEHRENS, LLP LAWYERS 650 TOWN CENTER DRIVE SUITE 100 COSTA MESA, CALIFORNIA 92626 TELEPHONES (714) 755-3100 1600) 755-3125 FAX (714) 755-3110 www.mkblawyers.coln December 11, 2007 Via Facsimile: 714-573-3113 and U.S. Mail Chair and Members Planning Commission Elizabeth A. Binsack Director, Community Development Department City of Tustin 300 Centennial Way Tustin, California 92780 LAGUNA HILLS OFFICE: 23601 MOULTON PARKWAY SUITE 220. LAGUNA HILLS. CALIFORNIA 62653 TELEPHONE 4949) 454-2205 Re: Sayed Mirrafati, M.D. CUP 07-020 — December 11, 2007, Planning Commission Agenda Dear Chair, Commissioners, and Ms. Binsack: Our office represents Sayed Mirrafati, M.D., and his company, Mir roperties, LLC, Which owns the property located at 740 El Camino Real in Tustin, Califorma. There is presently pending an application for a Conditional Use Permit ("CUP") for that roperty to be used for a dental practice by Ashok Mehta, D.D.S. The staff is recommending denial of that CUP. This letter points out why that recommendation legally is incorrect and unsupported by the Tustin Municipal Code and the evidence. Therefore, we ask that this use be granted as of right or that staff be directed to administratively grant a CUP. The purpose of this letter is to provide you with the evidence necessary for you to direct staff to approve this use in whatever manner is appropriate. First,. let us provide some background not disclosed in the Staff Report. There has been some confusion in staff understanding our request for the files and so we reserve all rights to provide additional information and argument. MCCORMICx, KIDMAN & BEHRENS, LLP LAWYERS Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. December 11, 2007 Page 2 Dr. Mirrafati is a cosmetic surgeon who purchased this property in August 2004; at that time it was being used as professional offices for an engineering firm. Formerly, the property housed an. osteopathic doctor and a chiropractor. The property, was built as and continues to function as one, which houses professional and offices uses. Therefore, it is unlikely that those who wish to use or purchase the building will use it differently. Before he purchased the property, Dr. Mirrafati confirmed with Planning Staff (specifically, "Brad") that the property could be used for physicians' offices. In 2005, he provided the City with architectural drawings to locate his office there. The City indicated for the next year that they would, "work with" Dr. Mirrafati, and that there were pending amendments to the "Code which would support his proposal and he would, "come out of the. circle." In, fact, that was ' not the case; as explained in the Staff Report, new, more restrictive office use provisions were pending.' Any argument. that Dr. Mirrafati failed to utilize the property is the result of Staff, "working with" him to allow its use. By 2006, Dr. Mirrafad had determined that he would sell the property because of problems working with the City. However, when buyers approached the City, they were told that they would have to have at least fifty percent (50%) retail to be able to operate at the location. This occurred despite the fact that the ordinance imposing such requirement did not go into effect until October 18, 2006. In fact, before that date (i.e., before there was any retail requirement) Planning Staff administratively granted a CUP for the property for Tutor Whiz. Tutor Whiz is not a retail operation, and only incidentally sells study materials as part of its program. This CUP remains in effect, but apparently staff does not consider the use to be "long - At this point, Dr. Mirrafati finally has found another buyer for the property (although at a reduced price). Dr. Mirrafati and Dr. Mehta have finalized a purchase -sale agreement for the property and have entered into escrow. One of the conditions of the sale is that Dr. Mehta be permitted to use the property for a dental practice. To that end, he has applied for this CUP. We have recently received the Report to the Planning Commission regarding the application, although; as discussed in detail below, our client has been denied any opportunity to review the planning file for the subject property. Our review of the Report shows that a number of aspects of the Report are unacceptable and its recommendation that the CUP be denied is not supported by law or fact. 1. No CUP May be Required Here. No CUP is necessary for Dr. Mehta to operate a dental practice at the subject property. Tustin City Code Section 9233, subsection (a)(1)(g) addressed uses permitted as of right, and includes "professional offices", which do not front on El Camino Real. In contrast, Section MCCORMIcx, KIDMAN & BEHRENS, LLP LAWYERS Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. December 11, 2007 Page 3 9233, subsection (c), sets forth Conditionally Permitted Uses for the Central Commercial District that the . subject property occupies. Section 9233, subsection (c)(y) specifically regulates, "Professional and general offices fronting onto Main Street or El Camino Real ... " We have found no definition of "fronting" in the Tustin Municipal Code, and so we attribute to it its common meaning, i.e., that the front entrance of the building is on that street, particularly since the point of the new subsection is to attract retail customers. While the subject property's present address has been changed to El Camino Real, the reality is that the building on the property does not front on El Camino Real. Instead, the front entrance of the building faces southeast, directly onto El Camino Way and on the opposite side of the building from El Camino Real, which runs behind the building. The northeast facade of the building, which directly faces El Camino Real, does not have any large windows or would not be allowed for signage. The parking lot is to the south and southeast of the building, with driveways from El Camino Way and El Camino Real. The letter submitted by the Chamber of Commerce notes that "retail store fronts attract pedestrian traffic." As can be seen, that is not the case here. The City is aware that the property is not on El Camino Real, since they asked to change the address from El Camino Way. About a year ago, the City of Tustin approached Dr. Mirrafati and asked him to change the building's address because the address (730 El Camino. Way) allegedly was causing confusion with the mail delivery of another building in E1.Camino Way. When Dr. Mirrafati purchased the building, the address was 730 El Camino Way, however, the chiropractor who had owned the building had added the address of 605 El Camino Real The Report assumes, without discussing, that the subject property fronts onto El Camino Real. Plainly, the building does not front onto El Camino Real and, as such, the property is not subject to the requirement of a CUP for a dental practice. Rather, Section 9233, subsection (a)(1)(g) applies and the dental practice is a permitted use. Therefore, the use is one permitted as of right and denying the CUP is irrelevant to any owner's ability to operate a professional office at the subject property pursuant to the Tustin Municipal Code. 2. Dr. Mehta Has Met the Requirements to Obtain a CUP. Even if a CUP were necessary to operate a professional office at the subject property, the requirements for issuing a CUP have been met. The Report fails adequately to address the factors set forth in Tustin Municipal Code Section 9233, subsection (y). As to subsection (y)(1), the professional use would be absolutely consistent with existing uses. The Report acknowledges a history of office use as far back as 1972. Office use continues to the present day, as the building is presently occupied by a tutoring and counseling office. The Report flatly errs in stating that office use lapsed for more than twelve (12) months after adoption of the new retail requirements, as the tutoring and counseling business with its minimal retail area is McCoRxicx, KIDMAN & BEHRENS, LLP LAWYERS Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. December 11, 2007 Page 4 certainly a predominantly office use as opposed to retail and was granted weeks before. the new ordinance took effect. As such, pursuant to Tustin City Code Section 9273, the purportedly nonconforming use is "grandfathered" into compliance. Indeed, the present building is not amenable to retail use. Subsection (y)(2) sets forth five criteria, "one or more of which must be met to support a CUP for the proposed professional office use. Satisfying any one of these elements justifies granting the CUP and there is no "inability to positively make" the necessary finding as to any of the five criteria a. Subsection (y)(2)(a) states• "The proQosed use is to be located in an existing building. originally designed built and occupied as offices or converted to office use vursuant to an approved building_permit." This building was designed for office use and has been used exclusively for office use since at least 1972, as the Report acknowledges. The current use is predominantly as offices. There has been no lapse of any length of time from the office use. The Planning Commission already approved a CUP for the tutoring and counseling business, which is substantially similar to the proposed dental practice; in fact, the proposed 'use would likely generate more retail business than the present use. b. Subsection (y)(2)(b) states, "The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments." Here, the building faces directly away from, and lacks any entrance or, even windows facing, El Camino Real. It is unreasonable to conclude that such a facade would entice retail foot traffic. The Report's conclusion that the building is a "prime location for a retail establishment" is directly contradicted by the numerous potential purchasers and experts that Dr. Mirrafati can identify. who would testify that there are significant obstacles preventing any predominantly retail use of the building. The Report here explicitly acknowledges, as stated above, that the present use is an office use, even though immediately above the Report purports to rely on the statement that the current use is retail. The Report's conclusion is simply unsupported by the facts. c. Subsection (y)(2)(c) states, "The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or vractical to accommodate retail establishments." This is satisfied here because the existing building would require significant reconstruction to accommodate any retail use and it not economically feasible. As noted above, numerous potential purchasers and experts will testify that predominantly retail uses are not practical absent significant reconstruction. The Report acknowledges that, "the building is currently oriented towards the interior of the lot," and relies on the notion that "the addition of some storefront elements along the elevation of El Camino Real could feasibly transform the structures to accommodate retail." This conclusion is simply unsupported in fact given the design of the building. Placing a sign on an otherwise bare wall — essentially what the McCoRMIc$, KIDMAN & BEHRENS, LLP •� LAWYERS Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. December 11, 2007 Page 5 Report suggests - will not transform this building which, in its design and prior use, is shown to be clearly for offices, into retail space. Once again, the Report explicitly acknowledges in its comments on this element that the current use is as an office and that the building's design and orientation are best suited to office use. d. Subsection (y)(2)(d) states, "The proposed use is to be located in a multi --tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to We of use hours of operation convenience, and parking demand." In its analysis,._ the Report conveniently and inexplicably ignores the fact that the nearby `retail" plazas on which the Report relies to justify denying the CUP actually contain multiple dental practices and a chiropractic office. Such offices are commonly found mixed in among retail establishmentsacross southern California. Certainly these, uses are ancillary to the remaining mixed uses in terms of type of use (there are other professional offices), hours of operation (which are similar, if not identical, to most retail establishments), convenience, and parking. (The Report omits any parking analysis leading to the conclusion the parking is sufficient as was the case with the CUP for Tutor Whiz). e. Subsection (y) (2) (e) states, "The proposed use is determined to be beneficial, complementary and compatible with surrounding neighborhood and nearby retail establishments." The report suggests, in analyzing subsection (y) (2) (e), that a dental practice would not attract "multi -trip retail" customers to the extent that a travel agency or tutoring facility would attract. This is mere conjecture. One might just as easily conclude. that patrons of dental offices do visit additional businesses in the same trip, and. there is certainly no support for the notion that no one is ever dropped off at a dental practice as a child might be a tutoring facility. The conclusion is unfounded. There is no inability here to find positively that the proposed use is beneficial, complementary, and compatible with surrounding uses. As noted above, there are already professional offices mixed in among the surrounding retail uses, specifically including a dental practice. 3. Staff Appears to Have Delayed and Then Refused to Grant a CUP to Prevent a Long Term Use that Would Require Payment of Relocation Costs in the Event of Acquisition of the Property. Throughout the Report, the Planning Commission suggests that the dental practice would "not be more beneficial in implementing applicable land use policies" (page 3), "lengthen the no use indefinitely and hinder the potential for retail or redevelopment" (page 4), "necessitate tenant improvements . impairing the opportunity for retail at this location in the reasonable and foreseeable future" (page 4). Taken in its entirety in light of the specific points lacking support cited above, as well as the overall lack of depth in the analysis of the Report, and considering that Dr. Mirrafati was refused the opportunity to review the public records in the planning file, the suggestion of an improper motivation for denying the requested CUP. is ' MCCORMICH, KIDMAN & BEHRENS. LLP LAWYERS Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. December 11, 2007 Page 6 palpable. We do not know what the Planning Commission's motivations are, but it is clear that the Report on its face does not justify denying the requested CUP. A cause of action lies where a public agency takes pre -condemnation steps that drive down the value of a property. At the time Dr. Mirrafati purchased the property, the previous owner also was approached by the developer of the nearby strip center. The developer determined not to make an offer on the property because he could not acquire the motel, but staff repeatedly has indicated that the City or RDA is interested in acquiring the property because it is the "gateway" to the area. The long time delay, inconsistent answers, intentional misinterpretation of the Code requirements, and finally denial of access to public records strongly suggests there is an improper motive here. Now, the agreed sale price represents a . significant decrease in value since the Planning Commission began denying -other similar CUP's in the same area. If the City intends to condemn this property outright, then it has no right to drive down the property's value in advance without paying just compensation for what amounts to a pre -condemnation taking of private property. The repeated references to redevelopment in the Report suggest this might be the underlying intent. That is absolutely not a proper reason for denying the requested CUP. Very truly yours, MCCORMICK, KIDMAN & BEHRENS, LLP qla4q- ala__J� Elizabeth L. Martyn John Paul Glowacki ELWJPG:ggg Copy: Sayed Mirrafati, M.D. David Kendig (via electronic mail at dkendigOwss-law.com ) Z:\Users Dat►\ggoodreau\mirrafat Vts\Leter to PC - draft redlined.doc Exhibit C Letter from City of Tustin Community Development Department, dated August 2, 2004 F] �Ty p his Uommunity Development Department CiIty or Tustin August 2, 2004 300 Centennial Way Tustin, CA 92780 Sid J. Mirrafati, M.D. 714.573.3100 1101 Bryan Avenue, Suite G Tustin, CA 92780 RE: 705 EL CAMINO REAL (APN 401-641-02) Dear Dr. Mirrafati: Thank you for your letter and preliminary plans 'received on July 7, 2004, requesting information related to property at 705. EI Camino Real also known as Assessor Parcel Number 401-641-01..In your letter and preliminary plans, you indicated that you plan to build a two-story 5,166 square foot office building in which the bottom floor will be occupied by your medical office and the second floor by business offices. You clarified per our conversation at the Planning counter that the existing commercial building would be demolished and replaced with the new building. The property is currently improved with a commercial structure relocated to the site in 1972 and is occupied by an office use. The property is designated "Old Town Commercial" by the Tustin General Plan, zoned Central Commercial and Combining Parking District (C -2P), and located within the Town Center Redevelopment Project Area. The project would need to comply with all development regulations, such as permitted and conditionally permitted . uses, setbacks, parking, design review provisions, and processes of the Tustin City Code (attached). Please note that Tustin City Code Section 9233.a(1)(g) allows for professional offices to be established in C -2P district provided that the office use is located above the ground floor and occupies less than fifty (50) percent. of the total floor area. Office uses located on the ground floor or in over fifty (50) percent of the total floor area would require approval of a Conditional Use Permit. Tustin City Code 9233.e. requires findings to be made prior to the approval of a Conditional Use Permit for a ground floor office use. The findings would need to include supporting documents and evidence stating that an office use would be more compatible with the existing and planned uses within the vicinity than a retail commercial use on the subject property and that office use would be more beneficial in implementing applicable land use policies, such as the General Plan, and the Redevelopment Plan. Together, these documents seek to revitalize Old Town and encourage more retailing and pedestrian activity in Old Town. As I Dr. Mirrafati August 2, 2004 Page 2 of 2 such, staff would not support ground floor office space. Your proposal should be revised to include 100 percent retail uses on the ground floor. When designing your project, please consider a site layout and architectural style that is similar to other structures in Old Town. For example, the new building should front onto EI Camino Real and EI Camino Way with large storefront windows along both the front and side elevations. Parking and access should be located to the rear. The architectural style should be compatible to other commercial structures in Old Town particularly those located at the intersection of Main and EI Camino Real and the upcoming development located at 14001 Newport Avenue. Community Development and Redevelopment Agency -staff would be happy to review any schematic or conceptual. plans you may have and provide additional guidance to assist you in developing a formal submittal. With more detailed information, we will also be able to provide additional information regarding the process, timing, and fees that would 'be associated with the project. If you have any questions, please call me at 714-573-3174. Sincerely, Justina Willkom Associate Planner Attachments: 1. Tustin City Code Section 9233 (C -2P) 2. Tustin City Code Section 9251 (Combining Parking District) 3. Tustin City Code Section 9272 (Design Review) cc: Karen Peterson POD: Zoning Letter Notebook S:1CddUUSTINAIcurrent planninglLetters-Memos1730 EI Camino Real.doc Exhibit D Zoning Administrator Report dated October 9, 2006 and CUP 06-014 Application related materials. INr) x APN No.: 901 -641 -OI Project No.: CLIP 06-019 Approval 12ate: io-Lg-o6 Address: 740 �1, CAMINO SAL 1, ® Notice of niscretionarq Approval 2, ® Agreement to Conditions Imposed 3, ® resolution( s) / ZA Action �, exhibits; ® plans ❑ 4 - 5ampl es of Materials Z+- photos 5, ® 5taff keport( s) / liirector's Approval letter 6, ® environmental postings 1. ® Correspondence 8, ® Legal Notice/ Padius Map/ Mailing Labels 9. ® f itle deport 0, Application; M Pevelopment Application. Form , Campaign 5tatement ® environmental Assessment Form S:\Cdd1FORMS\CurrentPlanning\filing Index.doc RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Director of Community Development 300 Centennial Way Tustin, CA 92780-3767 Space Above This Line For Recorder's Use Only AGREEMENT WITH CONDITIONS OF APPROVAL DISCRETIONARY PERMIT APPROVAL 1. Project Name: 2. Name of Applicant(s): 3. File Number: 4. Zoning Administrator Action No.: 5. Assessor's Parcel Number(s) of Property: 6. Street Address of Property: 7. Legal Description of Property: 8. Type of Discretionary Permit:_ Tutoring and counseling facility Drs. Naren and Anne Mehta CUP 06-014 06-007- 401-641-01 740 EI Camino Real Exhibit "A" Conditional Use Permit Notice is hereby given that a discretionary permit was approved by the City of Tustin for the Project at the Property, as described above. The discretionary permit was approved subject to certain specified conditions of approval which apply to the Property and to the use of the Property. The Prooerty Owner agrees to these conditions of approval and acknowledges that these conditions of anoroval run with the land and constitute express limitations and restrictions on the use of the PrOlperty. These conditions of approval are binding on all persons who own or occupy the Property. A copy of the discretionary permit the conditions of approval are on file in the Office of the Director of Comm �tYopqnent of the City of Tustin. OWNE Date: _ 1, /it /d Date: Date: Notes: Legal Description of Property must be attached as Exhibit "A" Signatures of Owner(s) must be acknowledged before a notary public. Acknowledgment State of California County of Orange On _ I o U Li �'p U , before me, Notary, personally appeared _S i Af) rQ VI1 nrno:C-:,�,' personally known to me -OR- (proved to me on the basis of satisfactory evidence) to be the perso whose name*&are subscribed to the within instrument and acknowledge that &he/they executed the same inis er{th ' capacity( eir authorized and that by ti er/their signatur*4 on the instrument the persop< or the entity upon behalf of which the persorg<acted, executed the instrument. WITNESS my hand and official seal. (Seal) AUZA CHOWHAN-FM CMW*Wn * 1673208 SignatureUotary Public -: �rn — C011101no Oronpe County MY Comm. Expkft Jun 0, 201 howl An - Pad-, PRINT NAME AGREEMENT TO CONDITIONS IMPOSED I, the undersigned, hereby agree to comply with all conditions imposed by the Community Development Department and/or Zoning Administrator of the City of Tustin on approval of Conditional Use Permit 06-014 with conditions as stated in Zoning Administrator Action 06-007 Exhibit A attached to the letter dated October 9, 2006. dIIt / aren Mehta, Applicant Uney Mirrafati -"c ira Properties, LLC ZONING ADMINISTRATOR ACTION 06-007 CONDITIONAL USE PERMIT 06-014 740 EL CAMINO REAL The Zoning Administrator of the City of Tustin does hereby resolve as follows: I. The Zoning Administrator finds and determines as follows: A. That a proper application for Conditional Use Permit 06-014 was filed by Dr. Naren and Dr. Anne Mehta, on behalf of Tutorwhiz, Inc., requesting authorization to establish a tutoring and counseling facility including associated administrative offices for children and adults in a stand-alone building at 740 EI Camino Real. B. That the proposed land use is consistent with the Tustin City Code and General Plan. The site is zoned Central Commercial (C-2) and the land use is designated by the General Plan as Old Town Commercial, which provides for a variety of public, institutional, retail, office, and commercial uses, including instructional facilities. The project is consistent with the Air Quality Sub -element of the City of Tustin General Plan. C. That the City Council adopted Ordinance No. 1317 authorizing the Zoning Administrator to consider office uses on the ground floor with the approval of a Conditional Use Permit. D. That a public hearing was duly called, noticed, and held for Conditional Use Permit 06-014 on October 9, 2006, by the Zoning Administrator. E. That the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use, nor be injurious or detrimental to the property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin in that: 1) The proposed use, as conditioned, would not be detrimental to surrounding properties in that the use would occur entirely within the building and the number of instructors and clients and scope of operations for the proposed use can be supported by the proposed building and site design, and would be compatible with the uses on the surrounding properties. 2) The proposed tutoring sessions, based upon a maximum of four (4) instructors and eight (8) adult students, or thirty-two (32) children students, can be accommodated by the existing number of parking spaces required for the approved use. Zoning Administrator Action Go -007 October 9, 2006 Page 2 3) As conditioned, a maximum occupant load of thirty-six (36) persons has been determined to be consistent with the California Building Code related to accessibility requirements. 4) As conditioned, the proposed use would not create a noise impact on the surrounding neighborhood since the instruction would be entirely within the building and would comply with the Tustin Noise Ordinance. 5) The tutoring facility would generally operate from 11:00 a.m. to 7:00 p.m., Monday through Thursday, 9:00 a.m. to 12:00 p.m. on Saturday, and be closed Friday and Sunday, which is consistent and compatible with the hours of operation for other commercial uses in the area. F. This project is Categorically Exempt pursuant to Section 15301 (Class 1) of Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Zoning Administrator hereby approves Conditional Use Permit 06-014 authorizing a tutoring and counseling facility for children and adults along with its associated offices in a stand-alone building at 740 EI Camino Real, subject to conditions attached hereto. PASSED AND ADOPTED by the Zoning Administrator of the City of Tustin at a regular meeting held on the 9t' day of October, 2006. ELIZABETH A. BINSACK ZONING ADMINISTRATOR ELOISE RRIS RECORDING SECRETARY Zoning Administrator Action 0, ,07 October 9, 2006 Page 3 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELOISE HARRIS, the undersigned, hereby certify that I am the Recording Secretary of the Zoning Administrator of the City of Tustin, California; that Zoning Administrator Action No. 06-007 was passed and adopted at a regular meeting of the Tustin Zoning Administrator, held on the 9t' day of October, 2006. ELOISE. HAARIS RECORDING SECRETARY t EXHIBIT A ZONING ADMINISTRATOR 06-007 CONDITIONAL USE PERMIT 06-014 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the date stamped October 9, 2006, on file with the Community project Development Department, - as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve subsequent minor modifications to plans during plan check if such, modifications are consistent with provisions of the Tustin City Code. (1) 1.2 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.3 All conditions in this Exhibit shall be complied with prior to the start of classes or as specked, subject to review and approval by the Community Development Department. (1) 1.4 Approval of Conditional Use Permit 06-014 is contingent upon the applicant and property owner signing and returning. to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk -Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Any violation of any of the conditions imposed is subject to the payment of a civil penalty of $100.00 for each violation, or such other amounts as the City Council may establish by ordinance or resolution, and for each day the violation exists, subject to the applicable notice, hearing, and appeal process as established by the City Council ordinance. (1) 1.6 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. SOURCE CODES (1) STANDARD CONDITION (5) REQUIREMENTS AGENCY (2) CEQA MITIGATION (3) UNIFORM BUILDING CODES (7) LANDSCAPING POLICY EXCEPTIONS GUIDELINES (4) DESIGN REVIEW *** EXCEPTIONS Exhibit A ZA Action 06-007 Page 2 (1) 1.7 As a condition of approval of Conditional Use Permit 06-014 the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (**") 1.8 Conditional Use Permit 06-014 may be reviewed annually, or more often N deemed necessary by the Community Development Department, to ensure compatibility with the area and compliance with the conditions contained herein. USE RESTRICTIONS (***) 2.1 The proposed office and tutoring use shall not commence prior to October 18, 2006, when Ordinance No. 1317, which authorizes office use with the approval of a Conditional Use Permit by the Zoning Administrator, shall become effective. (**") 2.2 The maximum number of students and instructors within the facility at any given time shall be as follows: • 4 instructors AND 32 children; OR • 4 instructors AND 8 adult students; OR • A combination thereof using the ratio of 1 space/instructor, 1 space/8 children, and 1 space/2 adult students. Any request to modify the maximum number of students and/or instructors shall require the applicant to provide property owner permission, a parking summary of the site showing the additional parking spaces, and shall be subject to the Community Development Director approval. The maximum occupant load permitted by CUP 06-014 shall be posted on the wall by the exit door in a conspicuous location. (1) 2.3 Each class shall be concluded to provide sufficient time for attendees of the prior class to vacate the site prior to arrival of attendees of the next class. (***) 2.4 No daycare use, as defined by the California Building Code, shall be permitted unless approved by the Community Development Director. Exhibit A ZA Action 06-007. Page 3 BUILDING (3) 3.1 At the time of building permit application, the plans shall comply with the 2001 California Building Code (CBC), 2001 California Mechanical Code (CMC), 2001 California Plumbing Codes (CPC), 2004 California Electrical Code (CEC), California Title 24 Accessibility Regulations, 2005 Title 24 Energy Regulations, City Ordinances, and State and Federal laws and regulations 2005 Edition. (1) 3.2 Building plan check submittal shall include the following: Seven (7) sets of construction plans, including drawings for mechanical, plumbing and electrical. (***) 3.3 Prior to the establishment of the tutoring use at the site, the applicant shall re -stripe the parking lot as per the approved plans, with applicable permits issued by the Building Division. Note on plans that no field changes shall be made without prior approval from the Building Official and architect or engineer of record. The plans submitted shall indicate that restrooms . are accessible to persons with disabilities as per State of California Accessibility Standards (Title 24). Plumbing fixture units are required to comply with the 2001 California Plumbing Code Chapter*four (4) Table 4-1 as per type of group occupancy, or as approved by the Building Official. (1) 3.4 Prior to permit issuance, clearance from the Orange County Fire Authority is required. (3) 3.5 Vehicle parking, primary entrance to the building, the primary paths of travel, cashier space, sanitary facilities, drinking fountain, and public telephones shall be accessible to persons with disabilities and shall be shown on the plans. (1) 3.6 Prior to issuance of demolition, precise/rough grading, and/or building permit with valuation of $50,000 or greater, the applicant shall submit for approval by the City of Tustin, Construction & Demolition (C&D) debris collection, disposal, and diversion information in the City -prescribed forms. At least 50 .percent of the construction debris shall be diverted from landfill to the recycling plants. A security deposit in amount of $50 per ton (not to exceed $5,000 per project) for C&D security deposit will be collected prior to issuance the permit. Prior to final inspection, the applicant shall submit to the City of Tustin documents (i.e. receipt from vendor) showing actual weight or volume of each material of C&D diverted to the recycling center. Exhibit A ZA Action 06-007 Page 4 For any questions or concerns, please contact Joe Meyers at (714) 573- 3173. (City Ordinance 1281) ENGINEERING (5) 4.1 The Applicant, Property Owner, and/or Tenant are required to participate in the City's recycling program. FIRE (1) 5.1 Prior to the issuance of a building permit, plans for the fire alarm system shall be submitted to the Fire Chief for review and approval. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for New and Existing Fire Alarm Systems." (1) 5.2 This system shall be operational prior to the issuance of a certificate of occupancy. FEES (2) 6.1 Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of forty-three dollars ($43.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period the applicant has not delivered to the Community Development Department the above -noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the CalUbmia Environmental Quality Act could be significantly lengthened. s:WddvAACTIONOWZA Acbmt 06.007 (rukawh¢).dx � - L AN 5 � 4 Ld ,j � v 1 7 A. mks -Z � 4 Ld 1 F 0 � A T 4J J o= F. z I _uj N rt- F s j v L E J i �O �� i M Inter -Com DATE: OCTOBER 9, 2006 TO: ZONING ADMINISTRATOR FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CONDITIONAL USE PERMIT 06-014 PROPERTY OWNER: SIDNEY MIRRAFATI MIRA PROPERTIES, LLC. 1101 BRYAN AVENUE #G TUSTIN, CA 92780 APPLICANT: TUTORWHIZ, INC. DRS. NAREN AND ANNE MEHTA P.O. BOX 746 PLACENTIA, CA 92871 LOCATION: ZONING: ENVIRONMENTAL STATUS: REQUEST: RECOMMENDATION 740 EL CAMINO REAL CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) THIS PROJECT IS CATEGORICALLY EXEMPT (CLASS 1) PURSUANT TO THE PROVISIONS OF SECTION 15301 OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. TO ESTABLISH A TUTORING AND COUNSELING FACILITY WITHIN AN EXISTING OFFICE BUILDING That the Zoning Administrator adopt Zoning Administrator Action No. 06-007 approving Conditional. Use Permit 06-014. BACKGROUND The applicant is requesting approval to establish a tutoring and counseling facility and associated administrative offices in a stand-alone building located at 740 EI Camino Real (Attachment A — Location Map). The subject property is . located within the Central Commercial (C-2) zoning district, where schools are conditionally permitted per Tustin City Zoning Administrator Report CUP 06-014 Page 2 Code Section 9233(c)(e). The General Plan Designation is Old Town Commercial, which allows for retail, professional office, and service-oriented business activities to serve Old Town and surrounding areas. On September 18, 2006, the City Council adopted Ordinance 'No. 1317 authorizing the Zoning Administrator to consider office uses on the ground floor within the C-2 zoning district. This ordinance will become effective on October 18, 2006. Site and Surrounding Properties The site is located at the Y -intersection of EI Camino Real and EI Camino Way. The site surroundings include retail and commercial uses on all sides. EI Camino Plaza is located at the West, Tustin Motor Lodge and Makena Square to the South, Galaxy Automotive to the North, and a retail strip center to the East. Public Noticing A public hearing notice identifying the time, date, and location of the public hearing for the proposal was published in the Tustin News on September 28, 2006. Property owners within 300 feet of the site were notified of the hearing by mail; a hearing sign is posted on the site; and, the hearing was posted at City Hall on September 28, 2006. DISCUSSION Project Description The proposed site is improved with an existing single -story, 1,757 square foot office building that was constructed in 1972. The applicant proposes to operate the office headquarters for Tutorwhiz, Inc. at the site, which will include corporate bookkeeping and payroll, hiring interviews, and staff training. The primary use will consist of academic preparation programs for children (Grades 2 - 12), and adults (i.e., CBEST preparation). Diagnostic testing and marriage and family counseling will also be conducted at the center. The applicant proposes to operate the office and classroom spaces as follows: USE HOURS OF OPERATION Diagnostic Testing 11:00 a.m. — 2:00 p.m. Marriage and Parnily Counseling 2:00 p.m. — 7:00 p.m. Corporate Bookkeeping and Payroll 11:00 a.m. - 5:00 p.m. Zoning Administrator Report CUP 06-014 Page 3 Hiring Interviews and Staff Training 11:00 a.m. — 2:00 p.m. Curriculum Prep For Other Centers 11:00 a.m. — 5:00 p.m. Academic Prep (Adult) 5:00 p.m. — 7:00 p.m. & Saturday 10:00 a.m. —12:00 p.m. Academic Prep (Grades 2- 12) 5:00 p.m. — 7:00 p.m. & Saturday 10:00 a.m. —12:00 p.m. Retail Sales (Books and educational CDs) 11:00 a.m. — 7:00 p.m. & Saturday 10:00 a.m. —12:00 p.m. The tenant space is divided into five (5) classrooms, three (3) offices, two restrooms (2), one (1) reception, and one (1) waiting area (Attachment B — Submitted Plans). Parking and Traffic There are a total of eight (8) proposed parking spaces at the site, including one (1) handicap space and adjacent loading zone. Off-street parking requirements have been calculated using the following ratios: one (1) space per staff member, one (1) space per two (2) adults, and one (1) space per eight (8) children. The applicant has indicated that there would be a maximum of four (4) instructors on-site at any given time. The permitted occupancy of the building has been determined based on the amount of available parking. Based on the proposed on-site parking, this would allow for a total occupancy at any given time of: • 4 instructors AND 32 children; OR • 4 instructors AND 8 adult students; OR • A combination thereof using the above ratios. Therefore, a condition has been included that ensures the occupancy of the building may at no time exceed a total of 36 persons (4 adults and 32 children or 4 adults and 8 adult students). The City's Traffic Engineer has reviewed the project and completed a traffic analysis calculation. The Traffic Engineer has determined that the use could create one (1) additional trip end during the AM peak hour and could generate a total of nineteen (19) additional net daily trip ends during the PM peak hour. However, the Traffic Engineer concluded that no significant AM and limited PM peak hour net changes are anticipated. Based upon the projects anticipated, traffic generation, and the adjacent street system design, there is sufficient street capacity to accommodate the proposed project. Zoning Administrator Report CUP 06-014 Page 4 ANALYSIS In determining whether to approve the Conditional Use Permit, the Zoning Administrator must determine whether or not the proposed use will be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing in or working in the neighborhood or whether it will be injurious or detrimental to property or improvements in the vicinity or to the welfare. of the City. A decision to approve this request may be supported by the following findings: 1) The proposed use, as conditioned, would not be detrimental to surrounding properties in that the use would occur entirely within the building and the number of instructors and clients and scope of operations for the proposed use can be supported by the proposed building and site design, and would be compatible with the uses on the surrounding properties. 2) The proposed tutoring sessions, based upon a maximum of four (4) instructors and eight (8) adult students, or thirty-two (32) children students, can be accommodated by the existing number of parking spaces required for the approved use. 3) As conditioned, a maximum occupant load of thirty-six (36) persons has been determined to be consistent with the California Building Code related to accessibility requirements. 4) As conditioned, the proposed use would not create a noise impact on the surrounding neighborhood since the instruction would be entirely within the building and would comply with the Tustin Noise Ordinance. 5) The tutoring facility would generally operate from 11:00 a.m. to 7:00 p.m., Monday through Thursday, 9:00 a.m. to 12:00 p.m. on Saturday, and close Friday and Sunday, which is consistent and compatible with the hours of operation for other commercial uses in the area. LA� Reina Kapadia Assistant Planner Attachments: A. Location Map B. Submitted Plans C. ZA Action 06-007 &: Cdd1ZAREPORTWOMCUP 06-014 {Tutorwhiz).doc ATTACHMENT A Location Map Location Map 740 EI Camino Real CUP 06-014 ATTACHMENT B Submitted Plans N J °, e a 3 r v woutwO �Xlsrr..lc� oF'Ftc�� 1757 S.f. //Cg%isffA �0, LAr O5cA?a44 IO c ------------ 7 LOA" � i R1e Y rlokTH j O cr'' , �' 1 sell �Aav50P�� 'M . .. '2 I J%r W J _ 6 f 1(c PLA n+ s<PI-I 1 ID 0 Y rlokTH A. r nil ATTACHMENT C Zoning Administrator Action 06-007 ZONING ADMINISTRATOR ACTION 06-007 CONDITIONAL USE PERMIT 06-014 740 EL CAMINO REAL The Zoning Administrator of the City of Tustin does hereby resolve as follows: 1. The Zoning Administrator finds and determines as follows: A. That a proper application for Conditional Use Permit 06-014 was filed by Dr. Naren and Dr. Anne Mehta, on behalf of Tutorwhiz, Inc., requesting authorization to establish a tutoring and counseling facility including associated administrative offices for children and adults in a stand-alone building at 740 EI Camino Real. B. That the proposed land use is consistent with the. Tustin City Code and General Plan. The site is zoned Central Commercial (C-2) and the land use is designated by the General Plan as Old Town Commercial, which provides for a variety of public, institutional, retail, office, and commercial uses, including instructional facilities. The project is consistent with the Air Quality Sub -element of the City of Tustin General Plan. C. That the City Council adopted Ordinance No. 1317 authorizing the Zoning Administrator to consider office uses on the ground floor with the approval of a Conditional Use Permit. D. That a public hearing was duly called, noticed, and held for Conditional Use Permit 06-014 on October 9, 2006, by the Zoning Administrator. E. That the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use, nor be injurious or detrimental to the property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin in that: 1) The proposed use, as conditioned, would not be detrimental to surrounding properties in that the use would occur entirely within the building and the number of instructors and clients and scope of operations for the proposed use can be supported by the proposed building and site design, and would be compatible with the uses on the surrounding properties. 2) The proposed tutoring sessions, based upon a maximum of four (4) instructors and eight (8) adult students, or thirty-two (32) children students, can be accommodated by the existing number of parking spaces required for the approved use. Zoning Administrator Action uu-007 October 9, 2006 Page 2 3) As conditioned, a maximum occupant load of thirty-six {36) persons has been determined to be consistent with the California Building Code related to accessibility requirements. 4) As conditioned, the proposed use would not create a noise impact on the surrounding neighborhood since the instruction would be entirely within the building and would comply with the Tustin Noise Ordinance. 5) The tutoring facility would generally operate from 11:00 a.m. t407:00 p.m., Monday through Thursday, 9:00 a.m. to 12:00 p.m. on Saturday, and be closed .Friday and Sunday, which is consistent and compatible with the hours of operation for other commercial uses in the area. F. This project is Categorically Exempt pursuant to Section 15301 (Class 1) of Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The Zoning Administrator hereby approves Conditional Use Permit 06-014 authorizing a tutoring and counseling facility for children and adults along with its associated offices in a stand-alone building at 740 EI Camino Real, subject to conditions attached hereto. PASSED AND ADOPTED by the Zoning Administrator of the City of Tustin at a regular meeting held on the a day of October, 2006. DANA OGDON ACTING ZONING ADMINISTRATOR ELOISE HARRIS RECORDING SECRETARY Zoning Administrator Action„ -007 October 9, 2006 Page 3 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELOISE HARRIS, the undersigned, hereby certify that I am the Recording Secretary of the Zoning Administrator of the City of Tustin, California; that Zoning Administrator Action No. 06-007 was passed and adopted at a regular meeting of the Tustin Zoning Administrator, held on the 9"' day of October, 2006. ELOISE HARRIS RECORDING SECRETARY GENERAL EXHIBIT A ZONING ADMINISTRATOR 06-007 CONDITIONAL USE PERMIT 06-014 CONDITIONS OF APPROVAL The proposed project shall substantially conform with the submitted plans for the project date stamped October 9, 2006, on file with the Community Development Department, as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve subsequent minor modifications to plans during plan check if such modifications are consistent with provisions of the Tustin City Code. . (1) 1.2 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.3 All conditions in this Exhibit shall be complied with prior to -the start of classes or as specified, subject to review and approval by the Community Development Department. (1) 1.4 Approval of Conditional Use Permit 06-014 is contingent upon the applicant and property owner signing and returning to the. Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk -Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval' form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Any violation of any of the conditions imposed is subject to the payment of a civil penalty of $100.00 for each violation, or such other amounts as the City Council may establish by ordinance or resolution, and for each 'day the violation exists, subject to the applicable notice, hearing, and appeal process as established by the City Council ordinance. (1) 1.6 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. SOURCE CODES (1) STANDARD CONDITION (2) CEQA MITIGATION (3) UNIFORM BUILDING CODE/S (4) DESIGN REVIEW *** EXCEPTIONS J5) RESPONSIBLE AGENCY REOUIREMENTS (6) LANDSCAPING GUIDELINES (7) PC/CC POLICY Exhibit A ZA Action 06-007 Page 2 (1) 1.7 As a condition of approval of Conditional Use Permit 06-014 the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (***) 1.8 Conditional Use Permit 06-014 may be reviewed annually, or more often if deemed necessary by.the Community Development Department, to ensure compatibility with the area and compliance with the conditions contained herein. USE RESTRICTIONS (***) 2.1 The proposed office and tutoring use shall not commence prior to October 18, 2006, when Ordinance No. 131.7, which authorizes office use with the approval of a Conditional Use Permit by the Zoning Administrator, shall . become effective. (***) 2.2 The maximum number of students and instructors within the facility at any given time shall be as follows: • 4 instructors AND 32 children; OR • 4 instructors AND 8 adult students; OR A combination thereof using the ratio of 1 space/instructor, 1 space/8 children, and 1 space/2 adult students. Any request to modify the maximum number of students and/or instructors shall require the applicant to provide property owner permission, a parking summary of the site showing the additional parking spaces, and shall be subject to the Community Development Director approval. The maximum occupant load permitted by CUP 06-014 shall be posted on the wall by the exit door in a conspicuous location. (1) 2.3 Each class shall be concluded to provide sufficient time for attendees of the prior class to vacate the site prior to arrival of attendees of the next class. (***) 2.4 No daycare use, as defined by the California Building . Code, shall be permitted unless approved by the Community Development Director. Exhibit A ZA Action 06-007 Page 3 BUILDING (3) 3.1 At the time of building permit application, the plans shall comply with the 2001 California Building Code (CBC), 2001 California Mechanical Code (CMC), 2001 California Plumbing Codes (CPC), 2004 California Electrical Code (CEC), California Title 24 Accessibility Regulations, 2005 Title 24 Energy Regulations, City Ordinances, and State and Federal laws and regulations 2005 Edition. (1) 3.2 Building plan check submittal shall include the following: Seven (7) sets of construction plans, including drawings for mechanical, plumbing and electrical (*"") 3.3 Prior to the establishment of the tutoring use at the site, the applicant shall re -stripe the parking lot as per the approved plans, with applicable permRs issued by the Building Division. Note on plans that no field changes shall be made without prior approval from the Building Official and architect or engineer of record. The plans submitted shall indicate that restrooms are accessible to persons with disabilities as per State of California Accessibility Standards (Title 24). Plumbing fixture units are required to comply with the 2001 California Plumbing Code Chapter four (4) Table 4-1 as per type of group occupancy, or as approved by the Building Official. (1) 3.4 Prior to permit issuance, clearance from the Orange County Fire Authority is required. (3) 3.5 Vehicle parking, primary entrance to the building, the primary paths of travel, cashier space, sanitary facilities, drinking fountain, and public telephones shall be accessible to persons with disabilities and shall be shown on the plans. (1) 3.6 Prior to issuance of demolition, precise/rough grading, and/or building permit with valuation of $50,000 or greater, the applicant shall submit for approval by the City of Tustin, Construction & Demolition (C&D) debris collection, disposal, and diversion information in the City -prescribed forms. At least 50 percent of the construction debris shall be diverted from landfill to the recycling plants. A security deposit in amount of $50 per ton (not to exceed $5,000 per project) for C&D security deposit will be collected prior to issuance the permit. Prior to final inspection, the applicant shall submit to the City of Tustin documents (i.e. receipt from vendor) showing actual weight or volume of each material of C&D diverted to the recycling center. Exhibit A ZA Action 06-007 Page 4 For any questions or concerns, please contact Joe Meyers at (714) 573- 3173. (City Ordinance 1281) ENGINEERING ' (5) 4.1 The Applicant, Property Owner, and/or Tenant are required to participate in the City's recycling program. FIRE (1) 5.1 Prior to the issuance of a building permit, plans for the fire alarm system shall be submitted to the Fire Chief for review and approval. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for New and Existing Fire Alarm Systems." (1) 5.2 This system shall be operational prior to the issuance of a certificate of occupancy. FEES (2) 6.1 Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of forty-three dollars ($43.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period the applicant has not delivered to the Community Development Department the above -noted crack, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. S:\Cddq.AACTI0M2006VA Action 06-007 (Tutonvhiz).doc FILED RECEIVED NOV 2 g 2o% OCT 17 2006 �OMMUNITYDEVEtOPMEN TOM D LY, CLEflK RECOflDER COMMUNITY DEVELOPMENT DEPARTMENT By DEPUTY 300 Centennial Way, Tustin, CA 92780 (714) 573-3100 NOTICE OF EXEMPTION ❑ Fee Exempt per Govt. Code Section 6103 Project Title: Conditional Use Permit (CUP) 06-014 POSTED Project Location: 740 El Camino Real, City of Tustin, County of Orange OCT 17 2006 Project Location — County: Orange TOM DALY, CLERK -RECORDER DEPUTY Project Description: AUTHORIZATION TO ESTABLISH A TUTORIAL/COUNSELING FACILITY IN AN EXISTING OFFICE BUILDING, Name and Address of Applicant: Drs. Naren and Anne Mehta Tutorwhiz, Inc. P.O. Bog 746 Placentia, CA 92871 Name of Public Agency Approving Project: City of Tustin, Zoning Administrator Name and address of Person or Agency Carrying Out Project: Drs. Naren and Anne Mehta Tutorwhiz, Inc. P.O. Box 746 Exempt Status: (Check One) Placentia, CA 92871 ❑ Ministerial (Sec. 21080(b)(1); 15268) ❑ Declared Emergency (Sec. 21080(b)(3); 15269(a)) ❑ Emergency Project (Sec. 21080(b)(4); 15269(b)(c)) ® Categorical Exemption: Class 1, Section 15301 ❑ Statutory Exemptions (State Code No.) Reason why project is exempt: The conversion of an existing office building into a tutorial facility involves negligible or no expansion of existing facilities and is exempt under Class 1 of Section 15301 of the California Environmental Quality Act. Lead Agency Contact Person Reins Kapadia Telephone 714.573.3118 Iffiled by applicant. - L Attach certified document of exemption finding. 2. Has a notice of exemption been filed by the public agency approving the project? ❑ Yes ❑ No Date /D.16-0(0 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 111111141111111111111111111 III II I IIII I NN 111111111111111111143.00 200685001106 09:17am 10117/06 50 67 201 n AA A9 AA n nn n nn n nn n nn n nn n n.. Elizabeth A. Binsack Community Development Director October 9, 2006 Lin pito ay Tutorwhiz, Inc. r1 f `.iCl. '.-A '2730 Attn: Drs. Naren and Anne Mehta ' ' `'^3 ={'' P.O. Box 746 Placentia, CA 92871 SUBJECT: CONDITIONAL USE PERMIT 06-014 Dear Drs. Mehta: The Zoning Administrator at a regular meeting on October 9, 2006, approved the subject project. This action may be appealed to the Planning Commission by any person submitting a petition indicating why the action or a condition is being appealed along with an appeal fee as established by the City Council. The Zoning Administrator's action will become final unless an appeal petition and fee as noted above are received by the Community Development Department by 5:00 p.m. Monday, October 16, 2006 (Tustin City Code Section 9294). The executed copy of Zoning Administrator Action No. 06-007 is attached for your records. Should you have any questions about the Planning Commission's action, please do not hesitate to contact me at (714) 573-3118. Approval of Conditional Use Permit 06-014 is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form in accordance with Condition No. 1.4 of Exhibit A. In addition, a Notice of Discretionary Permit Approval and Conditions of Approval" form is required to be signed and notarized by the property owner. This form is required to be recorded with the Orange County Recorder's Office and returned prior to building permit issuance. Copies of these forms have been enclosed for your convenience. Also attached is a Customer Service Evaluation forma It would be appreciated if you could take a few minutes to complete and return the form to the City. The form will be kept in confidence and your response can be anonymous. Your comments are valuable to us and* will enable the City to better serve you and our other customers in the future. Sincerely, Reina Kapadia Assistant Planner cc: Sidney Mirrafati, Mira Properties, LLC, 1101 Bryan Avenue, Unit G, Tustin, CA 92780 Enc: Zoning Administrator Action 06-007 Agreement to Conditions Imposed Form Agreement with Conditions of Approval Discretionary Permit Approval Customer Service Evaluation Form �,cmrni�r;ity =er�,00mr�t v�Nartmant I tin December 6, 2006 :300 Centennial `Nay Tustin. CA 92780 714.573.3100 Dr. Anne Mehta Tutorwhiz, Inc. P.O. Box 746 Placentia, CA 92871 SUBJECT: CONDITIONAL USE PERMIT 06-014 Dear Dr. Mehta: On October 9, 2006, the City of Tustin Zoning Administrator approved a Conditional Use Permit (CUP) to establish a tutoring and counseling facility at 740 EI Camino Real. Our records indicate that some conditions of approval are still outstanding. Please review the Conditions of Approval for the project, specifically Conditions 1.3, 2.2, 3.3, and 5.1, and ensure compliance. The conditions of approval must be met before the City can issue you a business license. Please note that operating a business without a business license is considered a violation of the Tustin City Code. A copy of Zoning Administrator Action No. 06-007 is attached for your reference. Should you have any questions, please contact me at (714) 573-3118. Sincerely, `�e� 56a a-� Reina Kapadia Assistant Planner Enc: Zoning Administrator Action No. 06-007 cc: Scott Reekstin, Senior Planner S:\Cdd\Reina\CUP\CUP 06-014 Tutorwhiz\Reminder GOA letter.doc Comi-nus ± ty 1evelopment Department City Of Tustin September 13, 2006 Hca Centenn a 'Vday Tustin, CA �)2730 Naren Mehta 7 14.573.3100 Tutorwhiz, Inc. P.O. Box 746 Placentia, CA 92871 RE: COMPLETENESS OF APPLICATION FOR CONDITIONAL USE PERMIT 06-014 Dear Dr. Mehta: Thank you for your application submittal, received August 14, 2006, requesting authorization to establish a tutorial facility located at 740 EI Camino Real. Your application is identified as Conditional Use Permit 06-014. The Community Development Department has reviewed your submittal and in conformance with Government Code Section 65943, your application is considered complete. Your project will be tentatively scheduled for the October 9, 2006, meeting before the Planning Commission. The Planning Commission meeting begins at 7:00 p.m. in the City Council Chambers located at 300 Centennial Way. You or a representative are. encouraged to attend this meeting. A copy of the meeting agenda and staff report for your project will be available on the Thursday prior to the scheduled meeting. Please let me know prior to this date whether you would like the information made available to pick up at our offices or mailed as soon as it is ready. Should you have any questions regarding this project, please contact me at (714) 573-3118 or by electronic mail at rkagadiaa-tustinca.org. Sincerely, `�O-Z� Reina Kapadia Assistant Planner cc: Dana Ogdon SACdd\Ryan\CUP\CUP 06-014 Tutorial\CUP 06-014 Complete.doc AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of The Tustin News , a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on August 24, 1928, Case No. A-601 in and for the City of Tustin, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: September 28, 2006 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: September 28, 2006 The Tustin News 625 N. Grand Ave. Santa Ana, CA 92701 (714)796-2209 PROOF OF PUBLICATION rC�5V E IL� OCT I N006 OFFICE-TUSTIN CITY CLERK Proof of Publication of STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELOISE HARRIS, the undersigned, hereto declare that I am a citizen of the United States and a resident of the State of California; that I am over the age of eighteen years, and my business address is 300 Centennial Way, Tustin, California. On September 28, 2006, 1 placed a true copy of the attached document in a sealed envelope with postage thereon fully prepaid, in the United States mail at Tustin, California, to the addresses on the attached list. I declare under penalty of perjury that the foregoing is true and correct. Executed at Tustin, California, on September 28, 2006. ELOISE HARRIS FORMSNELOISEaffadvit doc Y: CITY OF TUSTIN OFFICIAL NOTICE OF PUBLIC HEARING Notice is hereby given that the Zoning Administrator of the City of Tustin, California, will conduct a public hearing on October 9, 2006, at 10:30 a.m. in the Community Development Department Conference Room located in the City Hall at 300 Centennial Way, Tustin, California, to consider the following: Conditional Use Permit (CUP) 06-014 A request by Dr. Anne Mehta, on behalf of Tutorwhiz, Inc., for authorization to establish a tutoring/counseling facility in an existing 1,757 square foot office building at 740 El Camino Real. The subject property is located within the Central Commercial (C-2) zoning district, where schools are conditionally permitted per Tustin City Code Section 9233(c)(e). The Zoning Administrator may modify the request as a result of the public hearing. This project is Categorically Exempt pursuant to Section 15301, Class 1 of Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). If you challenge the subject item in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Tustin at, or prior to, the public hearing. If you require special accommodations, please contact the Community Development Department secretary at (714) 573-3106. Information relative to this item is on file in the Community Development Department and is available for public inspection at City Hall. Anyone interested in the information above may call the Community Development Department at (714) 573-3118. Pamela Stoker City Clerk Publish: Tustin News tN tT I A L September 28, 2006 q LIST RADIUS MAP q VIEtiv NIAILINC; REAPI i2 ? ICE .t C NOT ICES, ,JEp A RT NO�OPR �: > EpIALL T f pOLIC P TY ECI_ Udat,�i�O If you require special accomm, --- a contact Tustin City Hall, 300 Centennial Way, Tustin 92680, (714) 573-3000. 401-631-15 401-631-01 401-631-13 William Zappas William Zappas William Zappas 3922 Emerald St Office 3922 Emerald St 3922 Emerald St Torrance, CA 90503 Torrance, CA 90503 Torrance, CA 90503 401-642-10 Neldon Dickey 23D1 Campus Dr 150 Irvine, CA 92612 401-642-11 V Cutler 2301 Campus Dr 150 Irvine, CA 92612 401-661-46 401-642-13 Ambrose Lane Maintenance Cozj Charles W & Patricia Ford 3090 Pullman St 16492 Barnstable Cir Costa Mesa, CA 92626 Huntington Beach, CA 92649 401-631-12 401-642-02 State Of California Christina Corea-Rossetti 2501 Pullman St 1214 W 18Th St Santa Ana, CA 92705 Santa Ana, CA 92706 401-641-06 401-641-05 Willard V Oconner Makena Great American 125 W Main St 1450 E1 Camino Real Tustin, CA 92780 Tustin, CA 92780 401-661-04 401-661-05 Fong John 2005 Trust Christopher W & Mindy Smith 621 Ambrose Ln 627 Ambrose In Tustin, CA 92780 Tustin, CA 92780 401-661-07 401-661-08 Karen L Mercadante Medhat R Boktor 639 Ambrose In 645 Ambrose Ln Tustin, CA 92780 Tustin, CA 92780 401-661-10 401-661-12 Firouzeh Akhavi Christopher Young 657 Ambrose Ln 13890 Platt Way Tustin, CA 92780 Tustin, CA 92780 401-661-14 401-661-15 Alexander C Vanson Chiou-Jivan Huang 13878 Platt Way 13872 Platt Way Tustin, CA 92780 Tustin, CA 92780 401-631-09 401-631-16 Eduardo Bottger Eduardo Bottger 11107 Meads 11107 Meads Orange, CA 92869 Orange, CA 92869 401-661-44 Ambrose Lane Maintenance Cor] 3090 Pullman St Costa Mesa, CA 92626 401-642-03 Tustin Properties Llc 30952 Cypress P1 Laguna Niguel, CA 92677 401-641-03 Willard V Oconner 125 W Main St Tustin, CA 92780 401-641-02 Tustin Motor Lodge 750 E1 Camino Real Tustin, CA 92780 401-661-06 Brock Weld 633 Ambrose Ln Tustin, CA 92780 401-661-09 Melody A Weaver 651 Ambrose Ln Tustin, CA 92780 401-661-13 Neilson Tieu 13884 Platt Way Tustin, CA 92780 401-661-11 Patricia Railey 2324 Valley Glen Ln Orange, CA 92864 401-631-18 Eduardo Bottger 11107 Meads Orange, CA 92869 401-631-20 Eduardo Bottger 11107 Meads Orange, CA 92869 *** 33 Printed *** 401-631-21 Eduardo Bottger 11107 Meads Orange, CA 92869 401-641-01 MIRA PROPERTIES, LLC 685 NYES PL LAGUNA BEACH, CA 92651 401-631-19 State Of California 650 Howe Ave C Sacramento, CA 95825 New Century Title Company 200 E. Sandpolnte, Suite 800 Santa Ana, CA 92707 Phone No. (714) 429-2400 Preliminary Report To: To Follow Attn: ESCROW OFFICER Reference No.: Mirrafati Order No.: 4062646 RE: 605 EI Camino Real, Tustin (City), CA In response to the above referenced application for a policy of Title Insurance, NEW CENTURY TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a United Capital Title Insurance Company Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception in Schedule B or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached list Copies of the Policy forms should be read. They are available from the office which issued this report. THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS THERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY, IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED. Please read the exceptions. shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not written representation as to the condition of title and may not list all liens, defects and encumbrances affecting title to the land. The form of policy of title insurance contemplated by this report is: California Land Title Association Standard Coverage Policy - 1990 Cita Homeowners policy (6/2/98) American Land Title Association Residential Title Insurance Policy (6/1/87) American Land Title Association Loan Policy (10117/92) Dated as of: August 03, 2006 @ 7:30 a.m. New Century Title Company By: , W Bernadette Bras/I.R. Fax# (714) 429-2470 TITLE ORDER NUMBER: 4062646 SCHEDULE A The estate or interest in the land hereinafter described or referred to covered by this report is a: A fee Title to said estate or interest at the date hereof is vested in: Sid J. Mirrafati, a married man as his sole and separate property subject to item #11 The land referred to in this report is situated in the County of ORANGE, State of California, and is described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. A!UG, 4. 2 ' 0 : 3 9 A M N0. 9628 P. 5!23 Order Nu, 4062646 Exhibit "A" That portion of Block "B" of the South Tustin Tract, in the City of Tustin, County of Orange, State of California, as per Map recorded in Book 1 Page(s) 99 of Miscellaneous Maps, in the Office of the County Recorder of said County, described as follows; Beginning at the intersection of the Southwesterly line of the land described in the deed to the State Highway, recorded September 9, 1932 in Book 574 Page 187 Official Records (being the Southwesterly line of Laguna Road) with the E=asterly line of "D" Street as shown on said Map' thence Southeasterly 150 feet along the Southwesterly line of said Laguna Road; thence at right angles to said last mentioned course, Southwesterly 80 feet; thence Westerly to a point on the Easterly line of said "D" Street, said point being Southerly 173 feet along said Easterly line from the point of beginning; thence Northerly 173 feet to the point of beginning. TITLE ORDER NUMBER: 4062646 Schedule B At the date hereof, Exceptions to coverage, in addition to the printed exception and exclusions contained In said policy form would be as follows: 1. Property taxes, including any assessments collected with taxes, to be levied for the fiscal year 2006-2007 that are a lien but not yet payable. 2. Property taxes, including any personal property taxes and any assessments collected with taxes, for the fiscal year 2005 - 2006. 1 st Installment: $3,615.57 (Paid) 2nd Installment: $3,515.57 (Paid) Exemption: None Code Area: 13049 Assessment No.: 401-641-01 3. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the provisions of Part 0.5, Chapter 3.5 or Part 2, Chapter 3, Articles 3 and 4 respectively (commencing with Section 75) of the Revenue and Taxation Code of the State of California as a result of the transfer of title to the vestee named in schedule A; or as a result of changes in ownership or new construction occurring prior to date of policy. 4. The lien, if any, which may be levied under a Community Facilities Act of 1982, pursuant to the provision of Chapter 1.5, Part 1, Division 2 Title 5 of the Government Code of the State of California, by reason of the fact that said land may fall within such a district. Said lien, if any, may be incorporated into the regular property tax bill and may be a part of the General Tax collections process. 5. The right of way for and the right to operate, maintain, repair and replace and underground water pipe lines as now existing on said land, as reserved in the deed from J.P. Hatzfield and wife to Lewis C. Elliott and wife, recorded January 20,1949 in Book 1789 Page 510 Official records. 6. A right of way for pipe lines and incidental purposes of the Santa Ana Valley Irrigation Company as shown on Map field December 6,1955, in Book 31 Page 20 of Records of Surveys, in the Office of the County Recorder of Orange County, California, over the Northeasterly portion of said land. 7. An easement for the purpose shown below and rights incidental thereto as reserved in a document. Purpose: Street and highway Recorded: January 25, 1963, in Book 6408 Page 848 Official Records Affects: Over that portion of said land described therein. 8. An unrecorded Lease with certain terms, covenants, conditions and provisions set forth therein. Disclosed by: Subordination Agreement Recorded: July 30,1998 as Instrument No. 19980490844, Official Records. TITLE ORDER NUMBER: 4062646 Schedule B 9. A deed of trust to secure an indebtedness in the original amount shown below: 10. 11. 12. 13. 14. Amount: $595,800.00 Dated: August 16, 2004 Trustor: Sid J. Mirrafati, a married man as his sole and separate Grantee: property Trustee: Borrego Springs Bank, National Association Beneficiary: Borrego Springs Bank, National Association Recorded: August 20, 2004 as Document No. 2004000760651 of Official Records. An assignment of all monies due, or to become due as rent or otherwise from said land, to secure payment of an indebtedness, shown below and upon the terms and conditions therein Amount: $595,800.00 Assigned to: Borrego Springs Bank, National Association By: Sid J. Mirrafati, a married man as his sole and separate property Recorded: August 20, 2004 Document No. 2004000760652 of Official Records The effect of a deed Transfer tax: None Dated: Sid J. Mlrrafati, a married man as his sole and separate property Grantee: Mira Properties, LLC, a Delaware Limited Liability Company Recorded: December 30, 2004 as Document No. 2004001156435 of Official Records. Any defect or invalidity of the title to the estate or interest of the grantee herein arising out of or occasioned by the execution of that certain above referenced deed. For the purposes of title insurance, this company requires that an affidavit executed by the grantor above and acknowledged by a notary, known to the title company, along with a statement of information be submitted to this office for review and approval, in order for this company to show title vested in the above named grantee. Said affidavit will be provided by this company. Matters which may be disclosed by an inspection or survey of said land or by inquiry of the parties of possession thereof. An inspection of said land has been ordered. This may reveal matters that would cause the Company to add additional exceptions to the report. Any rights of parties in possession of said land, based on any unrecorded lease, or leases. This company will require that a full copy of any unrecorded lease be submitted to us, together with all supplements, assignments and amendments, before issuing any policy of title insurance. TITLE ORDER NUMBER: 4062646 Schedule B 15. Any easements not disclosed by those public records which impart constructive notice and which are not visible and apparent from an inspection of the surface of said land. END OF EXCEPTIONS TITLE ORDER NUMBER: 4062646 Additional Notes And Requirements Continued 1. The interest, if any, of parties in possession of the herein described property. This company requests that a current rent roll/tenant list be submitted. 2. Note: The requirement that a statement of partnership be recorded for the partnership named below, as provided in section 15010.6 California Corporation Code, and that this company be furnished with a complete copy of the partnership agreement and any amendments thereto for our review at least 2 weeks prior to closing. Partnership: Mira Properties, LLC, A Delaware Limited Liability Company 3. Note.: We will require a statement of information from the parties named below in order to complete this report, based on the effect of documents, proceedings, liens, decrees, or other matters which do not specifically describe said land but which, if any do exist, may affect the title or impose liens or encumbrances thereon. Parties: All Parties (Note: The statement of information Is necessary to complete the search and examination of title under this order. Any title search includes matters that are indexed by name only, and having a completed statement of information assists the Company in the elimination of certain matters which appear to involve the parties- but in fact affect another party with the same or similar name. Be assured that the statement of information is essential and will be kept strictly confidential to this file.) 4. Note: The only conveyances affecting said land, recorded within twenty four (24) months of the, date of this report are as follows: Grantor. Sonaz Mirrafati Grantee Sid J. Mirrafati, a married man as his sole and separate property Recorded: August 20, 2004 as Document No. 2004000760649 of Official Records. Grantor: Mark S. Ervin, a married man as his sole and separate peroperty Grantee Sid J. Mirrafati,.a married man as his sole and separate property Recorded: August 20, 2004 as Document No. 2004000760650 of Official records. Grantor: Sid J. Mirrafati, a married man as his sole and separate property Grantee Mira Properties, LLC, a Delaware Limited Liability Company Recorded: December 30, 2004 as Document No. 2004001156435 of Official Recordsl 5. Note : This report is preparatory to the issuance of an ALTA Policy of Title Insurance. We have no knowledge of any fact which would preclude the issuance of said ALTA Policy with Endorsement No. 100 attached. There is located on said land the following: Commercial 605 EI Camino Real Tustin (City), CA TITLE ORDER NUMBER: 4062646 NOTES AND REQUIREMENTS NOTE A: If any Deed of Trust in favor of "Private Parties" is to be omitted from Policy of Title Insurance, we will require that the original Note, Deed of Trust and properly executed and notarized Request for Reconveyance be surrendered prior to close of escrow. 'To avoid potential delays, please forward said document at least one week prior to close. NOTE B: Section 12413. 1, California Insurance Code, commonly known as Assembly Bill 512, became effective January 1, 1990. This legislation deals with disbursement of funds deposited with any title entity acting in an escrow or subescrow capacity. The law requires that all funds deposited and collected by the title entity's escrow and/or subescrow account prior to disbursement of any funds. Some methods of funding may subject funds to a holding period which must expire before any funds may be disbursed, In order to avoid any such delays, all funding should be done through wire transfer, certified check or checks drawn on California financial institutions. NOTE C: On July 1, 1985, Assembly Bill 3132 became effective. Assembly Bill 3132 adds and repeals portions of Sections 480.3 and 480.4 of the Revenue and Taxation Code of the State of California. The act requires the County Assessor• and/or Recorder to make available a statutorily prescribed form entitled "Preliminary Change of Ownership Report". Said report must be completed by the buyer and filed concurrently with the recordation of the documents evidencing the change of ownership. Failure to present the Change of Ownership Report at the time of recordation will cause the County Recorder to charge an additional $20.00 penalty recording fee. The fee cannot be charged if the transfer document is accompanied by the affidavit stating that the buyer/transferee is not a resident of the State of California. This report is for official use only and is not open to public inspection. For further information, contact the Change of Ownership Section in the Assessor's. Office located in the County of said property or the County Recorder's Office located in the County of said properly. NOTE D: Effective January 1, 2000, New Century Title Company will charge a Reconveyance Service fee to effectuate the recording of a reconveyance of Deed of Trust, under which any Deed of Trust is paid off through its subescrow or any of its escrow branches. This Reconveyance Service Fee covers all the cost of preparation of and recordation of the appropriate documentation By proceeding with the transaction, after the receipt of a Preliminary Report, all parties involved in any transaction with New Century Title Company acknowledge and consents to the charge of a Reconveyance Service Fee. NOTE E: If applicable, please note the foliowina: The land referred to in this Preliminary Report was Identified in the order application only by street address or assessor's parcel number. This land has been located on the attached map. The use of a street address or assessor's parcel number creates an uncertainty as to the correct legal description for the land involved in your transaction. Please review the map. Is the correct land located on the map? If your transaction Involves other land or more land or less land than that located on the map you should immediately advise your title officer or escrow officer. NOTE F: Attached are Privacy Policy Notices in compliance with the Gramm -Leach -Bliley Act (GLBA) effective July 1, 2001. Please review said Notices regarding personal information. CLTA PRELIMINARY REPORT FORM 5. Note : The charge for a policy of title insurance, when issued through this title order, will be based on the short-term rate. CLTA PRELIMINARY REPORT FORM AFFIDAVIT ORDER NO.: 4062646 RE: DEED LACKING MONETARY CONSIDERATION OR UNINSURED/UNESCROWED With reference to the deed from Grantor, to . Grantee, dated and recorded on , as instrument no. records of county. THE FOLLOWING QUESTIONS ARE ANSWERED FOR THE PURPOSE OF ENABLING NEW CENTURY TITLE COMPANY AND/OR ITS UNDERWRITER TO PASS UPON THE SUFFICIENCY OF SAID DEED' 1. Were the grantor and grantee related? If so, state relationship 2. Was the deed a true gift deed? If not, state reasons 3. What is the value of the property? 4. Despite the lack of monetary consideration, was there other adequate consideration given for the deed? If so, please explain briefly how consideration was paid. 5. Were federal or state gift taxes paid in connection with the above referred to conveyance either by the grantor or grantee in the deed? 6. What was the age of the grantor at the date of signing the deed? 7. At the date of signing the deed, what was the grantor's physical condition? What was the grantor's mental condition? 8. Was the deed actually delivered to the grantee? 9. Where has the deed been since it was signed? 10. Who is currently occupying the premises located on said land? Nature of interest? 11. Is the grantor now deceased? If the answer Is yes, please also complete items 19 through 27 below. 12. What Is the grantor's current physical and mental condition? 13. Did the grantee have an agreement to act or was he/she acting as a foreclosure consultant? 14. Was the grantor facing a foreclosure or serious financial problems (outstanding debt) at the time the deed was signed? 15_ Has the grantor been provided an option to repurchase the property? TITLE ORDER NUMBER. 4062646 IF THIS COMPANY IS REQUIRED TO DISBURSE FUNDS IN CONNECTION WITH THIS TRANSACTION, CHAPTER 598, STATUTES OF 1989 MANDATES HOLD PERIODS FOR CHECKS DEPOSITED TO ESCROW OR SUB -ESCROW ACCOUNTS. THE MANDATORY HOLD PERIOD FOR CASHIER'S CHECKS, CERTIFIED CHECKS AND TELLER'S CHECKS ARE ONE BUSINESS DAY AFTER THE DAY DEPOSITED.. OTHER CHECKS REQUIRE A HOLD PERIOD FROM THREE TO SEVEN BUSINESS DAYS AFTER THE DAY DEPOSITED. IF FUNDS ARE TO BE DEPOSITED WITH New Century Title Company BY WIRE TRANSFER, WIRE FUNDS THROUGH THE FEDERAL RESERVE BANK: CREDIT TO: THE ACCOUNT OF New Century Title Company WIRE TO: Comerica Bank 275 Battery Street, Suite 1100 San Francisco, CA 94111 ABA: 12113 ►7522 Account Number: 1892102946 FURTHER CREDIT TITLE ORDER NO. TITLE ORDER NUMBER: 4062646 BY ORDER OF BUYER OR SENDER OF FUNDS SPECIAL INSTRUCTIONS: PLEASE REFERENCE CUSTOMER'S NAME ON ALL WIRES CLIA PRELIMINARY REPORT FORM 16. If known, what is the grantor's current address and telephone number? 17. Has the grantor, to the best of your knowledge, ever filed for bankruptcy, or other debtor relief provisions, under the bankruptcy laws? If so, when? State other facts if known: 18. If the grantee is taking subject to trust deeds or encumbrances placed on the property by the grantor, explain the circumstances for this action. IF THE GRANTOR IS DECEASED, PLEASE COMPLETE THE FOLLOWING: 19. What was the date of grantor's death? 20. Have the last illness and burial expenses of the grantor been paid? 21. Are there any other unpaid debts of the decedent? 22. Who are the heirs of the grantor? 23. If applicable, why was the deed not recorded until after the grantor's death? 24. Are there children or deceased children of the grantor? 25. Did the decedent leave a will? Note: If the answer to the question is "Yes", a copy of the will must be attached hereto. 26. Did decedent execute deeds to other property that were not recorded until after death? If so, to whom? 27. What was the value of all other property owned by decedent at time of death? DATE: August 10, 2006 STATE OF CALIFORNIA COUNTY OF first being duly swom, deposes and says that the answers to the foregoing questions were made by affiant under penalty of perjury. that they are true and affiant certifies and declares that he/she will testify or depose before any competent tribunal, officer or person in any case now pending or hereafter instituted, to the truth of the foregoing answers and each of them AFFIANT SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF .2006 NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE TITLE ORDER NUMBER: 4062646 PRIVACY POLICY NOTICE Privacy Notice (15 U.S.C. 6801 and 16 CPR Part 313) We collect nonpublic personal information about you from Information you provide on forms and documents and from others who are Involved In your transaction. We do not disclose any nonpublic personal Information about our customers or former customers to anyone, except as permitted by law. We restrict access to non-public personal information about you to those employees who need to know such Information in order to provide products or services to you. We maintain physical, electronic and procedural safeguards that comply with federal regulations to protect your nonpublic personal Information. When we request Information from you or about you, It is for our own legitimate business purposes and not for the benefit of any unaffiliated party. We will obey the laws governing the collection, use and dissemination of personal data and will endeavor to educate our employees on the responsible collection and use of personal information, Our Privacy Policy Is set forth below. If you have any questions about it, please call our legal department. PURPOSE OF THIS NOTICE Title V of the Gramm -Leach -Bliley Act CGLBA") generally requires a financial Institution (which term includes title Insurers, underwritten title companies and time providing real estate settlement services) to disclose to all Its customers the privacy policies and practices with respect to Information sharft of consumer nonpublic personal information with both affiliates and non-affiliated third parties. in compliance with GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of New Century Tide Insurance Company, a Capital Title Group Company. This disclosure does not apply to business, commercial or agricultural transactions. We may collect nonpublic personal Information about you from the following sources: •, Information we receive from you, such as on applications or other forms, • Information about your transactions we secure from our files, or from our affiliates or others. • Information vve receive from a consumer -reporting agency. Information we receive from others Involved In your transaction, such as the real estate agent, lender, surveyor or appraiser. Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal Information will be collected about you. We may disclose any of the above Information that we collect about our customers or former customers to our affiliates or to non- affiliated third parties as permitted by law. This includes, but Is not limited to, financial service providers (e g., banks, consumer finance lenders, securities and Insurance companies, etc.), non-financial companies (e.g., settlement or fulfillment service providers, or title plant operated by a third party vendor). WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT 1S NOT SPECIFICALLY PERMITTED BY LAW. United Title Insurance Company And New Century Title Company 7577 Mission Valley Rd., Suite 101 San Diego, CA 92108 Privacy Policy Notice We are committed to safeguarding customer information; When we request information from you or about you, it is for our own legitimate business purposes and not for the benefit of any unaffiliated party; TITLE ORDER NUMBER: 4062646 We use personal consumer information only for legitimate business purposes in a manner consistent with title insurance and escrow practices in compliance with applicable laws and regulations; We will obey the laws governing the collection, use and dissemination of personal data; and We will endeavor to educate pur employees on the responsible collection and use of personal Information. PURPOSE OF THIS NOTICE Title V of the Gramm -Leach -Bliley Act (GLBA) generally requires a financial institution (which term includes title insurers, underwritten companies and those providing real estate settlement services) to disclose to all its customers the privacy policies and practices with respect to information sharing of consumer nonpublic personal Information with both affiliates and non-affiliated third parties: In compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of New Century Title Company. This disclosure does not apply to business, commercial or agricultural transactions. We may collect nonpublic personal information about you from the following sources: • Information we receive from you, such as on applications or other fors • Information about. your transactions we secure from our files, or from our affiliates or others • Information we receive from a consumer -reporting agency. Information that we receive from others Involved in your transaction, such as the real estate agent, lender, surveyor or appraiser. Unless it is specifically stated otherwise In a amended Privacy Policy Notice, no additional nonpublic personal information will be collected about you. We may disclose any of the above information that we collect about our customers or former customers to our affiliates or to non-affiliated third parties as permitted by law This includes, but is of limited to, a title plant operated by New Century Title Company. In order.to provide for title insurance underwriting, in order to protect against actual or potential fraud, unauthorized transactions, claims, or other liability, information related to the issuance of the title policy, its amount and the exceptions to coverage therein, is provided to non-affiliated title plants which house not only land title public records and information regarding the physical characteristics of the property, but also information regarding the issuance of this and other title policies and title exceptions therein. The title plant information is available for the use of all licensed We insurance companies or underwritten title companies participating in the title plant and doing business in the county in which the property is located. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU TO ANYONE FOR ANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW. CLTA PRELIMINARY REPORT FORM Addsndwn A (Ray SOM) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY- IS" EXCLUSION FROM COVERAGE The following matters are expressly excluded from the coverage of this poky and the Company will not pay loss or damage, costs attorney's fee or expenses which arise by reason of. I (a) Any law, ordinance or government regulation (including but not United to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (t) the occupancy, use, or enjoyment of the land; (H) the character, dimensions of location of any Improvement now or hereafter erected in the land; (HQ a separation in ownership or a change in The dimensions or area of the land or any parcel of which the land is or was a part; or (Iv) environmental protection, or the effect of any violation of these laws. ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the pubic records at Date of Poky (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Date Of Policy 2 Rights of eminent domain unless notice to exercise thereof has been recorded in the public records at Date of Polley, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge 3 Defects, liens, encumbrances, adverse claims or other matters: (a) whether or not recorded In the pubic records at Date of Poky. but created, suffered, assumed or agreed to by the Insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the Insured claimant and not disclosed In wrKing'to the Company by the Insured claimant prior to the date the insured claimant became an Insured under this policy; (c) resulting In no loss or damage to the insured claimant; (d) attaching or created subsequent to Dale of Poky, or (e) resulting in loss or damage which would not have been sustained If the Insured claimant had paid value for the insured mortgage or for the estate or interest Insured by this poky 4 Unenforceabilty of the lien of the Insured mortgage because of the Inability or failure of the Insured at Date of Poky, or the Inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the stale In which the land is situated 5 Invalidity or unenforceability of the lien of the Insured mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured mortgage and Is based upon usury or any consumer credit protection or truth in lending law 6 Any Claim. which arises out of the transaction vesting in the Insured the estate of Interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws EXCEPTIONS FROM COVERAGE - SCHEDULE S. PART 1 This policy does not Insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: I Taxes or assessments which are not shown as existing Hens by the records of any taxing authority that levies taxes or assessments on real property or by the public records 2 Proceedings by a public agency which may result In taxes or assessments, or notices of such proceedings, whether or not shown by the public records of such agency or by the public records 3 Any facts, rights, Interest, or claims which are not shown by the publics records but which could ascertained by an inspection of the land which may be asserted by persons In possession thereof 4 Easements. liens or encumbrances, or claims thereof, which are not shown by the pubic records 5. Discrepancies, conflicts In boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the pubic records 6 (a) Unpatented mining claims; (b) reservations or exceptions In patents or In Acts authorizing the Issuance thereof; (c) water rights, claims or title to water. whether or not the matters excepted under (a); (b) or (c) are shown by the public records CLTA PRELIMINARY REPORT FORM CALIFORNIA LAND TITLE ASSOCIATION HOMEOWNER'S POLICY Of TITLE INSURANCE l LU: CLIA PoW and an ALTA Polley (Rev 10.17-9111 In addition to the Exceptions In Schedule 8, You are not Insured against loss, costs, attorneys' fees end expenses resuaing from: 1 Governmental police power. and the existence or violation of any low or government regulation This Includes ordinances, Is" and regulations concerning: (a) building (b) zoning (c) Land use . (d) improvements on the Lara! (e) Land division (f) environmental protection This Exclusion does not apply to violations or the enforcement of these mailers If notice of the violation or enforcement appears to the Public Records at the Policy Dale This Exclusion does not limit the coverage described In Covered Risk 14, 15. 16, 17 or 24 2 The taNtue of Your existing structures, or any part of them, to be constructed In acaordence with applicable building codes. This Exclusion does not apply to violations of building codes g notice of the violation appears in the Public Records at the Policy bete 3 The right to lake the Land by condemning it, unless: (a) a notice of exercising the right appears In the Public Records at the Policy Date; or . (b) the taking happened before the Policy Date and Is binding on You If You bought the Land without Knowing of the taking 4 Risks: (a) that are created, allowed, or agreed to by You, whether or not they appear In the Public Records; (b) that are Known to You at the Policy date, but not to Us, unless they appear In the. Public Records at the Policy Dale; (c) that result In no loss to You; or (d) that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8 d, 22, 23,24 or 25 5 Failures to pay value for Your Title 6 Lack of a right: (a) to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A; and (b) in streets, spays, or waterways that touch the Land This Exclusion does not dmil the coverage described In Covered Risk i t or 18 AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY (a•YW) EXCLUSIONS In addition to the Exceptions in Schedule B, you are not Insured against loss, costs, attorneys' fees and expenses resulting from: 1 Governmental police power, and the existence or violation of any low or government regulation This Includes buckling and zoning ordinances and also taws and regulations concerning: • land use • improvements on the land • land division • environmental protection This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date This exclusion does not limit the zoning coverage described In items 12 and 13 of Covered Title Risks 2 The right to tale the land by condemning N, unless: • a notice of exercising the right appears in the public records on the Policy dale; • the taking hbappened prior to the Polk -,y Date and is binding on you If you bought theland without knowing of the taking 3 Title Risks: • that are created, allowed, or agreed to by you • that are known to you, but not to us, on the Policy Day - unless they appeared In the public records • that result in no lose to you CLTA PRELIMWARY REPORT FORM • that first affect your title after the Policy Day - this does not limit the labor and material Hen coverage In Item 6 of Covered Title Risks 4 Failure to pay value for your title 5 Lack of a right: • to any land outside the area specifically described and referred to In Item 3 of Schedule A OR • In street, alleys, or waterways that touch you land This exclusion does not limit the access coverage In Item No 5 of Covered Title Risks AMERICAN LAND TITLE ASSOCIATION LOAN POLICY po.17-92) WITH ALTA ENDORSEMENT - FORM 1 COVERAGE AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10.17-92) WITH ALTA ENDORSEMENT - FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE . The following matters are expressly excluded from the coverage of this policy and the Company Will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: I (a) Any haw, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (HI) a separation In ownership or a change In the dimensions or area of the land or any parcel of which the land Is or was a part; or Qv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, Ilan or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Date of Policy (b) Any governmental pokey power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Dale of Policy 2 Rights of eminent domain unless notice of the exercise thereof has been recorded In the public records at date of Policy, but not excluding from coverage any taking which as occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge 3 Defects, Hens, encumbrances, adverse cialms or other matters: (a) created, suffered, assumed or agreed to by the insured claimant: (b) not known to the Company, not recorded In the Public records at Date of Policy, but known to the insured claimant and not disclosed In writing to the Company by the insured claimant prior to the date of Insured claimant became an insured under this policy. (c) resulting in no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insured the priority of the lien of the Insured mortgage over any statutory lien for services, labor or material or to the extent Insurance is afforded herein as to assessments for street Improvements under construction or completed at Date of Pokey); or (e) resulting In loss or damage which would not have been sustained if the insured claimant has paid value for the Insured mortgage 4 Unenforceability of the lien of the Insured mortgage because of the inability or failure of the Insured at Date of Policy, or the Inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the stale in which the land is situated 5 Invalidity or unenforceablllty of the lien of the Insured mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured mortgage and Is based upon usury or any consumer credit protection or truth in lending law 6 Any statutory Hen for services, labor or materials (or the claim of priority of any statutory Hen for services, labor or materials over the lien of the Insured mortgage) arising from an improvement or work related to the land which Is contracted for and commenced subsequent to Date or Policy and Is not financed in whole or in part by proceeds or the Indebtedness secured by the Insured mortgage which at Date of Policy the Insured has advanced or Is obligated to advance 7 Any claim, which arises out of the transaction creating the Interest of the mortgagee Insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that Is based on: (I) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer, or CLTA PRELIMINARY REPORT FORM (II) the subordination of the Interest of the Insured mortgagee as a result of the application of the doctrine or equitable subordination; or (11) the transaction creating the interest of the Insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the Instrument of transfer, or (b) 'of such recordation to Impart nope to a purchaser for value or a Judgement or Nen creditor The above policy forms may be issued to afford either Standard Coverage or Extended Coverage In addition to the above Exclusion from Coverage, the Exceptions from Coverage In a Standard Coverage policy will also Include the following General Exceptions: EXCEPTIONS FROM COVERAGE This policy does not Insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: I Taxes or assessments which are not shown as existing Pens by the records of any taxing authority that levies taxes or assessments on real property or by the public records Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2 Any facts, rights Interests or claims which are not shown by the pubic records but which could be ascertained by an inspection of the land or by making Inquiry of persons In possession thereof. 3 Easements, Nana or encumbrances, or claims thereof, which are not shown by the public records 4. Discrepancies, conflicts In boundary lines, shortage In area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records 5 (a) Unpatented mining claim; (b) reservations or exceptions in patents or In Ads authbrtdng the Issuance thereof; {c) water rights, claims or We to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records AMERICAN LAND TITLE ASSOCIATION OWNER'S PoUCy (11).17.92) AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY JIMT.971 EXCLUSION FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fee or expenses which arise by reason of: 1 (a) Any law, ordinance or government repletion (Including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (I} the occupancy, use, or enjoyment of the land; (11) the character, dimensions or location of any Improvement now or hereafter erected on the land; (IN) a separation In ownership or a change In the dimensions or area of the land or any parcel of which the land Is or was a pmt; or Qv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, Pen or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Dale of Policy (b) Any government police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect. Nen or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy 2 Rights of eminent domain unless notice of the exercise thereof has been recorded In the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge 3 Defects, liens, encumbrance, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the Insured claimant (b) not known to the Company, not recorded In the public records at Date of Policy, but known to the Insured claimant and not disclosed In writing to the Company by the insured claimant prior to the date the Insured claimant became an insured under this policy (c) resulting In no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting In loss or damage which would not have been sustained If the insured claimant had paid value for the estate or Interest Insured by this policy 4 Any claim, which arises out of the transaction vesting In the Insured the estate or Interest Insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that Is based on: CLTA PRELIMINARY REPORT FORM p) the transaction creating the estate or Interest Insured by this policy being deemed fraudulent conveyance or fraudulent transfer; or (IQ the transaction creating the estate or interest Insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument or transfer; or (b) of such recordation to impart notice to a purchaser for value or a Judgement or lien creditor The above policy forms may be Issued to afford either Standard Coverage or Extended Coverage In addition to the above Exclusion from Coverage, the Exceptions from Coverage In a Standard Coverage Policy will also include the following General Instructions: EXCEPTIONS FROM COVERAGE This policy does not Insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1 Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments an real property or by the public records Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records 2 Any facts, rights interests or claims which are not shown by the public records bud which could be ascertained by an inspection of the land or by making Inquiry of persons in possession thereof. 3 Easements, liens or encumbrances, or claims thereof, which are not shown by the public records 4. Discrepancies, conflicts in boundary Ones, shortage In area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records 5 (a) Unpatented ndning claims; (b) reservations or exceptions in patents or In Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) as shown by the public record ALTA EXPANDED COVERAGE RESIDENTIAL LOAN PM= (10113101) EXCLUSIONS FROM COVERAGE The following matters are expressly esduded foam Ohs covereps of this peaky and If* Company WE not pay less at damage coals. allomays toes as expenses which arise by reason of 1 (a) Any law, ordinance or governmental regulation (Including bud not Iimlted to building and zoning laws, ordinances, or regulallons) restricting, regulating, prohlblU ng or relating .to (Q the occupancy, use, or enjoyment of the land; (tQ the character, dimensions or location of any improvement now or hereafter erected on the land; (tit) a separation In ownership or a change In the dimensions or areas of the land or any parcel of which the lend is or was a part; or (iv) environmental protection, or the effect of any vlolatlon of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the Public Records at Date of Policy This exclusion does not rank the coverage provided under Covered Risks 12, 13, 14 and 16 of this policy (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, Aon or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the Public Records at Date of Policy This exclusion does not limit the coverage provided under Covered Risks 12, 13, 14, and 16 of this policy 2 Rights of eminent domain unless notice of the exercise thereof has been recorded In the Public Records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Polley which would be binding on the rights of a purchaser for value without knowledge 3 Defects, items, encumbrances, adverse claims or other matters; (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not known to the Company, not recorded In the Public Records at Dale of Policy, but known to the Insurance Claimant and not disclosed In writing to the Company by the (c) Insured Claimant prior to the date the Insured Claimant became an Insured under this policy. (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (this paragraph does not Omit the coverage provided under Covered Risks 8, 16, 18, 19, 20. 21, 22. 23, 24, 25 and 26); or ALTA EXPANDED COVERAGE RESIDENTIAL (e) resulting in loss or damage which would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage 4 Unenforceablity of the hen of the Insured Mortgage because of the Inability or failure of the Insured at Date of Poky, or the Inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the Land is situated 5 Invalidity or unenforceabNNy of the lien of the Insured Mortgage, or claim thereof; which arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, except as provided In Covered Risk 27, or any consumer credit protection or truth in lending law 6. Real property taxes or assessments of any governmental authority which become a len on the land subsequent to Date of Policy This exclusion does not limit the coverage provided under Covered Risks 7, 8(e) and 26 7 Any claim of Invalidly, unenforceablily or lack of priority of the len of the Insured mortgage as to advances or modifications made after the kmured has knowledge that the vestee shown In Schedule A Is no longer the owner of the estate or Interest covered by this poky This exclusion does not. limit the coverage provided In Covered Risk 8 8. Lack of priority of the hen of the Insured Mortgage as to each and every advance .made after Date of Poky, and all Interest charged thereon. over lens. encumbrances and other matters affecting the tile, the existence of which are known to the Insured at: (a) the time of the advance; or (b) the time a modification Is made to the terms of the Insured Mortgage which changes, the rate of Interest charged, g the rate of Interest is greater as a result of the modification than N would have been before the modification This exclusion does not ImN the coverage provided In Covered Risk 8 9. The failure of the residential structure, or any portion thereof to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This exclusion does not apply to violations of building codes N notice of the violation appears In the Public Records at Date of Policy 402-37 :;uem=D 9C9L90o, :sep=o AZuO Z 3o Z shad 69'I06 aLw sossessy y,'ebassp :no' -P fcsosea '�Olx v b w 0 oc,��-+ c3 'yw G'7>ymN � 3 -X; P cg CD Z Off--- rn m a z O -4 �n�mr U'1 r 2 m "1 111 H p s As> a a ti I N S6' 500-15� -.#A. LAGUNA � u N� S21 w ROAiO o LL 9 vrO I WV X �� o a g 10 W Project Description COMB JNITY DEVELOPMENT )EPARTMENT DEVELOPMENT APPLICATION FORM Assessor's Parcel No. O l ,6 4 / - p / Project Address FG Zoning District Present Use of Property tf Proposed Use of Property 6 FFt ce.sM91m 1"uc477o&1,fg-A7VcS. Existing Entitlements affecting the property Lot Size Building Size 1 757 47 '(Existing) I7s,'1 io- ter • aka,! S;d � -t. Property Owner Name - ,. ,S.#1 blry M, p,e 4Far i Company T &LLC . Address City, State & Zip Code �W- 7A! a�Z7 g h Phone (71 )_ 5�-g 7Y Cellular Phone 74 3 - 5 7 Fax ( 714 ) 6-�'q-6<?09 Electronic Mail Address sbkln 19,g Fq.T! EJ Yrter�C Com Applicant Name (if different) _ -b As. /A9Q-/ & AAIJI l: ��} A Company Tif-MA W H 17- . /NC - Address A-0- 80)c)c 7,444 -' City, State & Zip Code Pi-A-uyyA- . CA . q ad 7/ Phone (q51 ) a55--qd5-5 Cellular Phone-Sc� Fax f ?Lf ) 241- 5-275' Electronic Mail Address Jury /W q,(Le"'01- .�OA,f Consultant or Contact Name (if different) N Company Address City, State & Zip Code Phone Cellular Phone ( ) Fax (_ Electronic Mail Address office use CA CER: CUP c� ,exempt. t0 tW Study, 0 Nag. Dec 0 6 oceipt e ocFn<. 300 Centennial Way, Tustin, California 92780 • 714-573-3140 . FAX iia--7-q_q„,2 J•��-r fllllti�lllllt lllllll l+i rff to whonotices should be sent pursuant to Code of Civil Procedures Section 1094. m Designation of persons) -r, yj Q- A) Ai C ME Name o Mailing Address a City, State & Zip Code w Electronic Mail Address trrrrrrr f1.,rrtrr.�rrrrrtr.rrrrrtr.rr.tr. Name Mailing Address City, State & Zip Code Electronic Mail Address Legal Description of Property (attach a separate sheet if necessary) Variance/Minor Adjustment Supplemental Application Form Attached: C] Sign Code Exception (check if applicable) C] Alcoholic Beverage Sales Establishment "SEE ATTACHED SIGNATURES & ACKNOWLEDGEMENTS CERTIFICATE" the real property described in this application. I hereby acknowledge that I hereby certify that t am the owner of the Development Department lication, including all application may not be considered complete li not the information contained n this app informational all this . PP certify that a consistent with State law. I hereby lens supplemental application forms, and other De a'rtment hasebeen asubmittted, and the information required p the Community Development p handout provided to me by represented Should any or all of the information agree to defend, indemnity, and hold the City of Tustin harmless from is, to the best of my knowledge and belief, true and correctly P to lace submitted be false or incorr on any such information. I hereby grant the City the authority P liability and loss y as o a public h o ice on th subject operty 'rf a public hearing is required. jS\ 1/ SIGNATUREPRINT NAME PR0trtl T Vrv.• --- MaT4 z P,j� INT NAME APP I A T'S NOTARIZED SIGNATURE / W"k'ZPA '�-Hrhq�4 �., Anent notarized written authorization from the lens arracnCu ••• ...._ _ authorization also must be notarized. r�e„fcnnl�l Wav, Tustin, California 92780 9 714-573-3140 .• FAX 714-573-3113 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ,..,cR.nSc(:�rs�C`.cif-.rFSM,M�=•�`�C.c=�E',c`(`,�rrf`,M.M,c�;Fc>.E^<-�`,s�C,[=E;c�(`.c>r�t`=�t'.c�.�^E`�i F=l'.t� .c- -�,� .s -r - State of California County of Qprj(Ae 11 On OSI 106ateu-- A1Ka(� tShtr, before me, n Name and Title o personally appeared yyU _`, V11,rt t2,Pn4es; Place Notary Seal Above ❑ personally known to me X(or proved to me on the basis of satisfactory evidence) to be the person(,�'whose name(s isare subscribed to the hin instru ent and acknowledged to me that he he/they xecuted the s e in his/herAheir authorized apacity ' s), and that by is er/their signature �a'jon the instrument the per n , or the entity upon behalf of which the perso�acted, executed the instrument. WITNESS my hand and official seal. Signatur o Public OPT/ONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here z'-,r-r'`'�z. vim. - .cam:-�"�,'�--�C: �+`_'` �-::.;'��._.-:: �-z.,: �_z � �,.�_.',:cr. ;,z�,'���c z��''=�,.•-c, c..3..4'c�c, 02006 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 ftem No. 5907 Reorder.Calll-F�reaG1 p gj5 rB27 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ORss. On AU6 - (0) 20 -MG, before me, VIJ Ptd/' KA R'D PtP j NoTA-RY j, Date Name and Title of officer (e.g., 'Jane Doe, Notary PLofie personally appeared NPr(Lt 'ND&ja mOH Tpi- 400 AN I gAbf+A YMC_H'r_(} Names) of signers) ❑personally known to me I$ proved to me on the basis of satisfactory evidence to be the person(s) whose names) mare subscribed to the within instrument and vIJAY KARDANII acknowledged to me that hefehe/they executed NOTARY PUBLIC - CAUFORNIA ?� COMMISSION #1373764 the same in hi64l;oWtheir authorized ORANGE COUNTY My comm. Exp. September o, 2006 capacity(ies), and that by hisi(ier/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand d official seal. _t Place Notary Seal Above Lure OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: V6V'e—Lo F rv"L-')4"1° PrPP L.'1t4--,, -T l 01 1 Po" Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: _ • ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: O 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Number of Pages: 0 N C-- RIGHT THUF.IBPRINT OF SIGNER Prod. No. 5907 Reorder. Call Too -Free 1-800-876-5827 ''� COMMUNITY DEVELOPMENT DEPARTMENT CAMPAIGN Y CONTRIBUTION I, the undersigned, c Ps7Z , -RN in connection with and Is a part of my application for e -a,0 � I Gla : ,z7z o)—nA,97N , (,AZ/F-r2 r /,J - State as follows in order to effect compliance with Government Code Section 84308 et seq. Within the last twelve (12) months, I have made the following campaign contributions to a member or members of the: ❑ Planning Commission Date(s) of Contribution(s): ;� l_ T IAA X4,1—, Contribution(s) paid to: Contribution(s) for: Amount of Contributions(s): (If no contributions were made, write "none.") I declare under penalty of perjury that the foregoing is true and correct. Executed this day of 6-1k.37- , 200_, atU ; �A/ California. r�)K i4 -AJ of !e- 91LY= Print Name � 141 Signature 300 Centennial Way, Tustin, California 92780 • 714-573-3140 9 FAX 714-573-3113 APPLICATION ACCEPTANCE CHECKLIST APPLICATIONS Completed Application Forms Completed Supplemental Application Forms Signed Owner's Affidavit Signed Campaign Contribution Statement Preliminary Title Report Preliminary WQMP OCFA Service Request Form PLANNING FEES Fees Paid Receipt No. Itemize: 300' RADIUS MAP TWO SETS OF PREGUMMED MAILING LABELS PLANS Site Plan Conceptual Grading Plan Tentative Map Landscaping Plan Elevations Color Plans PHOTO REDUCTIONS TO 8'/z" x 11" MATERIAL SAMPLE/COLOR BOARD Accepted by: Date: Case Nos.: Forms:CurrentPlanning:Application Aeceptance ChecldisQ Yes No (Initial) (Initial) COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 9278o (714) 573-3105 ENVIRONMENTAL INFORMATION FORM (To Be Completed by Applicant) I. 'GENERAL INFORMATION 1. Name and Address of Developer or Project Sponsor: 2. Address of Project: 1620 1 Et- C AA4L610 &At 1A �/M 3. Assessor's Parcel Number: 4 o l 6 g/— 0/ 4. Name, address, and telephone number of person to be contacted concerning this project: 5. Indicate the type of permit applications for the project to which this form pertains: 6a/0 6. List and describe any other related permits not listed above and other public approvals required for this project, including those required by city, regional, state, and federal agencies: 7. Existing zoning district: C 1Z 8. Proposed use of site (project for which this form is filed): N J4_`L -1s H. Pro' Description 1. Site size: 0 CID 2. Square footage: 75r7,# 3. Number of floors of construction: X/ fi V = .1 4. Amount of off-street parldng provided: p(/ A 5. Existing and proposed impervious surface coverage: n//A (Impervious surface coverage includes all paved areas and building and/or structure footprints.) 6. Attach project plans, including conceptual grading plans and a list of structural Best Management Practices (BMPs) that are anticipated to be included in subsequent Water Quality Management Plans (WQMPs). 7. Proposed scheduling: IA - 8. Associated project: 9. Anticipated incremental development: a),4 io. If residential, include the number of units., schedule of unit sizes, range of sale prices or rents, and type of household size expected: A!/k ii. If commercial, indicate the type, whether neighborhood, city, or regionally oriented, square footage of sales area, and loading facilities: 41,2k 12. If industrial, indicate type, estimated employment per shift, and loading facilities: 13. If institutional, indicate the major function, estimated employment per shift, estimated occupancy, loading facilities, and community benefits to be derived from the project: �J2A 14. If the project involves a variance, conditional use, or rezoning application, state this and indicate clearly why the application is required: ENVIRONMENTAL IMPACTS Are the following items applicable to the project or its effects? Discuss all items checked yes on additional sheets and attach as necessary. YES NO i. Change in existing features of any bays, tidelands, beaches, lakes, or, hills or substantial alteration of ground contours. ❑ 2. Change in scenic views or vistas from existing residential areas, public lands, or roads ❑ 3. Change in pattern, scale, or character of general area of project. ❑ 4. Significant amounts of solid waste or litter. ❑ 5. Change in dust, ash, smoke, fumes, or odors in the vicinity. ❑ IR 6. Change in ocean, bay, lake, stream, or ground water quality or quantity, or alteration of existing drainage patterns. ❑ 7. Substantial change in existing noise or vibration levels in the vicinity. ❑ 8. Site on filled land or on slope of io percent or more. H 9. Use or disposal of potentially hazardous materials, such as toxic, flammable, or explosive substances. ❑ a io. Substantial change in demand for municipal services (police, fire, water, sewage, solid waste/recyclables, etc.). ❑ ii. Substantial increase in fossil fuel consumption (electricity, oil, natural gas, etc.). ❑ 12. Relationship to a larger project or series of projects. ❑ .2 13. Describe the project site as it exists before the project, including information on topography, soil stability, plants, and animals and any cultural, historical, or scenic Describe any .aspects. existing structures on the site and the use of the struct es. Atta h photographs of the site. Snapshots or Polaroid photos will be acceptable. 4 f _ / 9T� ba 14. Describe the surrounding properties, including information on plants and animals and any cultural, historical, or scenic aspects. Indicate the type of land use (residential, commercial, etc.), intensity of land use (one -family, apartment houses, shops, department stores, etc.), and scale of development (height, frontage, set -backs, rear yard, etc.) Attach photographs of the . vicini Snapshots or Polaroid photos will be accepted. �% III. CERTIFICATION I hereby certify that the statements furnished above and in the attached exhibits present the data and information required for this initial evaluation to the best of my ability and that the facts, statements, and information presented are true and correct to the best of my knowledge and belief. Date v ti Signature tinvironmental Information Form ( rev. 2003) FIR ORANGE COUNTY FIRE AUTHORITY r PLANNING AND DEVELOPMENT w~ SERVICE REQUEST SR NUMBER Please review the Submittal Criteria Form and complete the Permit Screening Form before completing this Service Request (SR). Be prepared to provide this SR number when inquiring about your plans. Plan status line: (714) 573-6160, Inspection scheduling: (714) 573-6150, General questions (714) 573-6100. Plan submittal information may be downloaded from niir wokcito ...,.. — Submitted by -b AA11,1 E M6-14 / A TAr v RW li y7 Phon l ` U41h t. Address ?IncLl� j City 191-4 C �•n A i�A- 1,R � 71 .............. .... Zip code Bill to (if different) Address City Phone Zip Code .................................. ............................................. _......... Name of primary contact � dtlVti 30 a,�� Phone E-mail address 2. Project Name (be specific)_ C0 P_ + )6 D I Project Address Project City �Ms)A n Zip code Z-7 g0 Ext. Ext. Provide one or more of the following: Tract/Lot # Tentative Tract/Lot # Parcel # 1q0 I — 6141 L M* Tract, tentative tract or parcel number is required for approvaL 3. t hereby authorize the following project plan review services. I am aware that additional services may be required to complete this project and agree to pay all fees. I also acknowledge receipt of a copy hereoL � Signed: ( �/,6i t Date: /to ,J 6 JURISDICTIONAL USE ONLY CITY PLANNING DEPARTMENT PLAN SUBMITTED AT: CITY BUILDING DEPARTMENT . CODE QTY FEE COMMENTS CityReference #: , (; Ob—CAIT- Revision to SR #: OCFA SUBTOTAL: , CITY FEES. PAYMENT INITIALS DATE RECELPT/CHECK# - TOT4L DUE: :'c ; ( r ADD T AMT PAID: ADD'L AMT P.4/D: .4 DD'L AMT P. -t ID: OCFA USE ONLY OCFA SERVICES PROVIDED CODE QTY FEE TOTAL DUE OCFA:: REFUND TO CUSTOMER: BALANCE DUE OCFA: ADD'L CITY FEES DUE: Exhibit E Property profile information submitted by applicant December 11, 2007 r .Agent Full Report Jigar Shah COM Cancelled NO picture available Commercial Tue, Dec 11, 2007 04:50 PM Page 1 of 4 Tustin (TUS) Commercial Price $ 1,089,000' S385449 Media: 0 Area Tustin (71) Orange County (OR) APNO s385449 Have Commercial Property Free Standing Office Building,possible Medical or Retail, Check with the Business Park Name of Tustin.Heavy Trafic. XSTS Newport Av Aerial Map 4V Features ADA Compliant Terms Cash, Cash To New Loan Tax Area List Type Exclusive Agency/Full Service TG 83063 Zip 92780- $/SF Enclosed Yard Tot Bldg SF 1,747 Gross Equity I Association I Poss Accountant $ Loans Free Standing Office Building,possible Medical or Retail, Check with the city. Excellant Location in the city of Tustin.Heavy Trafic. Reserves $ financial Analysis (ANNUAL Supply Expense $ Gross Schad Income $ 0 Tax Area Water District Vacancy Allow % $ Tax Rate Yr Tax Rate Gross Oper Income $ Land $ Actual Gross Income $ Operating Exp % $ 0 Imprvmnts Pre Tax Cash $ Net Oper Income $ 0 Per Prop Loan Payment $ Total Gross Spend Income $ Legal: Lot# 00 Blk# Trac# 00 Cap Rate 0% Gross Multiplier: 27.23 X Gross financial Info As Of Unit Size LEASE Rent No Tenant Sqft TypeLg Exp /Mo 1st $ @ $ /Mo @ Due Lender Assumable Type Fee 2nd $ @ $ /Mo @ % Fin Rmrks Total Assessed Value $ Down $ Land Fee Lee / YrExp Zones: Spc Std Fid Cstl Sid Building & Land Data Bldg Dim Mezz SgFt Ceiling Height Land SgFt 10,000 Land Dim Location Const Roof Tile R/Age Fire Spk Min Clear Ht Span Total Base Income /Mo Stcnes Year Bit 1972 / Yr Rfb Overage Income /Mo Bldg Prmt Yes Zn COM #Bldg 1 #Un Tot Mo Gross Schad Income 0 /Mo Sewer Stg Tnk O/Head Crane Lot/Community Desc Floors Total Floors % of Total Value Annual Operating Expenses Plant Data Taxes (New) Elevator Power /Amp /Volt /Phase Fire Ins Gardener Rail Heat Cooling Liability Ins Pkg Lots Ldng Drs #Dck #Well #Grd Gas & Elect Trash #Toilets M/ W/ Foil Skylt Water Janitor Pkg Spc 13 Ratio 7.4 Fncd Sqft Plant SgFt Maint Association Management Accountant $ Advertising $ Contract Services $ Debt Services $ Payroll $ Reserves $ Security $ Sewer $ Supply Expense $ Utilities $ Vacancy % Source of Annual Expense Total $ 0 Parking Office Data Tot Sqft 1,747 #Offices #Toilets M/ W/ A/C Y Heat Forced Air ist Office/Agent Inf List Office Evergreen Realty (1142) Office 949-365-1888 Fax 949-654-8855 Res 949-654-8855 List Agent Sami Fargo (sfargsam) Pager 000-0000 Cell Primary 949-654-8855 Agt E -Mail Yes Agt WSite Agent Remarks http://www.tempo.socalmis.com/SearchDetail/Scripts/PrtAgtFul/PrtAgtFul.asp 12/11/2007 ,Agent pull Report Page 2 of 4 Priv Rmks Note: The property address is 605 EI Camino Real - APN 401-641-01 ** This address has been changed to 730 EI Camino Real by the city of Tustin.Please call listing agent if you need more information. Thank you. ' isting Activit List Date 2/9/2005 Date Added 2/9/2005 Tran Date 10/6/2005 DOM 40 COE: 10/5/2005 LP/SgFt $ Orig Price $ 999,000 Prev Price $ 999,000 Cur List Price $1,099,000 Off Market 10/5/2005 Comp 2% The accuracy of all information regardless of source, including but not limited to square footages and lot size, is deemed reliable but is not guaranteed and should be independently verified through personal inspection by and/or with the appropriate professionals. Copyright SoCaIMLS. http://www.tempo.socalmis.com/SearchDetail/Scripts/PrtAgtFul/PrtAgtFul.asp 12/11/2007 Agent Full Report Jigar Shah C Commercial Page 3 of 4 Tue, Dec 11, 2007 04:50 PM Tustin (TUS) Commercial Price $ 1,199,000 S494650 Media: 4 Area Tustin (71) Orange County (OR) APNO S494650 Have Business Park Name XSTS Newprt Ave. / EI Camino Real Aerial Map 4f `' Features ADA Compliant No Terms Cash, Cash To New Loan, Owner May Carry List Type Exclusive Right To Sell/Full Service TG 830133 Zip 92780- $/SF 0 Enclosed Yard Tot Bldg SF 1,744 Gross Equity Unit Size LEASE Rent No Tenant Sqft TypeLg Exp /Mo 1st $ @ $ /Mo @ % Due Lender Assumable Type Fee 2nd $ 9$ /Mo @ % Fin Rmrks Total Assessed Value $ 0 Down $ Poss Loans Commercial Free Standing Single Story Building, 10,000 Sq.Ft. Lot, 13 Parking Spaces / YrExp financial Analysis (ANNUAL Gross Schad Income $ 0 Tax Area Water Vacancy Allow % $ Tax Rate Yr Tax Rate Gross Oper Income $ Land $ Actual Gross Income $ 0 Operating Exp % $ 0 Imprvmnts Pre Tax Cash $ 0 Net Oper Income $ 0 Per Prop Loan Payment $ Total Gross Spend Income $ Legal: Lot# 0 Blk# Trac# 75505 Cap Rate 0% Gross Multiplier: X Gross Land Dim Financial Info As Of Unit Size LEASE Rent No Tenant Sqft TypeLg Exp /Mo 1st $ @ $ /Mo @ % Due Lender Assumable Type Fee 2nd $ 9$ /Mo @ % Fin Rmrks Total Assessed Value $ 0 Down $ Maint Association Land Fee Lee / YrExp Advertising $ Contract Services $ Debt Services $ Zones: Spc Std Fid Cs" Sid Sewer $ Supply Expense $ Utilities $ Building & Land Data Source of Annual Expense Owner Provided Total $ 0 Bldg Dim Mezz SgFt Ceiling Height Land SgFt 10,000 Land Dim LocationCorner Const Roof R/Age Fire Spk Min Clear Ht Span Total Base Income /Mo Stories Year Bit 1972 / Yr Rfb Overage Income /Mo Bldg Prmt Zn #Bldg #Un Tot Mo Gross Schad Income 0 /Mo Sewer Stg Tnk O/Head Crane Lot/Community Desc Floors Total Floors % of Total Value 0 - Annual Operating Expenses Plant Data Taxes (New) Elevator Power /Amp /Volt /Phase Fire Ins Gardener Rail Heat Cooling Liability Ins Pkg Lots Ldng Drs #Dck #Well #Grd Gas & Elect Trash #Toilets M/ W/ Foil Skylt Water Janitor Pkg Spc 13 Ratio 7.5 Fncd Sqft Plant SgFt Maint Association Management Accountant $ Advertising $ Contract Services $ Debt Services $ Payroll $ Reserves $ Security $ Sewer $ Supply Expense $ Utilities $ Vacancy % Source of Annual Expense Owner Provided Total $ 0 Parking Open Office Data Tot Sqft 1,744 #Offices #Toilets M/ W/ A/C Heat . ist Office/Agent Info List Office Evergreen Realty (H05467) Office 949-753-7888 Fax 949 654-8855 Res 949-654-8855 List Agent Sami Fargo (sfargsam) Pager 000-0000 Cell Primary 949 654-8855 Agt E -Mail Yes Agt WSite httt)://www.tempo.socalmis.com/SearcbDetail/Scripts/PrtAgtFul/PrtAgtFul.asp 12/11/2007 Agent hull Report Page 4 of 4 Agent Remarks Priv Rmks Excellent Location, Possible Medical or Retail.Heavy Trafic, Please do not disturb Tenant, Call Listing Agent K you have any question. 949 654-8855 ' fisting Activit List Date 6/27/2007 Date Added 6/27/2007 Tran Date 10/25/2007 DOM 65 COE: 10/25/2007 LP/SgFt $0 Orig Price $ 1,199,000 Prev Price $ Cur List Price $1,199,000 CDOM 65 Off Market 10/25/2007 Comp 2.5% The accuracy of all information regardless of source, including but not limited to square footages and lot size, is deemed reliable but is not guaranteed and should be independently verified through personal inspection by and/or with the appropriate professionals. Copyright SOCaIMLS. http://www.tempo.socalmis.com/SearchDetail/Scripts/PrtAgtFul/PrtAgtFul.asp 12/11/2007 Exhibit F Zoning Confirmation letter to Dr. Mehta dated October 12, 2007 Community Development Department City of Tustin October 12, 2007 300 Centennial Way Tustin, CA 92780 Dr. Ashok Mehta 714.573.3100 13771 Newport Ave., Ste. 11 Tustin, CA 92780 SUBJECT: ZONING VERIFICATION FOR 740 EL CAMINO REAL, TUSTIN, CA Dear Dr. Mehta: Thank you for your letter, received September 19, 2007, requesting zoning confirmation that a dental office can be established at the property located at 740 EI Camino Real in Tustin, also known as Assessor Parcel Number 401=641-01. The subject property is zoned Central Commercial with Combining Parking District (C-2 P) and designated as Old Town Commercial by the City's General Plan. Tustin City Code Section 9233 et. al. does not allow professional and general offices proposed at the ground floor level or over fifty (50) percent of the total building area to locate on properties fronting onto Main Street or EI Camino Real within the Old Town Commercial General Plan land use designation. To locate a dental office at the subject property, approval. of a Conditional Use Permit is required and findings in support of the criteria listed in Section 9233c(y) would need to be made. The findings would need to include supporting documents and evidence stating that an office use would be more compatible with the existing and planned uses within the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies, such as the General Plan. Together, these documents seek to revitalize Old Town and encourage more retail and pedestrian activity in Old Town. As such, staff may not be able to support your proposal for ground floor office In addition, the use must be in compliance with the parking requirement for medical -dental offices: one (1) space for each two hundred fifty (250) square feet of gross floor area for the first 4,000 square feet of medical space within a building or center. If you have any questions with regards to this letter, please feel free to contact me at (714) 573- 3118. Si erely, A�4r� eina Kapadia Assistant Planner Attachment: TCC Section 9233: Central Commercial (C-2) S:\Cdd\Reina\Zoning Confirmation\740 EI Camino Real.doc Exhibit G Letter from McCormick, Kidman & Behrens, LLP, dated December 19, 2007 H. L. (MIKE) MCCORMICK' ARTHUR O. KIOMAN' RUSSELL 0. BEHRENS' SUZANNE M. TAOUE'1 DAVID D. BOYER' DANIEL J. PAYNE' BRADLEY D. PIERCE' ELIZABETH L. MARTYN' JOAN J. BENNETT BOYD L. HILL EDDY R. SELTRAN MANNAN BENTLEY" TRAM T. TRAN JOHN P. OLOWACKI 'A PROFESSIONAL CORPORATION tccomricO sPEc1ALIST - PROsATE ESTATE PLANNING S TRUST LAW THE STATE SAR OF CAUFORNIA BOARD OF LEGAL SPECIAL"TION "OF COUNSEL MCCORMICK, KIDM" & BEHRENS, LLP LAWYERS 060 TOWN CENTER DRIVE SUITE 100 COSTA MESA. CALIFORNIA 92626 TELEPHONES (714) 766-3100 (600) 766-3126 FAX (714) 766-3110 www.mkbiewyers.com December 19, 2007 Via facsimile at (714) 835-7787 and U.S. Mail David E. Kendig, Esq. WOODRUFF, SPRADLIN & SMART, P.C. 555 Anton Boulevard Suite 1200 Costa Mesa, California 92626-7670 Re: 740 El Camino Real Dear Mr. Kendig: LAGUNA HILLS OFFICE: 23001 MOULTON PARKWAY SUITE 220 LAGUNA HILLS, CALIFORNIA 62063 TELEPHONE (646) 464-2206 iJOp�N(UNITY DrVrl+�t � �`� We received your facsimile correspondence of today's date at 11:27 a.m. This letter responds to the outrageous position your client has taken. As an initial matter, by way of laying out the history of my office's attempt to obtain. public records from your client, I went to the City of Tustin's Community Development Department on December 11, 2007, to review documents related to Dr. Mirrafati's pending CUP application. At that time Elizabeth Binsack, the Director, told me personally that Planning Department files were not organized by address and could not be searched by address, but records could only be accessed by address through an index. The footnote in your December 13, 2007, correspondence stating that Ms. Binsack performed an index search "with" me that date is patently false. Ms. Binsack informed me that the index was being searched, that some records had been located, but that they were not yet ready to be reviewed. I have not seen the index nor have I been allowed to perform any index search of public records in Tustin to this date. On December 17, 2007, we received your letter indicating that the documents we requested would be made available in a timely manner, despite repeated protestations by you and your client that our request could not be understood and required clarification. The letter stated that records had been identified and were ready for review. McCORMICx, KIDMAN & BEHRENS. LLP L^WYWR9 David E. Kendig, Esq. Re: 740 El Camino Real December 19, 2007 Page 2 Following your instructions, after 4:00 p.m. on December 17, 2007, I telephoned the City Clerk's office and explained that I wanted to review the files on December 18, 2007. I explained I would arrive at 7:30 a.m., when the office opened. I was told that would be fine and that the records were ready. I arrived at City Hall on December 18, 2007, five days after you informed our office that records were ready for review. I went directly to the City Clerk's office, as your correspondence of December 13, 2007, instructed. There I was told that Redevelopment files were ready for review, but, that the Planning Department records would not be available until after 2:00 p.m Specifically, I was told that the City Clerk's office had learned on the afternoon of December 17, 2007, that the records would not be ready until the afternoon of December 18, 2007. Meanwhile, no one told me that when I called and specifically asked if the records were ready, and no one called to tell me that at any time. On the morning of December 18, 2007, I did take the opportunity to review Redevelopment files that were made available to me and I marked, using sticky notes provided by City Clerk staff, certain records for copying. However, given that I had to return to review the rest of the documents and search the index I decided to make all the copies at once upon returning. At approximately 3:30 p.m. on December 18, 2007, I telephoned the City Clerk's office to confirm the records were available. I was again told that they were not available yet, but the woman with whom I spoke told me she would call me back when the records were available. This morning I came to the office and received a voicemail message indicating the records would actually be available in the Community Development Office conference room — not the City Clerk's office — after all. That message indicated'I could return at my convenience to review the records and take copies. To summarize, our office scheduled time to review the records based upon your representations. The records repeatedly were unavailable because staff did not have them ready. Just a few hours later, we received your correspondence stating that we must review the records by 4:30 p.m. today or they will be re -filed and produced for review again only pursuant to a new Public Records Act request. This is not what you represented to the Planning Commission and it is contrary to state law. The Public Records Act clearly states that the access to records is broadly construed. Holidays or not, if you persist in that position, we will seek a writ and your client will pay attorneys' fees. McCoRMICH, KIDMAN & BEHRENS, LLP LAWYERS David E. Kendig, Esq. Re: 740 El Camino Real December 19, 2007 Page 3 Your December 13, 2007, correspondence gave the impression your client was willing to work with our office and Dr. Mirrafati to review the requested records and obtain copies as needed. Your letter today ignores Government Code section 6253, subsection (a), which states, "Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.". We have agreed with you and your client only to take copies of portions of the records that we specifically request after review. That is eminently reasonable. Now you have unilaterally attempted to alter our agreement without any notice (five hours is absurd) and without any justification (your assertion that "some" of the assembled records are "active" is vague and irrelevant). Our office will review the records as soon as possible. However, your client should seriously reconsider its position on this matter. Your client is systematically denying Dr. Mirrafati access to public records relevant. to a matter pending before your client's Board that directly impact his financial interests. Staff members are providing you erroneous information about their interaction with my office. The end result is a gross miscarriage of justice. Furthermore, your client has now taken ample time to purge files and delete electronic correspondences that were subject to our client's request. These events underscore the Staff Report's palpable suggestion that some improper motive underlies the Staffs recommendation to deny the CUP. If you have any questions or concerns about this matter, please do not hesitate to contact me directly at your convenience. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP Ail�, 61op, LIZABETH L. MARTYN JOHN PAUL GLOWACKI JPG:ddb MgC:oRMICS, KIDMAN & BEHRENs. LLP LAWYERS David E. Kendig, Esq. Re: 740 El Camino Real December 19, 2007 Page 4 cc: Sayed Mirrafati, M.D. Jerry Amante, Mayor Doug Davert, Mayor Pro Tem Lou Bone, Councilmember Tony Kawashima, Cowicilmember Jim Palmer, Councilmember William A. Huston, City Manager Jeff R. Thompson, Planning Commissioner Steve Kozak, Planning Commissioner John Nielsen, Planning Commissioner Al Murray, Planning Commissioner Charles "Chuck" Puckett, Planning Commissioner Chris Shingleton, Director, Redevelopment Agency Maria Huizar, City Clerk Exhibit H Letter from Woodruff, Spradlin & Smart, dated December 13, 2007 LAW OFFICES OF WOODRUFF, SPRADLIN & SMART A PROFESSIONAL CORPORATION 555 ANTON BOULEVARD, SUITE 1200 ■ COSTA MESA, CA 92626-7670 ■ (714) 558-7000 ■ FAX (714) 835-7787 December 13, 2007 VIA FACSIMILE AND FIRST CLASS MAIL Elizabeth L. Martyn, Esq. McCormick, Kidman & Behrens, LLP 650 Town Center Drive, Suite 100 Costa Mesa, California 92626 Re: Notice of Determination in Response to Public Records Act Dear Ms. Martyn, As you are aware, this office provides city attorney services to the City of Tustin (the "City") and has been authorized to respond to your request. The City has received and reviewed your December 7, 2007 request to inspect public records, which was received by the City Clerk on December 7, 2007. This letter will serve as the City's notice of determination as to whether or not the request properly seeks copies of non- exempt, non -privileged disclosable public records in the possession of the. City, pursuant to the California Public Records Act (Government Code §6250 et seq.) The City has evaluated your request in an effort to make a determination as to whether the request seeks copies of disclosable public records in the possession of the City. The City's determination in this regard is as follows. As you know, the Public Records Act requires the City to make available public records in the possession of the City in response to a request that "reasonably describes an identifiable record or records." While it is clear that there are non-exempt, non -privileged documents that the City has made, and will continue to make, available to you and your client in response to several categories in your request, we hope by this letter to assist you and City staff in describing and identifying the particular records you seek. 1. `All documents pertaining to 740 El Camino Real from January 1, 2003 to the present, specifically including, but not limited to, the Planning Department file for that address and any notes of meetings regarding this property." The City Community Development Department does not maintain its files on an address -by -address basis. For land use approvals, the City maintains separate files by the formal application number. An address -by -address system is used for building TERRY C. ANDRUS CINDY R. BECKER ■ EDWARD L. BERTRAND M. LOIS BOBAK ■ CAROLINE A. BYRNE ■ PATRICK M. DESMOND ■ JAMES M. DONICH CHRISTINA M. DOYLE JAMES H. EGGART ■ CRAIG G. FARRINGTON JOSEPH W. FORBATH ■ RICIA R. HAGER ■ BRADLEY R. HOGIN ■ DOUGLAS C. HOLLAND DAVID E. KENDIG ■ EDWARD Z. KOTKIN w ROBERTA A. KRAUS ■ MAGDALENA LONA-WANT ■ MARK M. MONACHINO ■ LAURAA. MORGAN ■ THOMAS F. NIXON BARBARA RAILEANU ■ JASON S. RETTERER r KYLE E. ROWEN ■ OMAR SANDOVAL ■ JOHN R. SHAW ■ MATTHEW R. SILVER ■ GREGORY E.'SIMONIAN KENNARD R. SMART, JR. ■ DANIEL K. SPRADLIN ■ ALYSON C. SUH ■ THOMAS L. WOODRUFF 557989.1 Elizabeth L. Marlyn, Esq. December 13, 2007 Page 2 permits and for business license permits; however, building permits are also categorized by building permit number. Thus, there are multiple land use, building permit and business license files associated with a given address. In order to locate all the various building permit and land use approval files associated with a particular address, a City staff member ordinarily must consult two computerized indexing systems (one indexes more recent files, the other indexes older files) and then the staff member retrieves the files identified in response to that research. In addition, the business license files are indexed in a third software system. Thus, there is not a "Planning Department file" for your client's address as the request is framed. Nevertheless, a series of records that have now been identified and remain ready for your review. It is possible that additional documents may exist that refer to the property but which are not contained in formal development application and/or in building permit files maintained by the City. For instance, the Community Development Department maintains chronological files of correspondence to the Department, which correspondence might pertain to informal matters such as "pre -application" communications with City staff. Those chronological files are maintained in date order, not organized based on their content, and those files are neither indexed nor readily searchable. If you wish to review the chronological files since January 1, 2003 to determine whether any documents refer to the property, those files will be available for your review. With that as background, the City has consulted the computerized indexing systems and determined that there are non-exempt, non -privileged files and documents pertaining to 740 EI Camino Real from January 1, 2003 to the present that have been, and that will continue to be, made available for your review. The files for CUP 06-14 and CUP 07-020 were reviewed, and copies made from those files, by Dr. Mirrafati on December 7th and by John Glowacki on December 11th. Those files will be made available again as well. Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). 2. "All documents regarding projects) within the Old Town Commercial General Plan land use designation, developed by or proposed to be developed, specifically including, but not limited to, those with/by McKenna, as well as DDA's or OPA's and offer letters." If this request seeks documents regarding just those projects developed by or with McKenna, then the City has determined that there are responsive non-exempt, non -privileged documents that available for your review. Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). 557989.1 Elizabeth L. Marlyn, Esq. December 13, 2007 Page 3 However, if this request is intended to request all documents regarding all "projects" in the Old Town Commercial General Plan land use designation, throughout the City's history, and whether or not the projects involved McKenna, then locating the requested documents would be enormously burdensome and time consuming. Hundreds of properties are located within that land use designation, and hundreds of project files would likely be responsive to the request. To the extent the request is intended in that broader sense, then the request does not yet "reasonably describe an identifiable record or records." In order to assist you in making a focused and effective request that reasonably describes identifiable records, the City suggests the following alternatives, one or more of which you may choose to pursue: (a) discuss with City staff the purpose of the request so City staff can better assist you in focusing the request; (b) the City will make available to you its indexing system of the Community Development Department permit application files, and the attached address maps, to enable you to identify and request the particular project/application files you would like to review. The City will then retrieve the requested files and make them available.' 3. "Any documents regarding pending CEQA review for the projects identified in #2." City staff is not aware of any documents regarding pending CEQA review of projects developed by or with McKenna. To the extent that item 2 seeks all pending CEQA review documents regarding all "projects" in the Old Town Commercial General Plan land use designation, whether or not the projects involved McKenna, then the request does not "reasonably describe an identifiable record or records." In a good faith effort to be responsive to the request, the City notes that such CEQA review documents will be contained in, or at least referred to in, any development application files retrieved pursuant to Item 2 above. In the event a CEQA document is referenced but is not contained in the development review file you review, City Staff will retrieve the CEQA document(s) and provide them for your review. ' The Community Development Director performed an index search with Mr. Glowacki from your office on December 11'h. City staff is prepared to assist In this manner again. 557989.1 Elizabeth L. Marlyn, Esq. December 13, 2007 Page 4 4. "Any documents, and specifically e-mails, from 2004 to the present, which specifically refer to Dr. Syd Mirrafati." The City has determined that there are non-exempt, .non -privileged files and documents in application files which specifically refer to Dr. Syd Mirrafati that will continue to be made available for your review. Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). . it is possible that additional documents may exist that refer to Dr. Mirrafati but which are not contained in formal use permit application files maintained by the City. For instance, the Community Development Department maintains chronological files of correspondence to the Department, which correspondence might pertain to informal matters such as "pre -application" communications with City staff. Those chronological files are maintained in date order, not based on their content, and those files are neither indexed nor readily searchable. Those chronological files since 2004 will be provided so you may assess whether any documents refer to Dr. Mirrafati. 5. "Any and all documents specifically relating to the denial of the CUP for 740 El Camino Real presently agendized , for the December 11, 2007 Planning Commission item." The City has determined that there are non-exempt, non -privileged files and documents In application files which specifically related to the recommended denial of the referenced CUP application that have been, and will continue to be, made available for your review. Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). 6. Any and all documents from 2003 to the present for approved uses or regarding proposed uses (whether approved or not) within the smallest (300 feet) circle shown on the map attached to this request (and attached to the December 11 agenda item described in #5 above). The Tustin Community Redevelopment Agency will provide those non-exempt, non -privileged documents dated between 2003 and the present that refer to any approved or proposed uses within the 300 foot radius. Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). The City's Community Development Department maintains. files of building permits and development permits that are searchable by address, as well as business licenses. Informal counter discussions about parcels within the identified circle are not maintained in searchable format, but might be reflected in documents contained in chronological files of correspondence maintained by the City. Those files are neither indexed nor readily searchable, so the City is unable to state at this time whether those 557999.1 Elizabeth L. Marlyn, Esq. December 13, 2007 Page 5 files contain documents regarding approved or proposed uses in that area. As a result, the chronological files since 2003 will be provided for your review. Finally, it is noted that there are more than 30 parcels located within the 300' circle identified in this Request. In a good faith effort to respond, the City suggests that the review of the index suggested in response to' Item 2 above will identify particular development application files (whether approved or not) that you wish to review that are encompassed within the 300 foot line. City Staff will retrieve for your review all such files that are identified. 7. Any documents re Tustin Motor Lodge located at 750 El Camino Way, including but not limited to, any documents concerning development or redevelopment of that parcel. By referring to "Any documents re Tustin Motor Lodge..." this request is overly broad and does not yet "reasonably describe an identifiable record or records." For instance, City documents "re Tustin Motor Lodge" might include zoning maps, flood plain maps, business licenses, phone books, water bills, planning applications, police reports, code enforcement files, etc. In a good faith effort to respond to this request, the City has run a search of the use permit file index system and will provide all development permit application files and building permit files for 750 EI Camino Way for your review. In addition, the Redevelopment Agency will provide those documents that refer to any potential involvement by the City's Redevelopment Agency in projects involving the Tustin Motor Lodge property. if you wish to review additional documents, please identify the type of document you wish to review so City staff can retrieve the appropriate file(s). Communications between the City and its City Attorney are exempt and will not be available. Cal. Govt. Code sec. 6254(k). Communications withheld due to the exemption in California Government Code section 6254(k) on the basis of the attorney-client privilege and attorney work product have been denied by the City Attorney's Office, Douglas Holland, City Attorney, and David Kendig, Assistant City Attorney. 557989.1 Elizabeth L. Marlyn, Esq. December 13, 2007 Page 6 To review the responsive documents, please contact the City of Tustin's City Clerk, Maria Huizar, at (714) 573-3025 at your earliest convenience. Sincerely, Woodruff, Spradlin & Smart David Encl: Address map sheets 557989.1 J H 0 O (� 0 w � 5 6 QQ_~ W w f. yIx W W ZW Z LC y 0� 8W 0 0 UU p Q� Z NJ ` tY h 0 b 'A 6 d ® (� �e Q W _ Jj �°a $ iii[ 9E uViouf 1•• Q . O N r L 2 i N £i dVW I If I_ I i I 1 1 1 I L— Z II�Y��Y�amwrVo 14 ml R Y�t,8 R� �A�A»�I A ; w1 on phi Q nr rss °Lt «1 IL i CII 7 V V r: Off at KI KI KI �( IL 1 L[I KI on N[ Nf N+� OH ,Ofl NI KtKA fit NfSSKt . - arm A tfr+ts .a. 1 trL[l A. 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Sincerely, Jon Draugelis Assistant Engineer S Wiscellaneous fngineering%Addresses OOM740 El Camino Real.doc Exhibit J Letter from McCormick, Kidman & Behrens, LLP, dated December 10, 2007 Dec -10-07 04:06pm From-NcCORMICK, KIDMAN i BEHRENS LLP 714-755-3110 T-062 P.02/07 F-403 N. r. IMIRCI MCCORMIGA, ARTNVR G. "IOMAN• RUSSELL O. SEHRENS' SUZANNE M. TAOUC" OAvIO D. SOYER• DANIEL J. PAYNX• SRADLEY O. PIERCE• CLIZAMUTN 6. MARTTN• JOAN J. 11C14141CTT 64YO L. N1Lb COPY R. SELTRAN MICmAEL 0. CARTER HANNAH 66NT1.XT'0 TRAM T. TOAN �OMN P. GLOWACKI •A PI10rC$11ONM. CORPORATION ICCRTIFICD SPSck"My • PROOATF CSTAT9 PLAMMNS A TRUST LAW TKG STATE RAR OF CA1Jr0*bIA rOARO Of LIE" S/LCwAAAO11 ••O► COON11621. MCCORMIC$, KInMAN & Bz33RicN8. I.i.P LAWYERS 000 TOWN CKNTI;k ORIVC SuITE 100 Chair and Members Planning Commission Elizabeth A. Binsack COST- sassA. c-TJjP0=nA 92626 TELEPHONES 171417950-3100 121001 750-3125 FAX 17141 706-3110 WW*.RIW"*V*V-1:aM December 10, 2007 Director, Community Development Department City of Tustin 300 Centennial Way Tustin, California 92780 LAGUNA ►TILLS O►F,CC: 23501 MOULTON PARwwAY SUITE 220 LAGu NA MILLS. CALIFORNIA 12067 TCLCPP.ONC I9401 404-2200 Re: Sayid Miirafati, M.D. CUP 07-020 — December 11, 2007, Planning Commission Agenda Dear Chair, Commissioners, and Ms. Binsack: Our office represents Sayid Mirrafati, M.D., and his company, Mira Properties, LLC, which owns the property located at 740 El Camino Real in Tustin, California. There is presently pending an application for a Conditional Use Permit ("CUP'l for that property to be used for a dental practice by Ashok Mehta, D.D.S. The stag is recommending denial of that CUP. This letter points out why that recommendation legally is incorrect and unsupported by the Tustin Municipal Code and the evidence. Therefore, we ask that this use be granted as of right or that staff be directed to administratively grant a CUP. First, let us provide some background not disclosed in the Staff Report. Unfortunately, Dr. Mirrafati has not been allowed to see the Planning Department file for this property and so we cannot ate you to documents in that file which provide this background. (We have made a Public Records Act request but have been told the file will not be available until after this hearing.) We reserve all rights to provide additional information and argument. Dec -10-07 04:06pm From-kCORMICK, KIDMAN A BEHRENS LLP 714-i55-3110 T-662 P.03/0T F-403 McCoxxx= KI:OxAN & BEHRENS, LLP (.AWYERS Elizabeth A. Binsack Re: Sayid Mirrafati, M.D. December 10, 2007 Page 2 Dr. Mirrafati is a cosmetic surgeon who purchased this property in August 2004; at that time it was being used as professional offices for an engineering firm. Formerly the property housed an osteopathic doctor and a chiropractor. In the 1970's the property was an antique store, but closed because the location could not support a retail use. Before he purchased the property, Dr. Mirrafati confirmed with Planning Staff (specifically, `Brad") thu the property could be used for physicians' offices. In 2005, he provided the City with architectural drawings to locate his office there. The City indicated for the next year that they would, "work with" Dr. Wrrafati, and that there were pending amendments to the code which would support his proposal and he would, "come out of the circle." In fact, that was not the case; as explained in the Staff Report, new, more restrictive office use provisions were pending. Any argument that Dr. Mirrafati failed to utilize the property is the result of Staff, "working with" him to allow its use. By 2006, Dr. Mirrafad had determined that he would sell the property because of problems working with the City. I4owever, when buyers approached the City, they were told that they would have to have at least fifty percent (50619) retail to be able to operate at the location. This occurred despite the fact that the ordinance imposing such requirement did not go into affect until October 18, 2006. In fact, before that date (i.e. before there was any retail requirement) Planning Staff administratively granted a CUP for the property for Tutor Whiz. Tutor Whiz is not a retail operation, and only incidentally sells study materials as part of its program. This CUP remains. in effect but apparently staff does not consider the use to be "long term" At this point, Dr. Mirrafati finally has found another buyer for the property (although at a reduced price). Dr. Mirrafati and Dr. Mehta have finalized a purchase -sale agreement for the property and have entered into escrow. One of the conditions of the sale is that Dr. Mehta be permitted to use the property for a dental practice. To that end, he has applied for this CUP. We have recently received the Report to the Planning Commission regarding the application, although as discussed in detail below our client has been denied any opportunity to review the planning file for the subject property. Our review of the Report shows that a number of aspects of the Report are unacceptable and its recommendation that the CUP be denied is not supported by law or fact. Dec -10 -OT 04:07pm From-McCORMICK, KIDMAN i BEHRENS LLP 714-755-3110 T-062 P.04/07 F-403 MCCORMICK, KX13XAN & BE HRENS, LLP LAWV MPR8 Elizabeth A. Binsack Re: Sayid Mirrafati, M.D. December 10, 2007 Page 3 MENEUDW-Mi FM - X -! ,- Nsae No CUP is necessary for Dr. Mehta to operate a dental practice at the subject property. Tustin City Code section 9233, subsection (a)(l)(g) addressed uses permitted as of right, and includes `professional offices" which do not front on El Camino Real. In contrast, Section 9233, subsection (c), sets forth Conditionally Permitted Uses for the Central Commercial District that the subject property occupies. Section 9233, subsection (c)(y) specifically regulates, "Professional and general offices froMW2 onto Main Street or El Camino Real ..:' We have found no definition of "fronting" in the Tustin Municipal Code, and so we attribute to it its common meaning, i.e. that the front entrance of the building is on that street, particularly since the point of the new subsection is to attract retail customers. While the subject property's address is on El Camino heal, the reality is that the building on the property does not front on El Camino Real. Instead, the front entrance of the building faces southeast, directly onto El Camino Way and on the opposite side of the building from El Camino Real, which runs behind the building. The northoast facade of the building, which directly faces El Camino Real, does not have any windows or would not be allowed for signage. The parking lot is to the south and southeast of the building, with driveways from El Camino Way and El Camino Real. The Report assumes without discussing that the subject property fronts onto El Camino Real. Plainly, the building does not front onto El Camino Real and as such the property is not subject to the requirement of a CUP for a dental practice. Rather, Section 9233, subsection (axl)(g) applies and the dental practice is a permitted use. Therefore, the use is one permitted as of right and denying the CUP is irrelevant to any owner's ability to operate a professional office at the subject property pursuant to the Tustin Municipal Code. Even if a CUP were necessary to operate a professional office at the subject property, the requirements for issuing a CUP have been met. The Report fails adequately to address the factors set forth in Tustin Municipal Code section 9233, subsection (y). As to subsection (y)(1), the professional use would be absolutely consistent with existing uses. The Report acknowledges a history of office use as far back as 1972. Office use continues to the present day, as the building is presently occupied by a tutoring and counseling office. The Report flatly errs in stating that office: use lapsed for more than twelve (12) months after adoption of the new retail requirements, as the tutoring and counseling business with its minimal retail area is certainly a predominantly office use as opposed to retail and was granted weeks before the new ordinance took effect. As such, pursuant to Tustin City Code section 9273, the purportedly nonconforming use is "grandfathered" into compliance. Indeed the present building is not amenable to retail use. Dec -10-07 04:04m From-McCORMICK, KIDMAN i BEHRENS LLP 714-755-3110 T-962 P.05/07 F-403 McGoxxicx. KIDMAN & ftus we, Lip LAWYERS Elizabeth A. Binsack Re: Sayid Mirrafati, M.D. December 10, 2007 Page 4 Subsection (y)(2) sets forth five criteria, "one or more" of which must be met to support a CUP for the proposed professional office use. Satisfying any one of these elements justifies granting the CUP and there is no "inability to positively make" the necessary finding as to any of the five criteria. Subsection (y)(2)(a) states: "The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit." This building was designed for office use and has been used exclusively for office use since at least 1972, as the Report acknowledges. The current use is predominantly as offices. There has been no lapse of any length of time from the office use. The Planning Commission already approved a CUP for the tutoring and counseling business, which is substantially similar to the proposed dental practice; in fact, the proposed use would likely generate more retail business than the present use. Subsection (y)(2)(b) states, "The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments." Here, the building faces directly away from, and lacks any entrance or even windows facing, EI Camino Real. It is unreasonable to conclude that such a facade would entice retail foot traffic. The Report's conclusion that the building is a "prime location for a retail establishment" is directly contradicted by the numerous potential purchasers and experts that Dr. Mirrafati can identify who would testify that there are significant obstacles preventing any predominantly retail use of the building. The Report here explicitly acknowledges, as stated above, that the present use is an office use even though immediately above the Report purports to rely on the statement that the current use is retail. The Report's conclusion is simply unsupported by the facts. Subsection (3r)(2xc) states, "The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail ostablishments." This is satisfied here because the existing building would require significant reconstruction to accommodate any retail use and it is not economically feasible. As noted above, numerous potential purchasers and experts will testify that predominantly retail uses are not practical absent significant reconstruction. The Report acknowledges that, "the building is currently oriented towards the interior of the lot," and relies on the notion that "the addition of some storefront elements along the elevation of El Camino Real could feasibly transform the structures to accommodate retail." This conclusion is simply unsupported in fact given the design of the building. Placing a sign on an otherwise bare wall — essentially what the Report suggests — will not transform this building, which in its design and prior use is shown to be clearly for offices, into retail space. Once again, the Report explicitly acknowledges in its comments on this element that the current use is as an office and that the building's design and orientation are best suited to office use. Dec -10-07 04:07pm From-McCORMICK, KIDMAN i BEHRENS LLP 714-755-3110 T-962 P.06/07 F-403 McConbaox, KIDwAx 8c 88E HENS. LLP 6AWYCRO Elizabeth A. Binsack Re: Sayid Mirrafati, M.D. December 10, 2007 Page 5 Subsection (y)(2)(d) states, "The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand." In its analysis, the Report conveniently and inexplicably ignores the fact that the nearby "retail" plazas on which the Report relies to justify denying the CUP actually contain both a dental practice and a chiropractic office. Such offices are commonly found mixed in among retail establishments across southern California. Certainly these uses are ancillary to the remaining mixed uses in terns of type of use (there are other professional offices), hours of operation (which are similar if not identical to most retail establishments), convenience, and parkmg demand (the Report ignores the fact that there is insufficient parking under the Municipal Code for retail use of the building's square footage). . Subsection (y)(2)(e) states, "Tho proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments." The report suggests, in analyzing subsection (yX2)(e), that a dental practice would not attract "multi•trlp retail" customers to the extent that a travel agency or tutoring facility would attract. This is mere conjecture. One might just as easily conclude that patrons of dental offices do visit additional businesses in the same trip, and there is certainly no support for the notion that no one is ever dropped off at a dental practice as a child might be a tutoring facility. The conclusion is unfounded. There is no inability here to find positively that the proposed use is beneficial, complementary, and compatible with surrounding uses. As noted above, there are already professional offices mixed in among the surrounding retail uses, specifically including a dental practice. Lon&Tm Use that Would ftuire ftwent of Relocation Costs in the Eymt of Throughout the Report the Planning Commission suggests that the dental practice would "not be more beneficial in implementing applicable land use policies" (page 3), "lengthen the nonconforming use indefinitely and hinder the potential for retail or redevelopment" (page 4), "necessitate tenant improvements ... impairing the opportunity for retail at this location in the reasonable and foreseeable future" (page 4). Taken in its entirety in light of the specific points lacking support cited above as well as the overall lack of depth in the analysis of the Report, and considering that Dr. Mirrafati was refused the opportunity to review the public records in the planning file, the suggestion of an improper motivation for denying the requested CUP is palpable. We do not know what the Planning Commission's motivations are, but it is clear that the Report on its face does not justify denying the requested CUP. Dec -10-07 04:08pm From-McCORMICK, KIDMAN i BEHRENS LLP 714-755-3110 T-862 P-07/07 F-403 MCCOBMICN. KID39AN & BsHAZNS, LLP u►WYEAS Elizabeth A. Binsack Re: Sayid Mirrafati, M.D. December 10, 2007 Page 6 A cause of action lies where a public agency takes pre -condemnation steps that drive down the value of a property. At the time Dr. Miirafati purchased the property, the previous owner also was approached by the developer of the nearby strip center. The developer determined not to make a offer on the property because he could not acquire the motel, but staff repeatedly has indicated that the City or RDA is interested in acquiring the property because it is the "gateway" to the area. The long time delay, inconsistent answers, intentional misinterpretation of the code requirements, and finally denial of access to public records strongly suggests there is an improper motive here. Now, the agreed We price represents a significant decrease in value since the Planning Commission began denying other similar CUP's in the same area. If the City intends to condemn this property outright then it has no right to drive down the property's value in advance without paying just compensation for what amounts to a pre - condemnation taking of private property. The repeated references to redevelopment in the Report suggest this might be the underlying intent. "That is absolutely not a proper reason for denying the requested. CUP. Please contact us at your earliest convenience and in advance of the hearing tomorrow to discuss this matter. We hope to resolve these issues quickly. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP ABETH L. MARTYN JOHN PAUL GLOWACKI JPG:ddb cc: Sayid Mirrafad, M.D. (via U.S. Mail) David Kendig (via electronic mail at dkendig8wss-law.com and U.S. Mail) Exhibit K Letter from Jigar Shah, dated December 20, 2007 Ca :='O�Nz Discovery 100 W Valencia Mesa Dr. Fullerton, California 92835 Business (714) 626-2000 Web Site www.C21 Discovery.com Office 1982-2005 December 2012007 To Reina Kapadia, Associate Planner City of Tustin 300 Centennial Way Tustin, CA 92780 Dear Reina: RE: Conditional Use Permit for 740 El Camino Real As you are aware we had submitted some information on 12/11/2007 relative to this property being in the market listed with Evergreen Realty in 2005 and 2007. I am also enclosing the listing details of 2006. I am also aware that there were several inquiries during such time. I am also made aware that majority of the potential buyers were either Dentists, Physicians or a Professional wanting to open an office rather than any kind of retail. This property is about 1768 square feet. If someone buys it for about $ 1,150,000 and ends up spending another $ 500,000 to $ 600,000 towards making a retail outlet, it would become almost $ 1,000 per square feet. The rents do not justify under such scenario especially since it is not a major thoroughfare. I am convinced that a Dental office with retail component would bring more business and prosperity for other businesses and City. Thanking ou, Ji ar Shah (JR) -4 STANDARD OWNER -AGENCY AGREEMENT FOR SALE OR LEASE OF REAL PROPERTY (Non -Residential) AIR COMMERCIAL REAL ESTATE ASSOCIATION 1. &ASIC Pwvworn ("BASIC PROVISIONS'. 1.1 Partes: This Owrw.Agency ApremtaM ('AynanarK"), dead for rebiwphrpaaas only March 13, 2006 is nada by and eetwswr Sid Mirrafati, M. D. whceeaddkaa N 11101 Bryan Avenue, Suite G, Tustin, CA bMphore number7ij 544-8678 Fax No. �) ('Own -,and Lee c Associatesm - Newport Beach, Inc. whose address Is 3991 MacArthur Blvd., Suite 100, Newport Beach, CA 92660 tleplherermonW 9( 49)724-1000 Fax NcL 9L4D 833-0608 („Aq@W� 1.2 Pn*wW P mkm The real property, era potion Moved, which b tie ui*d d tis AWownwt is commonly town by tie sbsst addrea of 730 Sl Camino Real local id h Ms dry d Tustin Cow* of Orange Shod California and geneey dsabed a (dasabe bddyto rsbr* dims propart* an approximate 1,747 square foot office building on approximately 0.23 acres ("Propsmilo. (Sar also Paragraph 3). 1.3 Two d Apraarnent The iemr d this Agreenrnt shallconrnenos on March 15, 2006 and expire at &W p.m an September 30, 2006 ,except a A any be de0erhded ('Tenn'). (Sae also pwapraph 4) 1.4 Th n willore The nahm of tie transaction cararrirg On Property for which Apert le artgbyad ("Transaot w-) is (cl" time apprapr.. bac(es)k (a) ® A sale for the fallowing ado price and to., at terma acceptable to Owner, acceptance being a fully executed purchase and sale agreement and other admerei sbWdrd lards researtly Oder to Mose cortatrd in tlr 'STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR THE M004AN OF REAL ESTATE' publMulf by Me AIR Cortewcbl Real Eatate Association ('AIR"). or fa vAA ddur price and lams swami* to Oww. (b) ® A base or other lrwry for Me blowing rant and ton, at terms acceptable to Owner, acceptance being a mutually executed lease document and 01tw add liorW stardard krm ressonaliy siriar to Mhcee=Aolned into spproprfals AIR lease form or for such otisr rant and Ums sWeatig to Owner. L EXCLUSIVE EMM.OYMBIT AND RI MM 2.1 Owner Iweby enpbya Apart as Owrrh sola and eecueive apart to represent Owner in the Tranncbn and to And des or Mumu fonds ("basso -1 as Lha aea may be, fa Mu Prop". Ag rt shat use r mm* No eBoAs to SW ouch buyva or bassos. N negotiations and discussions for a Transaction Shat be orhdnueled by Agent anlel of Owner. Own shot p o.q* loch.s and reler to Agent all wrMlen or oral khghirbs or oataeM received by Owner bons any source reperdrg a poable Transition. 2.2 Ower mA hartass Apart Loc (a) Placa edwa I I al" an ft PmpintY7 (b) Race a lock box an dr Properly 9 waderml (a) Accept deposals Aram pclsrtW boyars or looaaK and (d) Dkbftft 4 ft. oft uenrg Me Properly to perMcperts In THE MUI.TPLE ("MUL71111.1i7 of the AIR arWlor any otisr appraprlsY low connsrolat na It' MV savtoe, to other brelmens arta to poMtiei boyars or ba of Ms Properly. Owner shod ids" as'mrdidethr any khiortoetioh ProMdsd t Apert that Owner dxrneiders mrn111 8 ll and dos not wart disclosed N other housing" pnovldsd by Ower may be disclosed as Agog may tleern appropble er.. a y. Aftr consummation of a Transaction, Agert may publicke tie lens d such Transaction. 2.3 Agent shod con" with the Rdes d ProbselorW Conduct d tis AIR, ala member or ff not, the Rhea of RobseiorW Contactd Me Society of IrWdrkhl and C alice Rssi , and shod sulond the Property Io the MULTIPLE. Agent shod m 1, - with partkipanfs In the MULTIPLE and may, at Apart'* alacliarh, moperab with ocher real able brabn (ooleclivey -C 1, p g Broke. A C m mi; M q Brobr may. as a MMW--psrty benoddary freof, aft Me elms d tits AWeenwt ag** Oww a Agent 2.4 N Ms Transaction la a cab and Alert ends a prospective buyer for Mme Property, or if Me Transaction is a kava and Agent Ands a prospective Moss for tw Property, Owner hrob7 aWsrlaes Agent also to represent end ad a ods agent for such buyer or bog, and Owner conorts to axil dual agency. If a Cooperating Broker bds ach a buyer or base*, then Agent shod ad a apart for Owner only, tin Cooperating Broker shod add as agent for Ms buyer or Noes arty. aid the Cooperating &old eisl not be Owner's agent, even though tin Cocperalkhp Broker may share In Me coni niseion patd by Owner loAgent A Cooperating Blamer shat not bean agent or subagot d Owrw a Apert. 2.6 Over agnea OW Apert may, dakg efts ordrWy and ,NN,I mm d nwkedrhg tie Property, respond to km itikbs on Me Property by showing and pmvidrp idarmaft an ode Property. as well a an Ww dxxrii; slkg properties, to prixWocBw buyers and bases and that such adiMUm may read k, tis payment of a mrmtolon m Alert by a NO party. 3 PROPERTY. 11 The Nrm 'Property" *0 kxkmft d of the billowing whin ere cAw* baled an Me Property and owned by Ower. pertnonert improvernsnb. elsdrtcel d ialr budon sySlertr (Power panels, bun dreWg, cwxkft dbaoraeds, tghikg Hhdues, s1c.l tolopho s dsUlbmicu syabrrs Ol es. )acre and connections). space heaters, air conditioning oWipnent, sir tna. carpet, window co erkgs, wet -Ings. Partitions, doors. swpended callings, buB-ins such se Al and 41L- IMTIAILS llamas -011997 - AIR COANtERCIAL REAL ESTATE ASSOCIATION DEC 2 0 2007 FORM OA-14SM COMMUNITY DEVELOPMENT BY RK (if fire are no add"WW Name wrils "NONE'). if the Treruacuan is a sale, the leas -PMPW rind adds -* holude, to the extent owned by Owner, of and mnard riphh, lb— end other apoWrnnb whidn wM =*m in eyed WW Oww's boner dfife to tha Properly. 3.2 VMfh Ms buaiwss days titer dM crrrrwmnm t d fe Term hereof. Owner shall provide /pant wfh the Mowing: (a) A duly and hSy eaeaded pity tnfrmedon Shat On to mod arrant form Published by the AIR: any ollm (b)Copiespies of d , et"I"ISes, nidal apreemw b, optlon rights. V b dflyd MMM, d" of OW oder. or other doc rraft conioni g right, ability and copedly to coneuraele a Tra cmc on, ad (c) N svaeble b Owner- MOM Of building plans, and N the Transacfkn Is a sae, We reports, boundary surveys, and sxNfng nobs and tont deeds which will CW&M to affect the Property Mar consuranafon of s sale. 3.3 Agan shell haw no responslbNily, for maintenance, raper, upleernen, operation, or secu ky of the Property, all of which shall be Owner's $ole —P-mb ft- Xkte= caused by Agana groes ne9119 1 1 , Agent shall not be Nobe for any los, drnage, or khlaa7 to the pare, orproperly of Ower, any Mumma of tea PMPerh. any buyer. P -P@W- buyer. louse. Cr prospective seams, Including. bad not idad to. free which may scar as a result of AgWs use of a lock box 4. EXTENSION OF TERM. If the Transaction Is a maim, and a sale N not comunrnMed for any refer Mar. Owner accept, an offer b Purchase the ProPery ('Sha ASresrmerd* , Nen the =pkaton dab of the Term of Mb Agreorne t shall be extended by the Member of days that elapsed between the dab Owner e -ft into the Sale Agrearnant and the War of the dab an Midi the Sob Agrsanmd Is XermYWad or IM deb Owner Is able b Canvey tib to a now buyer free and dear of any cigars by Nae prior buyer of ft property: provkled, hm~, In no avert duh tea Tam be oro extaded beyond one year hos is dab the Tenn would have otherwise ay1nW. tL COMMISSION 5.1 Ower dull pay Apert a commission O In the asout d ® In accordance wfh the commNskn schedule ataehhsd Nee PAgneed Cauutedea'). for a Trrmadlan, whether such Trarneddon is consurmaled as a roast d tea eft d Agri. Ower. r soma of er person r rtfy. Such Agreed Con odsolon la payable; (a) N the Trarsactlon le a sale, p) a buyer b proenred who le reedy, wnlfrg and able b buy Iia Properly of tle puke fact on da tans abed harsIrt a on any Wier puke and Mss apreesble b Ower; (1) Owner breaA or n1pudWss any Sale Agnernrt, escrow bnhwhdiowr or afar domanertm raakbd by Owner regrdng go ace of to PropaAy: (In fe Property or any IrtaSd term is vokrft y or knoknbrily, mond. carnSyad. corprbuled r lrasfernSd; (M the Property r fly Irtered tltarsIrh le tdaen erect fe prhwt d Ehrhken Doomh r maid udt that d oondw,po rt, or (y N Owner Is a PNVWM*, joint vendee, M N- labfNy, oanPery, eorparsforh, bust or afar enfy, and any irhlgrad in Ower is vokatrfy or rhwkbrfy act,nrbuae ced, conveyed ar b -ids. b ander person rnfy etedt as fe dab lme does rat have any ownership kmtest In (b) N the Trensedlok lea Name. (QS imese d the Property, arm p. m. thereof le ado Ae* r W a le=as le proaaed whole ready, vdMrg and able to lea= the Properly duh tea Irma VAW hnsnbf r an S y der ren ar d►r teras some" to Owner or Tnrsadloc)(� treats Owner (9 ranuovSs r vwhdrays the Pkopaly ham a Trwuacilou r the mullah M ads as N the Property Is not wallahs for a Prepay M (M) l le I e (vq gorse not avelliable for the stabr r the Tmmwk t (ih bneadea IN * dsrhoelm r repudi es fta (v) rsrw I the charge sdvamey Ir►4ads fe value. me, d=ksbNNy r � of the .n physical °ondM°n r cheer aapecls thereof vhdah each 5.2 If the Tra sadion is a sale, the purchase agreemay sndlr escrow ksuudkns to be rdered into by mid behween Ower and a buyer of the Property shah provide i et ( bIrrevocably' skcab the escrow holler b pay nom Owsfs prooeWs accruing xruing do rxrst d Ower d the dam da asow to Agreed Conunimalon asadxv and(b) A �vferncN to fa consorrenfan d the ads SW be ft payment d the Agreed Campion b Apert at r prior b dose d to (c) No ohm" shall be nada by Owner or buyer with reaped b Xaa from of, amount of, or the = WNrs b Psymrt Of to Agreed CortrNeekn, without AWft wow conger. 6 ALTERNATNE TRACTION If the Tra sadbn dlerqu b any adwr bwmaden. kndduWng, but not idled 1% a sorb. aaxhhrge, opfon b bur. aged d fist refluw, 9rehaad lea= Naas sable... or asalgranrt d loon (ooAed+bey "AUrn uw. Traemoon'. fen Agri meth apauWdWy be Owner's sole and acJhnive Agan for such AWn We Trrsmilont and kepressrk Ower In much Abrtutlw Transadlon, under ft IN., and = Wtore of ft, Allremenet. If, during to Term hued, an AimrndbS TUW=Ctlon is ammSd Irmo, than Owner aid pay Agan de Agreed Commisslon. 7. EXCLUDED AND REGISTERED PERSONL 7.1 Owrr def, wtdh he buutnsw days aft fa dob hereof provide Apant, in wrMIrg, ve to nsntao of dame persons or arhne with Ower by any Crier brow user any Prior ager-- a dexw,g the Properly ("fteidod Pamew , ses Pang IN 7.q. Owner MSW d8 Wm* for ash P�aWed Per" to type d transaction the orasumulbn dw hid duty to Tam dmn db Agreaaanffme such dhsr brdht to any cornice a I rErdudd Tfwmw cn l N Ower tlnuy provides Agri wfh the ru mme of to ExftW Pagan and shpso*1e to Excluded Transaction for aria Enddeded Pagan, than the Agreed Corn lesion Paid to Agent with reaped b ou>rnwrrnaibn of such an Excluded Transaction with anExcluded Paean shel ba ilttad as foNove: N such EckxW Trasactlon Is concluded wrtn Una tet away days of the corrxrene novo d the Term hared, ten Aged aid be Paido owr*TiW m equal b the fea=keble ouW-px uta mwa Irkxurad by Agan M to r uffindg d fe Property dukg =id thirty days or N sada Bmkubd Tran sedion In coniufed dukg ft rakekdt of the Tam Iaea I I k ten Agent shelf be er N to a axrsrbdon equal to coshed of Ma Agreed Cannbska 9 to apodf W kh[a Oft n concerning Excluded Penns and Tronaadione b riot prevkled ore ad Wh hrokn richt alae be conclusively cleaned to two are ns Exd WW Fargo, 7.2 Agan gid. will k Im business days alt to aFadea of fe Tam hewed, Protide Owner. In write YAM ft none of tame persons or and ePeeh fe typeAg int all tlonwfne or deahgh a ,- braIrr Md nspofoW during to Tam haed("Rglebrad P"mo u', orae psen8 P 7.q, who a a* t wrN1an olio orlen of d kme� for wh idh such nsprrtlallorns was orduigd ("Rogbbrd Trans=dom" . Thais Paeans orahtlfes the arbjed d such der r MW of btant Agent hills b Ower d tui cher RsgfMaad Farm Man R dry be conclusively dmenhad thgt 0me era no oder Rags - 'Peers A person or ally shell not be a Reglebred Parson N Agent tafs to they epoch a Regkdted Traetlion far such peen orenft. N Agri rwbhas to regbler de filen d e CmhpaaSg Rolusr, Agri muel obbih and aftet b Owner wdfrh approval of each npNtrapaa silted by such Coopareig Sadat. Thai -, are CAWS tat VO repMfratan d arfah individuals arxter smiles Might M" a Dual Apsnoy, ad Ower hereby comauls to any such Dual Agency. 7.3 N, whin one hundred eighty days air de sxpiratlon d Me Tam hand, Ower anlere kto a crxaad wfh a RegbtWW Pwacn for forty fe Re(jdWedd T Traneeden. ten Ower ChM, upon cxxwawalbrn d such Rs9' A Trtnacton. Pay Agent ft Agreed Cormdaalon consuarnslon 7.4 N, with one h ndred mighty days filer the expiation d ds Tam iwsbf Owner fames int, erecter owner aganahy a Netrg agrS Wnat with a bola cher than Ager for any trarsaotlen Owmftnnp Me P -Moly, Man Owner shall provide to Ow eft new broker the names of the Regebaad Persons and the Reglpted Transaction for each R 1 gi I POOH and provide in such new symnet Met the new baokt and not be ermlled b reoabe any d ria OMMOSfon payable to Agan hereunder for cone. nafan d a Reg- 1, TaWaadion wtM a Regislased Person. 7.5 In order to queMy b be an ErcLred Parson or a Regetered Parson the Individual or enfy must her (owed the property, &or*W a Istt of Interest or' - andlor meds an kir to buy or Name de no". In adid-a, Eakided Person may only be ropi le - by a broker who prSMoaey had a wfd biag aprSsnwt oaarkg the Property, and such trier may rty, rspleler khdlwidusle and antl' aduafy proceed by Barin Ndng hr A L OWNER'S REPRESENTATIONS. 81 Ower representsand "Mute diet (a) Each persue executing ft, Agreement an bsst of Owner has the full right, power arid aL'ft* to exadxda thio Agreement as or an behalf of Owes; (b) Owner awe to P►opaty WOW has ft hall right, power and aWeriy to exsects ted AgraWnat ad to corwNrenale a Traoadion as provided Omsk. ad to pertorm Ow nWs obfpaliar haaandar, (d) Neither Owner nor to PMpWy Is to subject of a bankruptcy, insolvency. probate or conservatorship proceeding: S PAGE 2 OF 3 _AIL INITIALS UNT1AL8 011997 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OA-14NM M naa. wrY �wwMM �rerNrr�alrNAmps, rw ill%boasts "M �r L �rOAar aMra 4lLM0,111 awdyba'"."Mb rRmooftoAKd h oft ��'wMNYN.M��rr wo ow la, am arna h�.+gl�i,.,+�r+ +wfl� p,�M�1.rN�M�l�rn ri�r,lr~„'+rrraMN..r am- Mohm -04 *soft aawahrrrwrwry� uwgraNlba,O�ya� am* apa r+r flb/A rlArmaaM„oonwho M01evem"Mrr r'rnr°"wGrA al4wr IOUs bawksamut mow,* Wain MYftpw 4wrMrWrwrm w are r �Mlrra Ar MaF r 1 mer mob "Moor Awaa nwuF "Alm pwmmm a llli AVOIR AlriNum -A' p1Fll alf7l � flflOfp ON tlllfla fMllrr UfLpN WIN aaNTlfa NIW{ PLAM MGN NOTWA Iaf mMpAONMa+11, 1L Aeptwrl lYMWaM Ado -o nod m dob AVMWW4 w @01NM is" lrM7/ ***War b W O&WAM SUMW %war ad an* aardhwdwrbftdpwgft .Mrl t! (la W a aw r aaalan✓ rwiir Mr'NOIt'k n o.wra..yadahbw ApiaraWY./.Ir�11r..wra�aAwwaMMiMa�w+•ran�+Mv aaarw.ra w aWrO p In"mow eAbftAV" mmmm$lMAw bforww"ftApL M I rlwllandharlhrryavaaWbMIlaaMrlaaMbrdrrQ*dP4,rardOpMW WElywr0++wanp AV ..Iww aarra I� Af7WW Sid NSrr t r b. Lao [ AssoctaCMp - NawNoat anal ib0, Was, daCbm / Andrew lefln� fFalr !id swtl, r.b. Qaat fh1Nf apses WAN SM" "MMaMWU MO -MOV "ft-4fi--aJWMdVj-aft aralr�tMrwa.wwyaaaa�wary lhapraw WNW AINOhrIMYltMd EFraAMINrN1 leefi/4rra. 000% IMAWIMCA0al. *w++. MA" WF -W". ftlimaM910411M <rMMrr WAIO B rowm embo—Ap+ so -:r- Nhasv • ualAu �- alw.AwoorrlotALfIGL �aAnAaaoohafCN - POM OA44WO (d) Owner has no nock a or knowledge final any lessee or sublessee of the Property. If any, Is 8e a, of a bankruptcy or Insolvency Proceeding: (e) Then aro no effective, v8W or erMareable option Tighe, Tighe of Ileal refusal, rights of kat offer or any otter realridbm, impedknenis or Iknitatknn on Owner's right, abBly and apecty to ooroumute a Tnnsac on, mmept a r9edoeed in vaiMp pursuant to Persgraph 3.2(b). 9. OWNER'S ACKNOWLEDGMENT& Owner adowiMedgaa Bat t hes been advised by Agent to con vult and retain m" is to aawn and represent it aoncrrlrnp the legal and tax aleds of this AQsarrwrt and consummation of s Transection or Alternative Trarsaotion, as well as the condition ardfor IegaRy of the Property, kwkdng, but not Iod lo, the Proper" h prvmnw b, egL*mmN, tog, enanlaes, We and envIr mnrMal atpsott. Agent thud have no ob§98d n to kmvoMpae Orly arch males unless mprossy dUW- agreed to In writing by Owner and Agent. Owner 5atiw acknowledges that in det'ermiNrp 0e Brendal samdrees of any p ospective buyer. lessee or seaOMtr offined Owner ori rdy goely upon Ow nWs awn kwas9ga00n, notwMd&rdkhg Agwft assistance In gs erkq such kufonmmM 10. MISCELLANEOUS. 10.1 This Agreement shall not be Construed eblar for or agatd Owren ar Ag@K bIM alrd be hbrpratedea MmW and enforced inaccordance with the mutualknim of the PwOms asoertakeble from the Irptags of fIN AWsernrM. 10.2 AI Paynmi l by Owren b Agent std bs made b ewld l l I ' Stator currency. If fawner fob to pay to Agent any amount wlen due radar Onix AWeemmM, titer such mount slat bear Irnlenst at its rift of 15% per annan or the mndmun rite allowed by law. wifthem is Ices. 10.3 Ir Be event of WJ980 n or arbitration between or among owner. Agert a Cooperating Broker. ■ buyer, prom molve buyer. Iesses. or prospective Waves attww/s lees and � by g may, TIMof I m 'Preying PuViI M ka3ds iknnilato 0A Agreement at �Ban, oris who s obtains � sinal daftft be paid Ne relef sought, as Be ase may be. whWw by ewp wfte, es8lan@ M, Ott or Its sbandomnent by Its olm dalm or d«efsrai The attorneys lees award BW not be campu xI In accordance wih any court be adednie, but std be In an amarnt to fully reknbase M amornsys fess reasoreby Incurred h good felt 10.40wrw agrees ti kxkwFm*. defend COO counsel reamoreby acceptable lo Agarq, and tad Agent harmless lkam arc agakd any dales or Iabft assured agakd Aged as a re" of the falum d Omw to ode • fuN ew , , pNls dedcou a pursuant loew and psragaph 3.2(a) or es s result of the (ad drat any of tte represMaliore mads by owner (sus parmprop' 8) were not Inas it la time Mal # s Agreement was algnad. 10.8Aww tweby mbow':rd reUm Ap K and wakss Ow mfs od .Vt of neoovwy agakd Apart, for died or omsequwtd bes or damage rfstrg out of or kfddent to the part covered by Insurance eared by Orww, whMw «not dust 0e oegigarroa of Agrht 10.8 In Ne evert OW tie Transecdon is not an oubgtM mala. Oases agrees lel N Agent is not paid 8e Agreed Commis -,n pravlded for hrekh wdM achy days of the date dura, VW Agent *" taus o bn inle rroW of such cenurlsalonL and may meoad a r I& of suchInn, .paled Ute prof)". 11. ARBITRATION OF Df@PUTEL 11.1 ANY CONTROVERSY ARISING UNDER OR RELATING TO THIS AGREB* T SHALL BE DETERMINED BY SINDIk10 ARBITRATION TO BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION W ACCORDANCE WITH ITS COMMERCIAL RULES. ARBITRATION HEARINGS SHALL BE HELD IN THE COUNTY VYHERE THE PROPERTY IS LOCATED. 11.2 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEOIG TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES' PROVISION DECIDED I3Y NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GANG UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION. YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CML PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. 11.3WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE To SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION. Ownees INUals Aganty Irytlale 11.4 THE PROVISIONS OF THE ABOVE ARBITRATION CLAUSE SWILL NOT BE BINDING ON EITHER PARTY UNLESS BOTH PARTIES HAVE PLACED THEIR INITIALS UNDER PARAGRAPH I I A 12. Addabaal PrevWeaal Additional Pnvislore of Bim AWeanant ens est forth In the lalm I blank bm or In an addendurn a8adnsd hare-, and made a part hereof co all*9 of paragraphs 13 Osov 14 (If Ileo an no additlord provislore wuas'NONE): 13. Owner hereby Audwiroe Agmrt to notlfj all maltlpls Iletkre eaNcas are to ahaVM in balky ofkaGon data. me" rental or salsa Prices, or sign other dwVm kr tame or avaTabalby Apmd to ley owner and commuriedad on* or In w ftm to Amit k•. Lmlord ehd have the right to cancel U*M eyreemmnt a wtkne after tMrd PrA) month of tha kdcal tern by galley Broker #*V (30) dry written rnatka "AGENT' Lee i Associates* — Newport Beach, Inc. Brian Ga / Andrew Robben BY NOTICE: T11408 1011, an often rrrodllisd Io mesh CIWQh mp*o ems *flaw and krAeby reeds. Alwaye wrlle or cal -, rtake sure you rs uWmhg the meal o urrsM tomb: AIR Commnerdal Real Edible Assodatian, 700 So. Fbwar SL. Se t100, Lot Angeles, CA 90017. TaW ae No. (213) 887-8777. Fox No.: (213) 887-8818. Rok6eNMkrsfi0-7W El Qm*w ReAPOmw A mwy PAGE 3 OF 3 INITIALS INITIALS dXW - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OA4-6il7E PROPERTY INFORMATION SHEET (NonAmildw UW) AIR Commercial Real Estate Association PREFACE: Purpow Tihis Staimmu t is NOT a wwwriy m b uhe cider cwx"m d to PropwtVPr4ffdmL The PUMM Is, kwW W, W provide fro brokers and ft poW" brywAl wO h bWwkant k.kx .wfon abait the PopeAyfPrrrise which Y are* in the acGW WvMWpe of ft Owner whd which On Owrw Y re p*od by low to dlsdo L Achah WwrMdpe: For purposes of of Stsfsrrmd Rha phren "sch Wp~ mavw the awwwon of a fad. or the awwwre d uAlcimt mftmwAcn end draarrlwsas w aatc wase one lobnleve Ort 9 owtaln Amban or couch, probably etdsts. TO WHOM R MAY CONCERN: Sid Mirrafati, M.D. (..0W"W"). owns the PmpwVPraoiee ccan" Mom by da street ad rm of 730 El Camino Real locsied M to Cly or Tustin Cahrdy of, Orange Slab of California and penwaly desatmd m (dasab Wely ur natio of ft Panrse or PmpoV an approximate 1, 747 square, foot office building on approximately 0.23 acres (hvdn 8 tr " Proper40, and , I trt - 1. Mmkw d PhyaW Deftcm Ovahw ha no M*W Wmwbdpe of any maOV W physical - I in She Pmpvty or any inphoreaw to and strudhses thereon, khdudWp, bhp rat tknfed to the rod. =cur (H there we no awspfaa wrb'NONE": 2. EgWpoeft A. Owren has rho actual WeANdpe Set the h"". W11a kp, at oandi wft, *Oft,& Iaaekhp doaa. eNmksl and Mphlrp syrens, ft safMy systema: esaafty 9PW- and cedhsrical 0cp# rmd rdrkhp an to Pfop" e of to dei heed. If wy, ere not in pond op m 9* g ohdw and c m Mbrh except Of Ohre are no wroeptbre vwfe'NONE Y B. Owner two no sdhW 1, dpa of any Imam Wrndrp afraefnerds. Mrs or ofw eprerrwde -18c*V any agriprwd which Is being rwkWed wllh fe Prop&V, mepl (if two re no wroepfars vwr.'NONET. 3. Sol CwWkkmm Oww hm w achal krgwledpe Set fe Pnpwly hha wW slAM& soft. sem. foadlna pandkhp or ry odw unplug, drakhepe or Id prabhnha, axwfd (if tete are no encepo" vwfs'NONEn: 4. Utlfuee. Owner rapeswde and rwrrde fit tr Properly is caned by ur foloain(t uMMbe (Cho* ft appropNle bomw E3 Ply seww ayatrn and ur acid of krhal M fweaf Ira ben NMy'p@W O prh aN septla "own 0 dewic ly, ❑ nebral pee, ❑ dorreMic welw. O teNpfhorr, rid D ~. 5. Neural Harvard Zone. Omw ha no spud bwwiedpe art the Properly Y bcolsd wof a delkwbd food, eartqueke. or oars rhebral h u" mar, ora;apt (5 fere are no anoepfae wft 'NONVh lL Corn0ftw a WMh Lewe. Ower the nc eftW Whowledpe d ry esped or oandi5, d the Properly whW hh vicion applcabN iewa nice, mp Wdors, codec, or comwds, axu Wwr or rsekic5oro. or of mpvwnmes or aftwafom meds to or Propwly vdfert a pemhl when ors was requhd, or of wy uAdIMNd ardor• or dkeciw of any appy fovansrard apwey or of any cmmky kimmm c=WwW tat any work of invaefpefon, wrdlnfon, repair, ffmW tarrnw or a provo wd Is to be pe formed an tr Prope fy, @xcW (Hume ws no W=pftu wffe'NONE"): 7. Hewdow Setrtrhws and MdLL A. Ower ha no adhW Whovdadpn of the Properly ever hwft beth used a a wale dung, of the pal or preerd &%Mow d any above ar below ground eforale tans an ft PR", or Of the nand wddW= on Me PMpwty at abealce, Vanefamre aonfakhkhp PCf3h or wry huzrdma. tmdc w infbctlws sutstwme Ydree rAtm andW gwrdly of IN - or% niarxrfildrr w ere c, ,e Ws f ad*d tD Fed". sure or bar rophJsft% khvaeftGfl m, femedkOm r rwwvr a Pcbwdl* ir>*Bt w b Phblc I W w wrfre, @rapt (H true are rho exoepffrr wrrm PAGE 1 OF 2 == • AIRCOYYERCIAL REAL ESTATE ASSOCNTION FORM P7.4ip4fE e. Owner represent and warrants that M is not mwmdly, and now has baso engaged In the business of hauling waft and newt stoned hezandohs substances On tie Property. except (M Mere we no ehcaptions while 'NONE"): C. Owner has no apuat knowledge of the menace on the PmWIy of hazardous levet of any mold or arngi defnad as taadcunder applicable stale or Fed" law, except (N there are no maeptiore WIND —NONE . S. Fire, Dernapa Owner has no acbai knowledge d anY struchws on the Property tevkg suffered mateial Aro dem no Wilms ape e>acept (M them an S. Actions, Sults or Pmmndlaya Ower has no adM leewledps that any actions, sups or prooeedkgs ane Pardtg or Aweatened before any court, arbitration hlbrnal. gcv—ff raab departmwd, carmbshah, board, borers, agency or Vainanentsilly that Wald ~ the Properly or the night or ability of an owner Or tenant to convey, ooe upy or udk@ Ne PmParty, mmol (if there We no expptipp wit 'NONE'): IQ Govsmaasntsl ProaedhVe. Owner has no aeksl krawbdge of any existing or mrNarnpliled cmxkwnweltn, arwMarnentd, zoning, redevNopnera agency pion or Www len: use regulation proeaedrhps which mold dM*nwd* entad the wke. uw and cimallon of the Peoperty, except M than are no exaepdons writs "NONE): 11. Unrecorded Title Heom Owner has no adud gewledge deny enameorm, owerents carrdNpere, raatriplore, eeeaerht icerees, Hans. dMW a char ..W trs which ~ Ne Wo d the Proparq that are not r000rdad h the 1 111"wAm@ re c ■the Canty ime,ecora wlsre the PmParb is bcsied, excaPt (If there are no wm*Ptiae wits 'NONE"): 12. Lesesa Ower hes no ackW thaMedgs of dry kitsea, suoreases or ober tenancy agreemanle alledbg tis Property, eswpt (N two we no exceptions wits 'NONE'): 13.Opdors. Ower has no ■dual Imowlerlge of any aPHms 10 puadsss, right Of pkat refresh Vft alfaolng tis ProParty, accept (M tiers ane no d Act oiler or other slnAr aprernarhts exceplbns unit 'NONE: 14. Other. (it will be wasumed that two we no additional ileum which warrant dhdoaas mica they are ON forth harsh): The stamarht h alsh VAN be raNsd upon by tsokm% bW W% lessees, lenders sad atlrsta Tletsfoaar gwhher enation she Owrhere Prop" Manager has esvlevrsd and nhnodtlsd mle prlMsd stalenenM as nec"my ts ace rawy and oonpiewy sties no ahs, Irnr- macaw the howsv�w, std not rWtnr��ya • To tins arAsnt such modUlastloas are nos meds, Uft abdon arMd k may bar rs1upon as printsd, flAs sts mor*, levee �� far InndspsnalarM Urmd geaoa d hire nS. aPPropsuts PoMasd thenen isgrasd Willi taps to 1M � nnhsssrw dmlg_ vrMeh may occur Ingo stleraaht earMaked Ihsrsbh Thom cats atdsahsrM ts Properly ts bmskn@4 or tie Issas Is sameu" Date (FN in cats of sxnhartian) Sid Mi a ti, M. D. BY• Si r TMs: Buyadlesses herby adawwledges receipt of a copy of Air AoParty kiamslbrr Shest an Nems Printed: TMW MOTE: These fours an oRan modllled to meat charq ft requirarhents of law and Industry hssda, Always writs or c N to maks awe you are UbUnN tie most current laic AIR COURMCIAL REAL ESTATE ASSOCIATION, 700 South Hower 01 , Suit Ift Los Angslss, CA SSSt7, TslsiMoe Na: (213) tit? -Stir Fax No.: (213) N7-M7E. ROWWMknfati-730 El Gmkio Real -Frog info PAGE 2 OF 2 CM - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM 1114141m L& Lee 8 Associates° COMMERCIAL REAL ESTi1TE SERVICES SCHEDULE OF COMMISSIONS A. SALES, EXCHANGES, AND OTHER TRANSFERS I. Uninproved Properly (aubGW*84 lacking anbnilfes necessary for urban development, such as roads. WE= or zoning): 10% of the Dross asks price. 2. Improved Property: 6% of the gross sobs price. 3. Exchange: Each party to Me exchange shelf pay a full sales commission based on the type of property in mccordanos with Nle Scedulm. 4. Joint Venture: If a join venture is effected in Neu of a sale, a full sales conaninion shelf be paid on the basis of the value of the properly n dalertnired ler purposes of Moa joint venture agreament and the peroanbgs interest thereof which is being conveyed to the Joint vsnkxe or the pint venturers. 5. Bwiness OpponWnily: 10% d the groas sales price. B.LEASES GROSS LEASE WITH PROCURING BROKER 6% of the rend ler years 1-5 (4% 10 poeurkp broker) 3% of the rent ler Yom 5-10 (2% b proarig broker) GROSS LEASE WHOUrPROCURING BROKER 4.5% of the rent for years 1-6 2.25% of the rent for years 5.10 1. Tenn of More Than 30 Years: Including Ground Lemmas, t the Initial bass term is in excess of 30 years, 0»n the coonmisslon shall be calculated only upon the rental M be paid during the ff930 yam of the Man of to Maes. 2. Sublease or Asaignrner t 6% of the rant payable undergo assiDnnon or sublesaft d a gross lens during the balance d the Mum, or 7% in the as of a not ban. M a aah bones of lump arm Is paid by the successor bnaK a sales co nmlsalm shit also be paid In acconderwa with this SdeduhL 3. MO WMD41101M Toranoy: Ths commission shelf be 50% of the fiat mord ft rand but in no event less than $400. In the event a month -to month Want subsequently vacutss a bass, aidw direct with Owner or through BrclaK WE* 24 moMtu from the dant of occupancy of the month-lo-rnorrlh bnarrt, then Broker shall receive a leasing commisskm lel accordance with the provisions of this Schedule. 4. Extension of Lena or AddkkmW Spas Taken: Should the term of the Iona be a derWed or the Mnant occupy addMWW apace, thee a lea" cormnWbn shelf be paid when said term Is a dended or said additional spew Is occupied. The lessig cornmNsion stat be computed in scorrdans with the provision of this Schedule and by using tie rete& applicable as ff tie InMhl farm of fie Maw had Included amid axbnebn period or to preview Initially demised had included said additond -paw. 5. Purdah dPro)rmrty by Twtent Should tenant, his -10088&010, or as Was P Ad— the -*d property during Me term of the Ismee or exb any nmion thered or within 180 day- afar expiation de10af. then a sake cwmbWw -het bo pdd when the pumhm ine ffi te, I Said Salem aormThsion shat be computed to accordance with the provb(om of We Sdadula, less do anoint of paid lewa mnmNwione Mated t0 that portion of the Ines tens IrdttD b"o d the affadlva dente of amid purchase. C. PAYMENT OF EARNED COMMISSIONS 1. Commissions shell be Paid Muough secrow upon the dosing of sales and exdange trarnmetlonr ab-wrt on a&aomr, oarrais-ions -hell be paid upon raoordai o d e dead arupon dNwy d s deed or ager 08riveywhea 8 moor I ", Is dmI mea Moan are month thweeft. In the award of a contract or agnmernent d smlss, Jaid venture -p eenmd, business oppommly or cher transact - not involvi g 0e delvary d a dud, co an doles alai be paid Lipari eramallon sed delivery of the irtrunwrt of corrveyan ce or awblsbnenl d Ma wot6wnwlt d aarorship. 2. Leasing and subWeNg conmbelo ne whet be paid upon execution and drWvery d a base dy owner and ' . 3. Br Mai ls hereby auMrorked M deduct its cerwhislon pursuant to this Schedule from fiords held it Ms trust account Owner Shall promptly pay any diflarwhw len Cash len accords= her wit h. [A.'.i>'«�errr 1. N Owner hts M make any Pmymod st Ma Ems uhequiad Main Ee deMnquwM sum(m) shell bear Intned at Me moxiram 10b F 1118 d by low. 2 This Sdedhla and tib Agrwrhahht b which Kim shaded aro binding on Brolar onlywhen axaarled by britt parties wMlaut hrhoditatoro of tie po ". ler., ; provided 00 any such unaulhortand avxMkx*m will Bnokmr le auMpria&d b modty such ten. by executing s Apawront or by in wwftrcnft by d uwdVW@oker at No�n �ov Eat any o8loar d 3. This Schedule shall be used only for ba..dlora in whir h Lae 8 AssodheeaNswpw Basch, Inc, ls i vohad and a hd not be dlstrfdubd M any ~ P". The undersigned hereby acknowledges receipt of a copy d this schedule and agrees to pay a oommimabn(s) w provided harift Dated: OWNERILE Adwew Telephone (714) 8444111711 200& BROKER: Lae hi AswdmbW - Newport B&ae4 ice. !Andrew Robben Ad' 7001 MacArthur Blvd_ Sufis 100 Newport Beach, CA 22M Telephone (00172&1000 ACII•IRobbrslAgirrwmtr►ScAvdaie q/Conrwisrioru-,wr�aLLQoe Exhibit L Letter from Tustin Chamber of Commerce dated December 7, 2007 0 Tustin CHAMBER OF COMMERCE December 7, 2007 Ms. Elizabeth Binsack Director of Community Development City of Tustin 300 Centennial Way Tustin, CA 92780 RE: Conditional Use Permit 07-020 Dear Elizabeth: One of the important roles of the Tustin Chamber's Business & Economic Development Council (BEDC) is to support growth and development in Old Town Tustin. While we assist and encourage the development of new business opportunities and support existing business expansion in general, we must also make recommendations regarding projects that may impact the community's vision of Old Town Tustin. Policies 1.2 and 10.6 of the City of Tustin's General Plan provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin. It encourages the integration of retail or service commercial use on the street level of office projects. The Old Town area has already been recognized by both the City of Tustin and the Tustin Chamber of Commerce as underserved by retail commercial uses. In fact, CA 06-004 was adopted to address this deficiency and encourage much needed retail uses in Old Town Tustin. Specifically, businesses located on Main Street and El Camino Real at street level are to encourage pedestrian activity and complement the surrounding retail businesses and service-oriented businesses that also encourage foot traffic in the area. The Planning Commission will be reviewing Conditional Use Permit 07-020. The current proposal is for a dental office to fully occupy a single -story building located in an area identified for retail commercial uses. The property location at 740 El Camino Real, by El Camino Way, one of the main entries to Old Town Tustin. The Tustin Chamber of Commerce is located in Old Town on the comer of El Camino Real and Main Street. For several years, BEDC has been active in revitalizing the area by promoting retail uses to property owners and by initiating and implementing programs that will encourage pedestrian traffic. Letter to Elizabeth Binsack/City of Tustin December 7, 2007 Page 2 of 2 Therefore, in regards to Conditional Use Permit 07-020, we would like to make the following recommendations to the Planning Commission: (1) Consider this comer location as a prune site for retail uses; retail storefronts will attract much needed pedestrian traffic in Old Town Tustin. (2) Any proposal to this site shall accommodate retail use on the ground floor level that will be compatible and complement nearby retail establishments, all for the betterment of Old Town Tustin. We thank you in advance for making these recommendations to the Planning Commission on our behalf. We look forward to hearing the results of the Planning Commission meeting on December 11, 2007. Sincerely, A& Clark LeDone Chairman of the Board Tustin Chamber of Commerce cc: Tustin City Council Tustin Planning Commission Marisa L. Charette, President/CEO, Tustin Chamber of Commerce Ken Henderson, Chairman, BEDC Exhibit M Revised Resolution No. 4079 RESOLUTION NO. 4079 A RESOLUTION OF THE PLANNING COMMISSION DENYING CONDITIONAL USE PERMIT 07-020 TO AUTHORIZE A DENTAL OFFICE LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2) ZONE AND FRONTING ONTO EL CAMINO REAL I. The Planning Commission of the City of Tustin does hereby resolve as follows: A. That a proper application, Conditional Use Permit 07-020, was filed by Dr. Ashok Mehta, requesting authorization to establish- a dental office in an existing stand-alone building at 740 EI Camino Real. That the property fronts onto EI Camino Real, is located in the Central Commercial (C-2) zoning district, and is designated as Old Town Commercial by the General Plan land use map; B. That a public meeting was duly called, noticed, and held for said application on December 11, 2007, by the Planning Commission; C. That at the December 11, 2007, public hearing, the applicant's legal counsel submitted correspondence and a Public Records Act request to the Planning Commission. D. That the Planning Commission continued the project to January 8, 2008, meeting to allow the Planning Commission and City staff time to review and respond to correspondence and the Public Records Act request. E. That the project is categorically exempt pursuant to Section 15270 (Projects Which are Disapproved) of the California Code of Regulations (Guidelines for the California Environmental Quality Act); F. That pursuant to Tustin City Code Section 9233(y), professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to certain use criteria; G. That the Planning Commission has considered the matter and determined that the proposed project does not meet finding requirements needed to support the conditional use permit, in that: 1. Pursuant to Tustin City Code Section 9233(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use Resolution No. 4079 Page 2 on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building was occupied as an office since the building was relocated to and first occupied in Tustin. The last business license issued for this property prior to the establishment of a tutoring facility was for EI Camino Chiropractic which its business license expired in 1995. Thus, the office use has lapsed for more than twelve (12) consecutive months and pursuant to Tustin City Code Section 9273 (Non -conforming Structures and Uses) any subsequent use shall comply with current City Code. The intent of a non -conforming code in the City's Zoning Code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulations until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. To further the non -conformity of a use and/or building does not meet the intent or purpose of a non -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non- conforming use contrary to the standards set forth in the Zoning Code and goals and objectives of the General Plan. Resolution No. 4079 Page 3 On October 9, 2006, the Zoning Administrator approved CUP 06- 014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building and further invalidating the continuance of the property as an office use. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of EI Camino Real and EI Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. c. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on EI Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to EI Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. Resolution No. 4079 Page 4 e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district is to encourage pedestrian activity in the area. Although the applicant has indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity, is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at a tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. 3. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects (Policies 1.2 and 10.6). The project proposal is for a dental office to fully occupy a single -story building located in an area identified for retail commercial. uses. The Old Town neighborhood has been recognized by the City Council and Chamber of Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. CA 06-004 was adopted to address this deficiency and encourage much-needed retail uses in the heartof Old Town Tustin. The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-1), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or El Camino Real and located outside of the Old Town Commercial General Pian land use designation. Resolution No. 4079 Page 5 II. The Planning Commission hereby denies Conditional Use Permit 07-020 to authorize a dental office in an existing building at 740 EI Camino Real in the C-2 zoning district and Old Town Commercial General Plan designation. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission, held on the 8th day of January, 2008. JOHN NIELSEN Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4079 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 8th day of January, 2008. ELIZABETH A. BINSACK Planning Commission Secretary Exhibit N Letter from Woodruff, Spradlin & Smart dated December 21, 2007 LAW OFFICES OF WOODRUFF, SPRADLIN & SMART A PROFESSIONAL CORPORATION 555 ANTON BOULEVARD, SUITE 1200 ■ COSTA MESA, CA 92626-7670 ■ (714) 558-7000 ■ FAX (714) 835-7787 DIRECT DIAL: (714) 415-1083 DIRECT FAX: (714) 415-1183 E-MAIL: DKENDIGCWSS-LAW.COM December 21, 2007 VIA FACSIMILE AND FIRST CLASS MAIL Elizabeth L. Martyn, Esq. John Paul Glowacki, Esq. McCormick, Kidman & Behrens, LLP 650 Town Center Drive, Suite 100 Costa Mesa, California 92626 Re: Public Records Act Request Dear Ms. Martyn and Mr. Glowacki This letter is provided in response to your letter and voicemail of yesterday afternoon. When I received Ms. Martyn's phone message Wednesday, I was surprised to hear her report that you attempted to review the Community Development Department records twice Tuesday but that the records weren't available when he was there. I have looked into the matter further and confirmed that you were told by the Clerk's Office on Tuesday morning that compilation of the Community Development Department records would nct be completed until Tuesday afternoon. I had not been informed of that until I received your letter. Clearly there was miscommunication at the City and with me about what you had been told and whether you would be returning to review records in the afternoon. The City Clerk's office apparently was unaware that the Community Development Department had completed compiling the records by the time you called back in the afternoon of the 18th. We apologize for the resulting confusion. Also, allow me also to acknowledge that the footnote in my letter incorrectly implied you were present "with" the Community Development Director during the computer search. After consulting with her, she confirmed that you are correct that a computer search occurred while you were in the lobby. I misunderstood where you were while that search was performed. That having been said, there are a number of issues you raised which must be responded to. The City's "repeated protestations" that your request requires clarification is simply the normal process of communicating with a member of the public who requests multiple categories of City records but who is unfamiliar with Tustin's filing and TERRY C. ANDRUS ■ CINDY R. BECKER ■ EDWARD L. BERTRAND ■ M. LOIS BOBAK ■ CAROLINE A BYRNE ■ PATRICK M. DESMOND ■ JAMES M. DONICH CHRISTINA M. DOYLE ■ JAMES H. EGGART ■ CRAIG G. FARRINGTON ■ JOSEPH W. FORBATH ■ RICIA R. HAGER ■ BRADLEY R. HOGIN ■ DOUGLAS C. HOLLAND DAVID E. KENDIG ■ EDWARD Z. KOTKIN ■ ROBERTA A KRAUS ■ MAGDALENA LONA-WIANT ■ MARK M. MONACHINO ■ LAURA A MORGAN ■ THOMAS F. NIXON BARBARA RAILEANU ■ JASON S. RETTERER ■ KYLE E. ROWEN ■ OMAR SANDOVAL ■ JOHN R. SHAW ■ MATTHEW R. SILVER ■ GREGORY E. SMONIAN KENNARD R. SMART, JR. ■ DANIEL K. SPRADLIN • ALYSON C. SUH ■ THOMAS L. WOODRUFF December 21, 2007 Page 2 indexing systems. The City has been doing its good faith best to comply with repeated counter demands from you and your client for immediate access to City records, providing files and making copies, and the City will continue to do its best to comply with your request for broad categories of documents pertaining to dozens of properties in Tustin that, when gathered from a variety of file storage locations, fill bankers boxes. Indeed, although the Public Records Act allows the City 10 days to respond to written requests for records, the City made a collective effort to expedite the written response to that request, and the response was faxed to you less than a week after your client submitted his first request. In any case, the Community Development files and records have been compiled in response to your request and ARE available for your review in the Community Development Department Conference room, so we. encourage you to review them as soon as possible. And the City has printed the relevant list from Permit Plus (one of the computer databases listing of permit information) as well so that you may review those yourself as well. As to the issue of re -filing the documents, the files include active planning files that City staff regularly consults for a variety of reasons, and to which new documents regularly need to be added, so the City requests that you review the files as soon as you can. As I'm sure you can understand, it interferes with the orderly operation of the Department when files are not located where they are ordinarily stored. My last letter didn't say that you would be required to make another formal Public Records Act request to review the records once they are re -filed. In fact, the City would make the documents available again even after they are re -filed. The letter was simply emphasizing the important practical concern that, once the files are re -filed, it would require time (and thus some advance notice) for staff to re -compile them again for your review. And just for sake of clarity, the files you will review will include the active files. I was not altering any "agreement" in this respect. Your letter indicates that the City has agreed 'only to take copies of portions of the records that we specifically request after review." I believe you mean "make copies," not "take copies", and if so you are correct that like any member of the public, you are allowed to bring in a copy service to make copies of records onsite or, at your discretion, to pay the City ks standard copy charges for copies made for you. Finally, I must respectfully reject the assertion on the last page of your letter that the City "has taken ample time to purge files and delete electronic correspondences that were subject to [y]our client's request." It's simply untrue. The City is doing its good faith best to expedite and respond to your client's requests for multiple categories of documents and files, requests that involve multiple properties and planning files. That it December 21, 2007 Page 3 requires time and limited staff resources to respond to the request does not imply any impropriety. The City is systematically responding to your client's multiple requests, not denying access to these public records as your letter says. The records are available for your review, well in advance of the Planning Commission meeting next month. I understand that City staff members are available to assist in your review of the computerized system information this morning while you are at the City reviewing the documents. Please let me know if you have any remaining questions after you have completed your review of the files and records. Sincerely, WOODRUFF, SPRADLIN & SMART DEK:dek Cc: Elizabeth Binsack, Director, Community Development Department Chris Shingleton, Director, Redevelopment Agency Maria Huizar, City Clerk Marcia Brown, Office of the City Clerk Exhibit B TCC Section 9297—Definitions TUSTIN CITY CODE ZONING 9295g 9296. After the conclusion of such hearing the City Council may within one (1) year adopt the proposed amendment or any part thereof set forth in the petition or resolution of intention in such form as the Council deems desirable. (Ord. No. 157, Sec. 9.7) 9296 NOTICES OF HEARING a Definition Whenever this Chapter prescribes that a public hearing shall be held on the application for variance or amendments to this Chapter, notice thereof shall be given as provided in this Section. (Ord. No. 157, Sec. 10.1) b Notice of Hearing Notices of the public hearings on applications for uss variance, appeals and amendments to this Chapter changing the boundaries of any district shall be given by the body conducting such hearings in the manner prescribed by Sections 65500 and 65854 of the Government Code of the State of California. (Ord. No. 303, Sec. 3) c Notice of Hearing: Special Hearings Notices off public hearings on matters other than as specified in Subsection "b" hereof shall be given by the body conducting such hearing by publication in a newspaper of general circulation in the City of Tustin, at least ten (10) days before the hearing. (Ord. No. 157, Sec. 10.3) d Notice of Hearing: Failure to Post Notices Failure to mail or post notices as specified in Subsection "b" hereof shall not - invalidate any proceedings. (Ord. No..157, Sec. 10.4) e Notice of Hearing: Filing,of Affidavit Upon completion of the. posting or mailing of the notices provided for in Sub-• section•"b" and publication of notices as provided in Subsections "b" and "c" hereof. the City,. Clerk, if the hearing is held by the Planning Commission, or if the hearing is held by the City Council. shall cause an affidavit of such mailing or publication to be filed in the permanent records of the particular proceedings to which such notices pertain. (Ord. No. 157, Sec. 10.5) 9297 DEFINITIONS - "Administrative Office" means an office for the rendering of service or general administration, but excluding retail sales. (Ord. No. 1570', Sec. 11.1) "Adult Bookstore" shall mean an establishment having as a substantial or signi- ficant portion of its stock in trade, material which is distinguished or charac- terized by its emphasis on matter depicting, describing, or related to specified sexual activity or specified anatomical areas, or an establishment with a seg- ment or section thereof devoted to the sale or display of such material. (Ord. No. 819, Sec. 1, 2-19-80) REV: 1-82 LU -2-80 i TUSTIN CITY CODE ZONING 9297 "Adult Business" shall mean any business which is conducted exclusively for the patronage of adults, and as to which minors are specifically excluded from patronage thereat, either by law or by the operators of such business. "Adult Business" shall also mean and include adult bookstores, adult theaters, massage parlors, topless dancing, stripping, figure modeling studios, adult motels or hotels, but shall not include those uses or activities the regulation of which are preempted by state law. (Ord. No. 819, Sec. 1, 2-19-80) "Adult Hotel/Motel" shall mean a hotel or motel which provides, through closed circuit television, or other media, material which is distinguished or characterized by the emphasis on matter depicting or describing or related to specified sexual activities or specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Adult Parie means any mobile home or travel trailer park the spaces of which are rented or leased only to persons having no children under the age of fifteen (16). (Ord. No. 329, Sec. 2) "Adult Theater" shall mean a theater which presents live entertainment or motion pictures or videotaped presentations or slide photographs, which are distinguished or characterized by their emphasis on matter depicting, describing, or related to specified sexual activity or specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Alcoholic Beverage Sales Establishment" means any establishment. where an alcoholic beverage is sold, including, but not limited to, liquor stores, bars, lounges, restaurants, markets, mini -marts, gas stations, drive-in dairies, bakeries and florists. (Ord. No. 920, Sec. 6, 11-19-84) "Alley" means a public or private way less than thirty (30) feet in width which affords a secondary means of access to abutting property. (Ord. No. 157, Sec. 11.2) "Alteration means any exterior change or modification requiring a building permit of any Designated Cultural Resource or of any property located within a Cultural Resource District. (Ord. No. 1001, Sec. 3, 6-20-88) "Apartment" means any building or portion thereof which is designed and built for occupancy of three (3) or more families. (Ord. No. 167. Sec. 11.3) "Beverage" means beer and other malt beverages, carbonated mineral and soda waters, and similar carbonated soft drinks in liquid form which are intended for human} consumption. (Ord. No. 993, Sec. 1, 9-8-87) "Beverage container" means the individual, separate bottle, can, jar, carton, or other receptacle, however denominated, in which a beverage is sold, and which is constructed of metal, glass, or plastic, or other material, or any combination of these materials. "Beverage container" does not include cups or other similar open or loosely sealed receptacles. (Ord. No. 993, Sec. 1, 9-9-87) REV. 9-00 LU -Mi TUSTIN CITY CODE ZONING 9297 "Block" means all property fronting upon one side of a street between intersecting and intercepting streets, or between a street and a railroad right-of-way, waterway, dead end street or city boundary. An intercepting street shall determine only the boundary of the block on the side of a street which it intercepts. (Ord. No. 157, Sec. 11.5) "Boarding House" means a dwelling other than a hotel or motel, where lodging and/or meals for three (3) or more persons is provided for compensation. (Ord. No. 157, Sec. 11.6; Ord. No. 1225, Sec. IV, 1-17-00) "Building" means any structure having a roof supported by columns or by walls and designed for the shelter or housing of any person, animal or chattel. (Ord. No. 157, Sec. 11.7) "Building, Accessory" means a subordinate building including shelters or pools, the use of which is incidentalto that of the main building on the same lot and/or building site. (Ord. No. 157, Sec. 11.8) "Building, Main" means a building in which is conducted the principal use of the lot and/or building site on which it is situated. (Ord. No. 156,. Sec. 11.9) 'Building Setback Line" means a line established to denote the minimum distance a building may be constructed from a property line or right-of-way line. (Ord. No. 353, Sec. 4) "Building Site" means a Iot or parcel of land, in single or joint ownership, and occupied or to be occupied by a main building and accessory buildings, or by a dwelling group and its accessory building, together with such open spaces as are required by the terms of this Chapter. and having its principal frontage on a street, road, highway or waterway. (Ord. No. ,157. Sec.. 11.10) (, "Business, Retail" means any establishment,where the retail sale of any article, substance, or commodity, but not including the sale of lumber or other building materials, or the sale of used or'secondhand goods or materials of any kind. (Ord. No. 157, Sec. 11.11) "Business, Wholesale" means the wholesale handling of any article, substance or commod= ity, but not including the handling of lumber or other building materials or the open storage or sale of any material or commodity, and not including the processing or manufacture of any product or substance. (Ord. No. 157, Sec. 11-12)- "Carport" 1.12)"Carport" means a permanent, roofed structure, used for automobile shelter and automobile storage, in addition to the lockable storage hereinafter specified. Lockable, usable and accessible storage space of at least ninety (90) cubic feet shall be provided in all carports. (Ord. No. 304, Sec. 2) "Certificate of Appropriateness." means an approved certificate issued for the construction, demolition, alteration, removal, or relocation of any publicly or privately owned Designated Cultural Resource, or any structure, natural feature, or site within a Cultural Resource District. (Ord. No. 1001, Sec. 3, 6-20-88) 7.00 LU -2-82 TUSTIN CITY CODE ZONING 9297 "Combining District" means any district in which the general district regulations are combined with those special districts defined in Section 9213 for the purpose of adding additional special regulations. (Ord. No. 157, Sec. 11.13) "Committee" means the Cultural Resource Advisory Committee. (Ord. No. 1001, Sec. 3, 6-20-88) "Consumer" means every person who, for his or her use or consumption, purchases a beverage in a beverage container from a dealer. "Consumer" includes, but is not limited to, a lodging, eating, or drinking establishment, and soft drink vending machines. (Ord. No. 993, Sec. 1, 9-8-87) "Convenience Store" means any establishment under fifteen thousand (15,000) square feet in size where food, beverage, magazine and auto related items, or any combination thereof, are sold for o$ -site use and/or consumption. (Ord. No. 981, Sec. 11, 54-87) "Cultural Resource District" means any area containing improvements which have a special character, historical interest or aesthetic value or which represent one (1) or more architec- tural periods or styles typical to the history of the City, and which improvements constitute a distinct section of the City that has been designated a Cultural Resource District pursuant to Section 9252 of the Zoning Code. (Ord. No. 1001, See. 3, 6-20-88). "Day Care Homes --Children" means a family dwelling unit, non -institutional in character, properly licensed by the Orange County Welfare Department, which provides day care only, with or without compensation for. . (1) Not more than five (5) children including the family day care mother's own children, (� when the age range is infancy through six (6) (years]; and, (2) Not more than six (6) children when the age range is three (3) to sixteen (16), including the day care mother's own children. (Ord. No. 511) "Day Nursery" means a place, institutional in nature, where seven (7) or more children are left for daytime care. # "Demolition" means to tear down or demolish. (Ord. No. 1001, Sec. 3, 6-20-88)' "Designated Cultural Resource" means improvements, buildings, structure, signs, features, sites, places, areas or other objects of scientific, aesthetic, educational, cultural, architectural, or historical significance to the residents of the City that has been designated a Cultural Resource by the City Council. (Ord. No. 1001, Sec. 3, 6-20-88) "Designated Site (Cultural Resource Site)" means a parcel or part thereof on which a cultural resource is situated, and which has been designated a cultural resource site by the City Council. (Ord. No. 1001, Sec. 3, 6-20-88) "District" means a portion of the City within which certain uses of land and buildings are permitted or prohibited and within which certain yards and other open spaces are required ( and certain height limits are established for buildings, all as set forth and specified in this Chapter. (Ord. No. 157, Sec. 11.14) REV: 7-2001, Rev. I.0-2-83 TUSTIN CITY CODE ZONING 9297 "Driveway" means a paved area of a lot located between the public right-of-way and the garage; carport, or required parking space designed and intended as an access way between a private or public road and the garage, carport, or required parking space. (Ord. No. 1240, Sec. 2,8-6-01) "Dwelling" means a building or portion thereof designed for residential occupancy. (Ord. No. 157, Sec. 11.15; Ord. No. 1225, Sec. IV, 1-17-00) "Dwelling, Single -Family" means a building designed for, or used to house not more than one (1) family, including all necessary employees of such family. (Ord. No. 157, Sec. 11. 16) "Dwelling, Two -Family or Duplex" means a building containing not more than two (2) kitchens, designed and/or used to house not more than two (2) families, living independently of each other, including all necessary employees of each such family. (Ord. No. 157, Seo. 11.17) "Dwelling, Multiple" means a building, or portion thereof, used and designed as a residence for three (3) or more families living independently of each other and -doing their own cooking in said building, including apartment houses, apartment hotels and flats, but not. including motels, boardinghouses, and hotels. (Ord. No. 157, Sec. 11.18) "Dwelling Groups" means a group of two (2) or more detached one -family, two-family, or multiple dwellings occupying a parcel of land in one (1) ownership and having any Yard or court in common, but not including automobile courts. (Ord. No. 175, Sec. 9) < "Exterior Architectural Feature" means the architectural elements embodying style, design, general arrangement and components of all of the outer surfaces of an improvement, including, but not limited to, the load, color and texture of the building materials and the type and style of all windows, doors, lights, signs and other fixtures appurtenant to such improvement. (Ord. No. 1001, Sec. 3, 6-20-88) "Family" means an individual or two (2) or more persons. living together as a single housekeeping -unit in a dwelling unit` (Ord. No.157, Sec. 11.20; Ord. No.1225, Sec. IV, 1-17_00) "Family Park" means any mobile home or travel trailer park, the spaces of which are rented or leased without restriction upon the ages of the children or occupants. (Ord. No. 329, Sec. 2) "Fence" means any structural device forming a physical barrier by means of hedge, wood, mesh, metal, chain, brick, stake, plastic or other similar materials. (Ord. No. 157, Sec. 11.21) "Figure Modeling Studio" shall mean any establishment in which. models pose while exposing specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Garage, Private" means a detached, accessory building, or a portion of a main building on the same lot as a dwelling, used primarily for the housing of vehicles of the occupant of the dwelling, having a roof, and enclosed on at least three (3) sides, with the fourth side being a lockable door, with not less than ten feet by twenty feet UV x 20') clear and unobstructed inside dimensions, and which shall be permanently maintained as a parking accommodation. (Ord. No. 733, Sec. 7) REV. 7-2001, Rev. LU -2-84 TUSTIN CITY CODE ZONING 9297 "Guesthouse" means detached living quarters of a permanent type of construction and without kitchens or cooking facilities and where no compensation in any form is received or paid. (Ord. No. 157, Sec. 11.23) "Height of Building" means the vertical distance from the average level of the highest and lowest point of that portion of the lot covered by the building to the topmost point of the roof. (Ord. No. 157, Sec. 11.25) "Home Occupation" means an occupation carried on wholly within a dwelling by an occupant of the dwelling, as a secondary use, in connection with which there is No person employed who is not a resident of the premises, no exterior display, no stock -in -trade or commodity sold upon the premises, no mechanical or electrical equipment used except such as is customary for housekeeping purposes, no outside operations or storage, no alteration of the residential appearance of the health, safety or welfare of the' general public, or which emits smoke, dust, fumes, odors, vibrations, glare or electrical disturbances onto any other premises, no activity which generates excessive pedestrian traffic or vehicular traffic or parking in excess of that otherwise normally found in the zone, no parking or use made of any vehicle over three-fourths ton carrying capacity, no parking in the front yard, driveway or immediately adjacent to the premises of any vehicle bearing any sign, identification or advertisement of the home occupation. (Ord. No. 330, Sec. 2B) ( "Hotel"—See Motel. (Ord. No. 157, 'Sec. 11.26) "Improvement" means any building, structure, parking facility, fence, gate, wall, landscap- ing requiring a building permit constituting a physical betterment of real property, or any part of such betterment. (Ord. No. 1001, Sec. 3, 6-20-88) "Junk Yard" means more than one hundred (100) square feet of the area of any lot used for { the stora8e of junk, including scrap metals, salvage or other scrap materials, or for the dismantling or "wrecking"of automobiles or other vehicles or machinery, whether for sale or storage. (Ord. No.157 Sec. 11.27) "Kennel" means any lot or premises on which more than three (3) doge, cats or similar small animals, more than three (3) months of age are kept, boarded, or trained, whether in special buildings or not. (Ord. No. 352, Sec, 1) "Large Family Day Care Home" means a family dwelling unit, non -institutional in character, properly licensed by the County of Orange, which provides day care only, for a maximum of twelve (12) children ages eighteen (18) years or younger, including the licensee's own children under the age of twelve (12). (Ord. No. 911, Sec. 7, 5-21-84) "Lot"—See Building Site. (Ord. No. 157, Seca 11.28) "Lot Front" means the narrowest dimension of a lot fronting on a street. (Ord. No. 157. Sec. 11.29) "Lot Line" means a line separating the frontage from a street, the side from a street or adjoining property; the rear from as a'1ey or street, or adjoining property. (Ord. No. 157; Sec. 1.1.31) REV. 7-2001, Rev. LII -2-65 TUSTIN CITY CODE ZONING 9297 "Lot, Through" means a lot having frontage on two (2) parallel or approximately parallel streets. (Ord. No. 157, Sec. 11.32) "Lot Side" means any lot boundary not a front or rear lot line. (Ord. No. 157, Sec. 11.30) "Material" relative to adult businesses shall mean and include, but not be limited to, accessories, books, magazines, photographs, prints, drawings, paintings, motion pictures, videotapes, and pamphlets, or any combination thereof. (Ord. No. 819, Sec. 1, 2-19-80) "Massage Parlor" shall mean any establishment required to be licensed pursuant to Section 3711 of the Tustin City Code. (Ord. No. 819, Sec. 1, 2-19-80)` "Mobile Home" means a veb?cle, other than a motor vehicle, designed for human habitation, for carrying persons and property on its own structure, for being drawn by a motor vehicle. (Ord, No. 329, Sec. 2) "Mobile Home Park" means any area or tract of land where one (1) or more mobile home lots. are rented or leased or held out for rent or lease to accommodate mobile homes used for human habitation. The rental paid for any such mobile home shall be deemed to include rental for the lot it occupies. (Ord. No. 329, Sec. 2) "Mobile Recycling Unit" means an automobile, truck, trailer or van, licensed by the Department of Motor Vehicles, which is used for the collection of recyclable materials. A Mobile Recycling Center also means the bins, boxes or containers transported by trucks, vans, or trailers, and used for the collection of recyclable materials. (Ord. No. 993, Sec. 1, 94;-87) "Motel" or "Hotel" means a single building or group of detached buildings, containing guest rooms or apartments, with automobile storage space provided on the site for such rooms or apartments provided in connection therewith, which group is designed and used primarily for the accommodation of transient automobile travelers. (Ord. No. 157, Sec. 11.4) "Nonconforming Use" means a use that does not conform to the regulations for the district in which it is situated. (Ord. No. 157, Sec. 11.33) "Nursery School" means a public or private agency, institutional in nature, engaged in educational activity with six (6) or more pre-school children. (Ord. No. 511) "Official Plan Line" means aline established to denote the ultimate right-of-way of a street. (Ord. No. 353, Sec. 5) "parking Space" means accessible and usable space on a building site, at least nine feet by twenty feet (9' x 20') for open parking and ten feet by twenty feet (10' x 20') clear and unobstructed inside dimensions for covered parking, located off the street and for the parking of automobiles. Not less than two (2) parking spaces per dwelling unit shall be provided and permanently maintained as parking accommodation, one of which must be covered. Parking not otherwise required to be in a garage or carport must be located on a paved area on the same lot or parcel of land or contiguous thereto. ;Ord. No. 733, Sec. d) REEV- 7-2001, Rev. LU -2-86 TUSTIN CITY CODE ZONING 9297 . "Paved Area" means an area of any required yard which is constructed with impervious materials which either results in an increase in the amount of storm water run-off into public storm drainage facilities or hinders natural percolation of storm water on the subject property. (Ord. No. 1240, Sec. 2, 8-6-01) "Person" includes any individual, city, county, or city and county-, partnerships, corporations, cooperatives, association, trust or any other legal entities, including the Federal Government. (Ord. No. 157, Sec. 11.35) "Portable Vending Device" means any stand, enclosure, booth, kiosk, instrument or mechanism intended to be temporarily used to display, distribute or sell food, beverage, Product to the public. (Ord. No. 1123, Sec. 2, 6-6-94) "Processor" means any person, including a scrap dealer, certified by the State Department of Conservation who purchases empty aluminum beverage containers, nonelumiaum metal beverage containers, glass beverage containers, plastic beverage containers, or any other beverage containers, including any one (1) or more of those beverage containers, which have a redemption value established pursuant to this division; from recycling center in this state for recycling or, if the container is not recyclable, not for recycling, and who cancels, or who certifies to the department in a form prescribed by the Department of Conservation of, the redemption value and redemption bonus of these empty beverage containers by empty beverage containers, in any manner which the department may prescribe. However, the department shall not take any action regulating scrap dealers or ._ . recycling'centers. who are' _ processors or recycling centers unless authorized by and pursuant to the goals of tbis division. (Ord No. 993, Sec. 1, 9-&87) "Professional Office" means an office for the conduct of any of the. following uses only: Accountant, architect, attorney, chiropractor, optometrist, chiropodist, designer, dratLeman,- engineer, surveyor, dentia ciao and t� eyo , t, physician, surgeon. (Ord. No. 157, Sec. 11.36) "Pushcart" means any wagon, cart, or similar wheeled container, which is not a "vehicle", as defined in the Vehicle Code of the State of California, from which food, beverage, or product is displayed, distributed or offered for sale to the public. (Ord. No. 1123, Sec. 2, 6-&94) "Pushcart or Portable Vending Device Operator" means any person, firm, partnership, association, corporation, stockholder, including, but not limited to, owners, operators, lessors and lessees, who operate a pushcart or portable vending device for the purpose of vending food, beverage, or product therefrom. (Ord. No. 1123, Sec. 2, 6-6-94) "Pushcart or Portable Vending Device Owner" means any person as defined herein owning or controlling one (1) or more pushcarts and who; (1) Conducts or permits or causes the operation of such pushcart(s) or portable vending device(s) for vending food, beverage or product; (2) Owns,operates, controls, manages, or leases such pushcarts) or portable vending t , device(s); or REV 7-2003 LU -2-87 TUSTIN CITY CODE ZONING 9297 1 (3) Contracts with persons to vend food, beverage or product from such pushcarts) or portable vending device(s). (Ord. No. 1123, Sec. 2, 6-6-94) "Recyclable Material" is reusable material, including but not limited to metals, glass, plastic and paper, which are intended for reuse, remanufacture, or reconstitution for the purpose of using the altered form. Recyclable material does not include refuse or hazardous materials. Recyclable material may include used motor oil collected and transported in accordance with Section 25250.11 and 25143.2(bx4) of the California Health and Safety Code and Orange County Fire and Health Departments. (Ord. No. 993, Sec. 1, 9-8-87) "Recycle," "Recycled," Macrjine or MwyclabW means the reuse or refilling of empty beverage containers or the process of sorting, cleansing, treating, and reconstituting empty poatfilied beverage containers for the purpose of using the altered form. "Recycle," "recycled," "reCyciw "recyclable," does not include merely sorting, shredding, gtrippingo empressing, storing, landfilling with, or disposing of an empty beverage container. (Ord. No. 993, Sec. 10 9-8-87) "Recycling Facility" is a center for the collection of recyclable materials. A Certified Recycling Facility, means a--'wydmg facility certified by the California Department of Conservation as meeting the requirements of the California Beverage Container Recycling and Litter Reduction A;ct of 1986. A recycling facility does not include storage containers or processing activity located -on the premises of a residential, commercial, or manufacturing use and used solely for the recycling of material generated by that residential property, business or manufacturer. Recycling facilities includes the following: A "Collection Facility" is a dater for the acceptance, by donation, redemption, or purchase, of recyclable materials from the public. Such a facility does not use power -driven Processing equipment wMpt as indicated in Section 4 Criteria and Standards. Collection Facilities may include the following: 1. Reverse Vending Machines which occupy an area of not more than fifty (50) square feet. 2. Bulk reverse vending machines occupying no more than five hundred (500) square feet. 3. Large collection facilities which occupy a permanent building or store $tint. (Ord. No. 993, Sec. 1, 9-8-87) "Redemption" and "Redeem" means the return to a recycling center of an empty beverage container for a refund of at least the redemption value and any applicable redemption bonus. "Rest Home" means any premises licensed under Section 2300 of the Welfare and Institutions Code of the State of California. (Ord. No. 157, Sec. 11.37) "Rooming House ---See Boarding House. (Ord. No. 157, Sec. 11.38) "Sanitarium" means a health station or retreat or other place where patients are housed, and where treatment is given, but excluding mental institutions or institutions for treatment of persons addicted to the use of drugs. (Ord. No. 157; Sec. 11.39) REV. 7-2003 LU -2-88 TUSTIN CITY CODE ZONING 9297 "Second Residential Unit" means a building or portion thereof designed for residential occupancy on a lot developed with a legal conforming single-family dwelling. (Ord. No. 1271, Sec. VIII, 6-2-03) "Service Station" means an occupancy which provides for the servicing of motor vehicles and operations incidental thereto, limited to the retail sale of petroleum products and automotive accessories; automobile washing by hand; waxing and polishing of automobiles; tire changing and repairing (excluding recapping); battery service, charging and replacement, not including repair and rebuilding, radiator cleaning and flushing, excluding steam cleaning and repair; installation of accessories; also including the fallowing operations if conducted. within a building; lubrication of motor vehicles; brake servicing limited to servicing and replacement of brake cylinders and brake shoes; wheel balancing; the testing, adjustment, and replacement REV 7-2003 LU -2-88.1 TUSTIN CITY CODE ZONING 9297 of carburetors, coils, condensers, distributor caps, fan belts, filters, generators, points, rotors, spark plugs, voltage regulators, water and fuel pumps, water hoses and wiring. (Ord. No. 157, Sec. 11.40) "Setback Lines" means a line established by this Chapter to govern the placement of buildings or structures with respect to lot lines, streets or alleys. (Ord. No. 157, Sec. 11.41) "Side and Front of Corner Tots" means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces. (Ord. No. 157, Sec. 11.42) "Signs" means any advertising display or structure. ,(Ord. No. 157, Sec. 11.43) "Small Animal Hospital or Clinic" means a place where small animals, such as dogs, cats; birds, and the like, are given medical or surgical treatment. (Ord. No. 352, See. 2) "Special Event" means any commercial, civic, patriotic, religious, cultural, community or. political event taking place on a specific date or dates or other such occurrence as determined by the Director of Community Development. (Ord. Na: 1123, See. 2, 6-6-94) "Specialty Store" means a market or retail store other than convenience stores. with fewer.. �r than 3,500 square feet in gross floor area with limited hours of operation, located in a retail center with more than three (3) retail tenants, that offers a combination of unique foods and beverages not commonly found in convenience or food markets or other retail stores for off-site use or consumption and where alcoholic beverage sales are incidental with no more than fifteen (15) square feet of the retail floor devoted to display of non -refrigerated alcoholic _ beverage sales for off-site consumption and no sales of refrigerated alcoholic beverages. (Ord. No. 1237, Sec. 2, 6-4-01) "Specified Anatomical Areas" shallmean: (1) Less than completely and opaquely covered: (a) Human genitals, pubic regions-, (b) Buttock; and (c) Female breast below a point immediately above the top of the areola; and (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. No. 819, Sec. 1, 2-19-80) "Specified Sexual Activities" shall mean: (1) Human genitals in a state of sexual stimulation or arousal; and/or (2) Acts of human masturbation, sexual stimulation or arousal; and/or (3) Fondling or other erotic touching of human genitals, pubic region, buttock, or female breastJOrd. No. 819, Sec. 1, 2-19-80) REV- 7-2001 LU -2-89 TUSTIN CITY CODE ZONING 9297 j "Street" means a public thoroughfare accepted by the City of Tustin, which affords principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, road and any other thoroughfare except an alley as defined herein. (Ord. No. 157, Sec. 11.44) "Street Line" means the boundary between a street right-of-way and property. (Ord. No. 157, Sec. 11.45) "Structure" means anything constructed or erected, the use of which requires location on or in the ground, or attachment to something having location on the ground, including swimming pools, excluding driveways, patios dr parking spaces. (Ord. No. 157, Sec. 11.46) "Structural Alterations" means any change in the supporting members of a structure, such as bearing walla, columns, beams or girders. (Ord. No. 157, Sec, 11.47) "Supermarket" means a full -line, self-service retail store with gross annual sales of two million dollars ($2,000,000.00) or more, and which sells a line of dry grocery, canned foods, or nonfood items and some perishable items. (Ord. No. 993, Sec. 1, 9-8-87) "Travel Trailer" means a vehicle, other than a motor vehicle, which is designed or used for human habitation, and for travel or recreational purposes, which does not at any time exceed eight (8) feet in width and forty (40) feet in length and which may be moved upon a public highway without a specialpermit or chauffeurs license, or both, without violating any provision of the Vehicle Code. -(Ord. No. 329, See. 2) "Travel, Trailer Park" means any area or tract of land or a separate designated section . within a mobile home park where one (1) or more lots are rented or leased or held out for rent, or lease to owners or users of travel trailers or camp cars used for travel or recreational _ purposes. (Ord. No. 329, Sec. 2) "Unit" means any building designed or used for the shelter or housing of one (1) or more persons, and shall include apartments. (Ord. No. 790,. Sec. 4, 2-20-79) "Use" means the purpose for which land or a building is designed, arranged, or intended or for which either land or building is or may be occupied or maintained. (Ord. No. 157, Sec. 11.49) "Use, Accessory" means a use incidental or subordinate to, and devoted exclusively to the main use of a lot or a building located on the same lot. (Ord. No. 157, Sec. 11.50) "Vend or vending" means offering food, beverage, or product of any kind for outdoor sale on any publicly or privately owned sidewalk, drive aisle, street, alley, or unenclosed place open to the public, including the movement or standing of a pushcart or portable vending device for the purpose of searching for, obtaining or soliciting retail sales of products. (Ord. No. 1123, Sec. 2, 6-6-94) "Vending Machines": A "Reverse Vending Machine" is an automated mechanical device which accepts at Least one (1) or more types of empty beverage containers including, but not limited to aluminum cans, glass and plastic bottles, and issues a cash refund or a redeemable credit slip with a value REV 7-2001 LU -2-90 TUSTIN CITY CODE ZONING 9298 not less than the container's redemption value as determined by the State. A Reverse Vending Machine may sort and process containers mechanically provided that I the entire process is enclosed within the machine. (In order to accept and temporarily store all three (3) container types in a proportion commensurate with their relative redemption rates, and to meet the requirements of certification as a recycling facility, multiple grouping of Reverse Vending Machines may be necessary.) A "Bulk Reverse Vending Mechme" is a Reverse Vending Machine that is larger than fifty (50) square feet; is designed to accept more than one (1) container at a time; and will pap by weight instead of by container (Ord. No. 993, Sea 1, 9.8-87) "Yard" means an open space other than a court on the same lot with a building, which open space is unoccupied and unobstructed from the ground upward, except as otherwise permitted in Section 9271. (Ord. No. 157, Sec. 11.81) "Yard, Front" means a yard extending across the full width of the lot, the depth of which is measured from the front line of the lot to the nearest line of the building; provided, however, that if any Official Plan Line has been established for the street upon which the lot faces, the front yard measurement shall be taken from such Official Plan Line to the nearest line of the building. (Ord. No. 353, Sec. 2)' "Yard, Rear" means a yard extending across the full width of the lot and measured between the rear line of the lot and the nearest line of the main building. (Ord. No. 157, Sec. 11.53) "Yard, Side" means a yard between the side line of the lot and the nearest line of the building and extending from the front yard to the rear yard. (Ord. No. 353, Sec. 3) 9298 INTERPRETATION AND ENFORCF.AWNT a Continuity of Law CExcept as. specifically provided herein, this chapter shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction,. moving, alteration or enlargement of any building or improvement; provided however, in any instances where this chapter imposes greater restrictions upon the erection, conslructian, establishment, moving, alteration or imp, o vement of buildings or the use of any building or structure that is imposed or required. by an existing law, ordinance or regulation, the provisions of this chapter shall controL (Ord. No. 157, Sec. 12.1.) b Criteria for Determination Whenever the Building Official, or Planning Commission of the City of Tustin is called upon to determine whether or not the use of land or any structure in any district is similar in character to the particular uses allowed in the district, the Commission shall consider the following factors as criteria for their determination. (1) Effect upon the public health, safety and general welfare of the neighborhood involved and the City at large REV. 1-2007 LU -2-91 Exhibit C Map showing all properties subject to TCC 9233c(y) ai N t U c c 'co ` 02 3 N c L N C O O c EJC Cc0c6 °) N Ow rjccu Ec- c c0 w � °3m a _O c .. O O U w O v O -V -O O N c c I— ,_ c— O C a N 0 E c- J C D) CL Q c 000 UN° a.wa) 5-o o ti z 3y -1•--tr l i 77757 J}_y7 11 A. 71 11 _ yA !IS :i JW 11 � -• �;� a ruA �.E : 1 ►qN[ DJIK • 1 1 — Or It7 cola ar MR -00 w 11, A jtga ■ S am m FM JINO A — Jer i •N e � ' '� � t i o ti z 3y -1•--tr l i 77757 � i i i i • Gpl J}_y7 11 A. 71 11 _ yA !IS :i JW 11 � -• �;� a ruA �.E : 1 ►qN[ DJIK • 1 1 — Or It7 cola ar MR -00 w 11, A jtga ■ S am m FM JINO A — Jer i •N e � ' Exhibit D Letter from McCormick, Kidman & Behrens, dated January 4, 2008 VIA U.S. MAIL AND FACSIMILE: 714-573-3113 Honorable Chair and Members Planning Commission Elizabeth A. Binsack Director, Community Development Department City of Tustin 300 Centennial Way Tustin, California 92780 Re: Sayed Mirrafati, M.D. CUP 07-020 — January 8, 2008, Planning Commission Agenda Dear Chair, Commissioners, and Ms. Binsack: This letter follows up on our letter from the December, 2007 Planning. Commission meeting which was continued to January 8, 2008. Our office represents Sayed Mirrafati, M.D., and his company, Mira Properties, LLC, which owns the property which is the subject of this CUP application. It is our understanding that staff continues to recommend denial of that application. The staff is recommending denial of that CUP. We have completed our review of most of the documents responsive to our Public Records Act request. We appreciate staff and legal counsel's efforts to provide those documents and their willingness to talk with us. Notwithstanding, the staff position is not supported by the evidence here. This building presents something of a special case. We understand why this staff does not want to approve this use for this location. However, the evidence does not support that staff position. Denial of this CUP will not achieve the result staff wishes: a building designed, built, and continuously used for office uses cannot somehow become a retail location simply because staff denies a CUP for a continuing office use. Under the applicable ordinances, based upon the evidence we are providing (part of which comes from our Public Records Act request to the City), the Planning MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS H. L. (MIKE) MCCORMICK• 650 TOWN CENTER DRIVE LAGUNA HILLS OFFICE: ARTHUR G. KIDMAN• SUITE 100 23601 MOUPARKWAY RUSSELL G. BEHRENS� SUZANNE M. TAGUE*' COSTA MESA, CALIFORNIA 92626 SUITETE 220 DAVID D. BOYER* TELEPHONES (714) 755-3100 LAGUNA HILLS, CALIFORNIA 92653 TELEPHONE (949) 454-2205 DANIEL J. PAYNE• BRADLEY D. PIERCE , (600) 755-3125 ELIZABETH L. MARTYN• FAX (714) 755-3110 JOAN J. BENNETT www.mkbiawyers.com BOYD L. HILL EDDY R. BELTRAN , MICHAEL D. CARTER ' HANNAH BENTLEY— TRAM T. TRAN JOHN P. GLOWACKI •A PROFESSIONAL CORPORATION - tCERTIFIED SPECIALIST - PROBATE January 4, 2008 ESTATE PLANNING 6 TRUST LAW THE STATE BAR OF CALIFORNIA BOARD Of LEGAL SPECIALIZATION —Of COUNSEL VIA U.S. MAIL AND FACSIMILE: 714-573-3113 Honorable Chair and Members Planning Commission Elizabeth A. Binsack Director, Community Development Department City of Tustin 300 Centennial Way Tustin, California 92780 Re: Sayed Mirrafati, M.D. CUP 07-020 — January 8, 2008, Planning Commission Agenda Dear Chair, Commissioners, and Ms. Binsack: This letter follows up on our letter from the December, 2007 Planning. Commission meeting which was continued to January 8, 2008. Our office represents Sayed Mirrafati, M.D., and his company, Mira Properties, LLC, which owns the property which is the subject of this CUP application. It is our understanding that staff continues to recommend denial of that application. The staff is recommending denial of that CUP. We have completed our review of most of the documents responsive to our Public Records Act request. We appreciate staff and legal counsel's efforts to provide those documents and their willingness to talk with us. Notwithstanding, the staff position is not supported by the evidence here. This building presents something of a special case. We understand why this staff does not want to approve this use for this location. However, the evidence does not support that staff position. Denial of this CUP will not achieve the result staff wishes: a building designed, built, and continuously used for office uses cannot somehow become a retail location simply because staff denies a CUP for a continuing office use. Under the applicable ordinances, based upon the evidence we are providing (part of which comes from our Public Records Act request to the City), the Planning MCCORMICx, KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 2 Commission is compelled to approve this CUP. If the City or Redevelopment Agency then wishes to work with the property owner to change the look or use of that building, they certainly are free to do so through negotiation. Therefore, we ask that the Commission set aside the staff recommendation and approve this CUP. Thank you for your consideration. FACTUAL BACKGROUND: As acknowledged by the staff report, this building was built in 1972 for office use (specifically including law and/or medical offices). The property was oriented away from El Camino Real, fronting on a parking area, specifically because of those office uses. To the best of our knowledge, and that of staff (based upon the materials contained in Ms. Kapadia's file on this application/location reviewed under our Public Records Act request), the property consistently has been used for professional office uses, specifically including an osteopath and chiropractor's office and an engineering office. (There is a 1989 application for construction of an office building which confirms a chiropractic use at that time.) It is very important to understand how this property is oriented on the property. As can be seen from the pictures submitted to the Planning Commission, the front door of the property is located facing away from El Camino Real. Several windows face the same direction as the front door, and some face the comer of El Camino Real and El Camino Way. There are a few windows to the rear of the property which face El Camino Real directly. Therefore, while the property is very visible from El Camino Real (staff has characterized it as a "gateway to the City"), it physically does not front on El Camino Real. The property consistently has been identified in various City redevelopment efforts. For example, in 1995, the property was included within an RFP for redevelopment of the entire area. (See the February 6, 1995 Authorization to Issue Request for Qualifications/Proposals.) That project was not pursued. However, Makena Plaza most recently expanded to include 770 El Camino Real through acquisition of a CalTrans parcel and a lot line adjustment with the adjacent motel. (See October 18, 2004, Action Agenda of the Community Redevelopment Agency.) Notwithstanding the proximity of Makena Plaza, however, the area is not exclusively retail. Other dental and chiropractic offices are located within the area, along with retail. In fact, the C-2 zone allows all C-1 "retail commercial" uses, which specifically include a long list of professional offices, including dental offices. MCCORMICK. KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 3 Similarly, the property has had a variety of addresses, some on El Camino Real, but most recently on El Camino Way. Within the past two years, the City asked Dr. Mirrafati to change the address on the property from 730 El Camino Way to 740 El Camino Real. Notwithstanding, according to title reports and U.S. Postal Service records, the property address is not 740 El Camino Real. The point of this confusion is that the orientation of the building is a significant factor here, as compared to a building located on a corner or similar location. . Dr. Mirrafati is a surgeon who purchased this property in August 2004 from the engineering firm which had been using it for offices; he initially intended to use it for his offices. Before he purchased the property, Dr. Mirrafati confirmed with Planning Staff (specifically, `Brad") that the property could be used for physicians, offices. He purchased the property with the intent of moving his own offices there after the engineering firm moved out. (See August 2, 2004 letter from Justina Willcom to Dr. Mirrafati which confirms existing office use on the property). He had proposed to build a new office building on the property. However, staff advised him of the then -current retail use requirements. Over the course of at least the next year, Dr. Mirrafati proceeded to try to work with City staff to allow such office use. The only reason there may not have been continuous office use of the property is because of these on- going discussions. At the same time, staff requested that Dr. Mirrafati change the address of the building to one on El Camino Real. By 2006, Dr. Mirrafati had determined that he would sell the property. However, when prospective purchasers approached the City, they were told that they had to have 50% retail and the building is not designed for retail uses. When he was approached by those who wished to locate retail uses, it became clear that extensive renovations to the property (if even structurally feasible) would be required, which would make it infeasible as a retail location. For example, in order to use this for retail, there would need to be some sort of reorientation of the building toward El Camino Real, as well as the addition of windows. Dr. Mirrafati will testify that Diedrich Coffee explored purchase of the building but determined that the cost of retrofitting would exceed its value. Our real estate expert will indicate that the cost of this type of change would be at least $500,000, or over half the current selling price of the building. (See the December 20, 2007 letter from J.R. Shah with Century 21 Realty.) In addition, the architect, Rich Crane, will indicate that there are structural issues with turning an older office building oriented away from the street into another type of use and, specifically, a retail use. Staff has indicated that although a retail use may not be possible, there remains a range of permitted uses for the building. Although theoretically this would appear to be true, in practice it is not. C-1 uses are pennitted.in the C-2 zone; although those include offices, apparently staff MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 4 interprets the zoning code to require that such offices only exist with retail included. In addition, the uses specifically allowed in the C-2 zone are bakeries, bowling alleys, food shops, mortuaries, nurseries, utility buildings, radio stores, restaurants, shoe shops, and studios; and professional and general offices not fronting onto El Camino Real. Other uses are allowed with a CUP (without the findings required here), including `other uses which in the opinion of the Planning Commission are of a similar nature." A common sense review of these uses compared to the building shows that there really is no other possible use an office uses (or similar configuration). One wonders if the City really would rather have an adult bookstore, figure model studio, nursery school, or pet store than a dentist office. The office use restrictions/retail requirements for the C-2 zone (specifically for those properties "fronting on El Camino Real") have been in place since 1983. (See Planning Commission Staff Report for Proposed Code Amendment 06-004, dated August 14, 2006, and provided by staff to supplement the materials regarding this application.) They have been amended and reviewed a number of times, suggesting that they are somewhat controversial. As we have learned, in 2006, at the request of the Planning Commission, the requirements were amended to provide for the accommodation of pre-existing office and professional uses. This amendment was the basis for the Tutor Whiz CUP and also is the basis for the Planning Commission's approval of this application. The specific purpose of this amendment to the zoning code, which became effective October 18, 2006, was to provide for a situation such as this one where there is no another feasible use for property. In the fall of 2006, staff recommended, and the Planning Commission approved, a CUP for the property for Tutor Whiz. Although considered a "school' (allowed with a CUP in the C-2 zone), apparently Tutor Whiz also is considered an office use since its approval was contingent on the approval of Code Amendment 06-004. Tutor Whiz is not a retail operation. This CUP remains in effect, but apparently staff does not consider the use to be "long-term." (In fact, the Tutor Whiz CUP contains a provision for annual review). Therefore, a determination already has been made by staff that Code Amendment 06-004 is relevant to this property. (See the October 9, 2006 materials regarding CUP 06-014, the Tutor Whiz CUP, provided to the Planning Commission by staff for the December 11, 2007 meeting). At this point, Dr. Mirrafati finally has found another buyer for the property (although at a reduced price). Dr. Mirrafati and Dr. Mehta have finalized a purchase -sale agreement for the property and have entered into escrow. One of the conditions of the sale is that Dr. Mehta be permitted to use the property for a dental practice. To that end, he has applied for this CUP. McCoRMICH, KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 5 In reviewing Ms. Kapadia's file for this application (obtained through our Public Records Act request), we reviewed the forms circulated by staff to other City Departments to obtain input in pending planning items. Copies of those forms are attached. As can be seen by reviewing the comments, there was no opposition to the application, although certain standard conditions are provided. Specifically, the Redevelopment Agency comment does not contain any of the statements made by staff in the staff report, but says only: "The building is very nondescript. We would like to see exterior enhancements to the building as a condition of approval." 1. This Property Does Not Front on El Camino Real: No CUP May be Required No CUP is necessary for Dr. Mehta to operate a dental practice at the subject property. Tustin City Code Section 9233, subsection (a)(1)(g) addressed uses permitted as of right, and includes "professional offices" which do not front on El Camino Real. In contrast, Section 9233, subsection (c), sets forth Conditionally Permitted Uses for the Central Commercial District that the subject property occupies. Section 9233, subsection (c)(y) specifically regulates, "Professional and general offices fronting onto Main Street or El Camino Real ..." (emphasis added). We have found no definition of "fronting" in the Tustin Municipal Code, and so we attribute to it its common meaning, i.e., that the front entrance of the building is on that street, particularly since the point of the new subsection is to attract retail customers. While the subject property's present address may be on El Camino Real at the request of City planning staff, the reality is that the building on the property does not front on El Camino Real. Instead, the front entrance of the building faces southeast, directly onto El Camino Way and on the opposite side of the building from El Camino Real, which runs behind the building. The northeast facade of the building, which directly faces El Camino Real, does not have any large windows or would not be allowed for signage. The parking lot is to the south and southeast of the building, with driveways from El Camino Way and El Camino Real. The letter submitted by the Chamber of Commerce notes that "retail store fronts attract pedestrian traffic." As can be seen, that is not the case here. It appears that the building was oriented away from El Camino Real intentionally because of its intended office use to avoid traffic noise and disturbance into the office. The City is aware that the property is not on El Camino Real, since staff asked to change the address from El Camino Way. About a year ago, the City of Tustin approached Dr. Mirrafati and asked him to change the building's address because the address (730 El Camino Way) allegedly was causing confusion with the mail delivery of another building on El Camino Way. When Dr. Mirrafati purchased the building, the address was 730 El Camino Way; however, the chiropractor who had owned the building had added the address of 605 El Camino Real. MCCORMICH, KIDMAN 8c BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 6 The Report assumes, without discussing, that the subject property fronts onto El Camino Real. This situation is not similar to that of a building on a comer, where there may be a plainly visible entrance to one side on another street. In this case, the entire orientation and construction of the building is away from El Camino Real. As such, the property is not subject to the requirement of a CUP for a dental practice. Rather, Section 9233, subsection (a)(1)(g) applies and the dental practice is a permitted use as of right. 2. Dr. Mehta Has Met the Requirements to Obtain a CUP. Even if a CUP were necessary to operate a professional office at the subject property, the City's stated requirements for issuing a CUP have been met. With all due respect to staff, the statements made in the December 11, 2007 staff report regarding these requirements simply are wrong and are not supported by the evidence, as explained in detail below. As to subsection (y)(1), as explained above, the professional use would be absolutely consistent with existing uses. The Report acknowledges a history of office use as far back as 1972. Office use continues to the present day, as can be seen from an examination of the staff report and related materials approving the Tutor Whiz CUP. In many ways, the dental office use is more compatible with surrounding businesses. In determining if this use would be more "beneficial," staff must be objective, rather than subjective, in applying the policies of the General Plan and Project Area Plan, or this subsection simply becomes a reason to deny reasonable uses. Denying a use cannot turn an office building into a business which generates sales tax unless staff hopes that by doing so Dr. Mirrafati will sell the building at a loss for a retail use. Turning older uses into retail uses is the job of the Redevelopment Agency, not planning staff. Subsection (y)(2) sets forth five criteria, "one or more" of which must be met to support a CUP for the proposed professional office use. Satisfying any one of these elements justifies granting the CUP and there is no "inability to positively make" the necessary finding as to any of the five criteria. a. Subsection (y)(2)(a) states: "The proposed use is to be located in an existine building originally desiy ned, built, and occupied as offices or converted to office use pursuant to an approved building_ permit." The staff report acknowledges that this is the case, but tries to argue that because Dr. Mirrafati was working with the City for over a year to try to approve a continuing use, the office use lapsed. This building was designed for office use and has been used exclusively for office use since at least 1972, as the Report acknowledges. The current use is predominantly as offices. There has been no lapse of any length of time from the office use. The Planning Commission already approved a CUP for the tutoring and counseling business contingent upon the finality of McCoRMICK, KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 7 Code Amendment 06-004 allowing certain office uses. The current use and past uses are substantially similar to the proposed dental practice; in fact, the proposed use would likely generate more retail business than the present use. b. Subsection (y)(2)(b) states, "The nronosed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments." Here, the building faces directly away from, and lacks any entrance or even windows facing, El Camino Real. It is unreasonable to conclude that such a facade would entice retail foot traffic. The Report's conclusion that the building is a "prime location for a retail establishment" is directly contradicted by the numerous potential purchasers and experts that Dr. Mirrafati can identify who would testify that there are significant obstacles preventing any predominantly retail use of the building. The Report here explicitly acknowledges, as stated above, that the present use is an office use, even though immediately above the Report purports to rely on the statement that the current use is retail. The Report's conclusion is simply unsupported by the facts. c. Subsection (y)(2)(c) states, "The nronosed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments." As explained above and supported by the testimony and evidence, the existing building would require significant reconstruction to accommodate any retail use. Such changes are structurally and economically impossible, impractical, and infeasible. The Report acknowledges that "the building is currently oriented towards the interior of the lot," and relies on the notion that "the addition of some storefront elements along the elevation of El Camino Real could feasibly transform the structures to accommodate retail." This is a planning statement, not a real world statement, and is contrary to fact. At the simplest level, the statement is unsupported by looking at the design of the building. Placing a sign on an otherwise bare wall — essentially what the Report suggests — will not transform this building, which, in its design and prior use, is shown to be clearly for offices into retail space. Once again, the Report explicitly acknowledges in its comments on this element that the current use is as an office and that the building's design and orientation are best suited to office use. d. Subsection (y)(2)(d) states, "The nronosed use is to be located in a multi -tenant retail center and is ancillary but comnlementary to the remaining mixed uses with respect to tune of use, hours of operation convenience and parking demand." In its analysis, the Report conveniently and inexplicably ignores the fact that the nearby "retail" plazas on which the Report relies to justify denying the CUP actually contain multiple dental MCC:oRmicx, KI mAN & BEHRENS. LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 8 practices and a chiropractic office. Such offices are commonly found mixed in among retail establishments across Southern California. Certainly these uses are ancillary to the remaining mixed uses in terms of type of use (there are other professional offices), hours of operation (which are similar, if not identical, to most. retail establishments), convenience, and parking. (The Report omits any parking analysis leading to the conclusion the parking is sufficient, as was the case with the CUP for Tutor Whiz). e. Subsection (y)(2)(e) states, "The proposed use is determined to be beneficial complementary, and compatible with surrounding neighborhood and nearby retail establishments." The report suggests, in analyzing subsection (y) (2) (e), that a dental practice would not attract "multi -trip retail" customers to the extent that a travel agency or tutoring facility would attract. This is mere conjecture. One might just as easily conclude that patrons of dental offices do visit additional businesses in the same trip, and there is certainly no support for the notion that no one is ever dropped off at a dental practice as a child might be at a tutoring facility. Dr. Mehta's letter of December 5, 2007 states he has observed his patients visiting businesses surrounding his other dental offices. , As noted above, there are already professional offices mixed in among the surrounding retail uses, specifically including a dental practice. 3. Staff AMears to Have Delayed and Then Refused to Grant a CUP to Prevent a Long: -Term Use that Would Require Payment of Relocation Costs in the Event of Acquisition of the Property. Throughout the Report, the Planning Commission suggests that the dental practice would "not be more beneficial in implementing applicable land use policies" (page 3), "lengthen the nonconforming use indefinitely and hinder the potential for retail or redevelopment" (page 4), "necessitate tenant improvements ... impairing the opportunity for retail at this location in the reasonable and foreseeable future" (page 4). Taken in its entirety, in light of the specific points lacking support cited above, as well as the overall lack of depth in the analysis of the Report, and considering that Dr. Mirrafati was refused the opportunity to review the public records in the planning file, the suggestion of an improper motivation for denying the requested CUP is palpable. We do not know what the Planning Commission's motivations are, but it is clear that the Report on its face does not justify denying the requested CUP. A cause of action lies where a public agency takes pre -condemnation steps that drive down the value of a property. At the time Dr. Mirrafati purchased the property, the previous owner also was approached by the developer of the nearby strip center. The developer determined not to make an offer on the property because he could not acquire the motel, but staff repeatedly has indicated that the City or RDA is interested in acquiring the property because it is the "gateway" to the area. The long time delay, inconsistent answers, intentional McCORMICK. KIDMAN & BEHRENS, LLP LAWYERS Planning Commission Elizabeth A. Binsack Re: Sayed Mirrafati, M.D. January 4, 2008 Page 9 misinterpretation of the Code requirements and, finally, denial of access to public records strongly suggests there is an improper motive here. Now, the agreed sale price represents a significant decrease in value since the Planning Commission began denying other similar CUP's in the same area. If the City intends to condemn. this property outright, then it has no right to drive down the property's value in advance without paying just compensation for what amounts to a pre -condemnation taking of private property. The repeated references to redevelopment in the Report suggest this might be the underlying intent. That is absolutely not a proper reason for denying the requested CUP. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP Elizabeth L. Martyn John Paul Glowacki ELM/JPG:ggg Copy: Sayed Mirrafati, M.D. David Kendig (via electronic mail at dkendig{a,wss-law.com) ZAUsers Data\ggoodreau\minafadVtrs\January 8 PC lettendoc Exhibit E Planning Commission Agenda Report of August 14, 2006 Planning Commission Minutes for August 14, 2006 City Council Minutes of September 5, 2006 • _ CONTINUED ITEM CUP 07-020 THE ATTACHED DOCUMENTS PERTAIN TO PLANNING COMMISSION AGENDA REPORT ITEM NO. 5 PREPARED FOR THE DECEMBER 11, 2007 MEETING • AUGUST 14, 2006 • PLANNING COMMISSION AGENDA REPORT SUBJECT: CODE AMENDMENT 06-004 (OFFICE USE PROVISIONS IN OLD TOWN) 0 ITEM #6 Inter -Com DATE: AUGUST 14, 2006 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CODE AMENDMENT 06-004 (OFFICE USE PROVISIONS IN OLD TOWN) RECOMMENDATION That the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment No. 06-004 related to the office use provision within the Central Commercial (C-2) District. BACKGROUND AND DISCUSSION The office use provision within C-2 Districts was initially adopted in 1983. The intent of the office use provision was to encourage retail establishments on the ground floor, particularly in Old Town. On July 2, 2001, the City Council adopted Interim Ordinance No. 1241 amending Sections 9233(a)(1)(g), 9233c(ff), and 9233(e) of the Tustin City Code clarifying the intent of the office use criteria. On August 13, 2001, the City Council adopted Interim Ordinance No. 1242 extending Interim Ordinance No. 1241 for 10 months and 15 days or until June 28, 2002. On May 6, 2002, the City Council adopted Ordinance No. 1251 replacing the interim ordinance with a permanent ordinance. On June 14, 2004, and June 26, 2006, the Planning Commission conducted workshops, discussed issues related to Implementation of the Office Use provision, and provided staff with direction on possible amendments to the office use provisions. Based upon input from the Planning Commission, Chamber of Commerce, and Tustin Old Town Association, the following proposed amendments to the Tustin Municipal Code are summarized as follows: Permitted Office Uses Professional and general offices that are not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation would be outright permitted. Conditionally Permitted Office Uses Professional and general offices that are fronting onto Main Street or EI Camino Real would be conditionally permitted provided that: Planning Commission Report CA 06-004 Page 2 of 3 1. Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. 2. Approval of professional and general office uses shall meet one or more of the following criterion: o The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. o The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. o The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. o The proposed use is to be located in a multi -tenant retail center and is ancillary but complimentary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. o The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Incompatible Uses Upon studying the Office Use provision of the C-2 District, the Planning Commission identified uses contained in the C-1 and C-2 District regulations that are not compatible with the intended retail environment. The following uses would be removed from the district regulations: • Business School • Interior Decorator • Job Printing • Telephone Answering Service • Typing and Addressing Service Planning Commission Report CA 06.004 Page 3of3 Section 9299.b(3)(k) of the Administrator to approve, application for professional Camino Real. 0 Approving Authority Tustin City Code would be added to authorize the Zoning conditionally approve, or deny a Conditional Use Permit and general office uses fronting onto Main Street and EI In addition, Section 9232a and Section 9233a of the Tustin City Code would be amended to authorize the Community Development Director and/or the Planning Commission to determine if certain unlisted uses are considered to be similar to those listed uses and would be allowed in the commercial districts. ENVIRONMENTAL ANALYSIS The proposed amendment is not subject to the California Environmental Quality Act (°CEQA") pursuant to Title 14, Chapter 3 of the California Code of Regulations, Sections 15060(c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. OTHER AGENCIES The Tustin Community Redevelopment Agency has reviewed and supports Code Amendment 06-004. In addition, Code Amendment 06-004 is consistent with the Tustin Old Town Association objective to stimulate the Old Town commercial district. Staff recommends that the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. Ihmimn= Just(4 Willkom Senior Planner Attachment: Resolution No. 4032 &P02 OW".dW Elizabeth A. Binsack Community Development Director 0 ATTACHMENT Resolution No. 4032 0 RESOLUTION NO. 4032 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL APPROVE CODE AMENDMENT 06-004 AMENDING THE TUSTIN CITY CODE RELATING TO OFFICE USE PROVISIONS WITHIN COMMERCIAL DISTRICTS. The Planning Commission of the City of Tustin does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That the intent of the office use provisions within Commercial districts was to encourage retail establishment on the ground floor, particularly in Old Town Tustin. B. That the current office use provisions within the Central Commercial (C-2) District restrict offices uses within any C-2 districts, including those that are located outside Old Town Tustin. C. That proposed Code Amendment 06-004 would restrict and regulate the installation and establishment of office uses only to those parcels fronting onto Main Street and EI Camino Real (major intersection for Old Town Tustin) and provide criteria for approving offices uses when fronting onto Main Street and EI Camino Real. D. That on August 14, 2006, a public hearing was duly noticed, called, and held on Code Amendment 06-004 by the Planning Commission. E. That the proposed amendments are exempt from the provisions of the California Environmental Quality Act (CEQA), as found in California Code of Regulations Sections 15060(c)(2) and 15060(c)(3). F. That the proposed code amendments are reasonably necessary to protect the health, safety, and welfare of the citizens of the City of Tustin. G. That the proposed amendments are consistent with the Tustin General Plan in that they comply with the following goals and policies: Exhibit A Resolution No. 4032 CA 06-004 Page 2 0 0 Land Use Element Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. Land Use Element 1.2: Provide for and encourage the development of neighborhoods serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration or retail service commercial uses on the street level of office projects. II. The Planning Commission hereby recommends that the City Council approve Code Amendment 06-004 by amending the Tustin City Code as follows: Section 9232.a is hereby amended as follows: a Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in those Retail Commercial District buildings specifically approved for occupancy by the respective land use category. Sections 9232.a.2(f), (k),(I), (s), and (u) are hereby deleted as follows: 9232.a.2(f) 9232.a.2(k) 9232.a.2(I) jObP 9232.a.2(s) 9232.a.2(u) Section 9233.a is hereby amended as follows: a. Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in the Central Commercial District. Exhibit A Resolution No. 4032 CA 06-004 Page 3 Section 9233.a(g) is hereby amended as follows: (g) Professional and general offices not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation. Section 9233.c(y) is hereby amended as follows: (y) Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation subject to the use criteria for office development iprovided herein. GGAWWOOR Of R8W building OF• -1 a, OF MY P914iGR of the 9FGURd fleg e##ise-use. ( _1) Wher$-Professional and general offices Proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the apgrovina authority finds based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject Proverty and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin CityCode and any Tustin Community Redevelooment Agency Project Area Redevelopment Plan than a retail commercial use on the subiect Property. - (2) Apgroval of Professional and general office uses shall meet one or more of the following criterion: a. The progosed use is to be located in an existing building orlainally desjaned, built and occupied as offices or converted to office use pursuant to an approved building permit. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments Exhibit A Resolution No. 4032 CA 06-004 Page 4 0 40 c. The proposed use is to be located in an existin4 building reouirino significant reconstruction that is not economically feasible or practical to accommodate retail establishments. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Section 9233.9 is hereby deleted as follows: Section 9299.b(3)(k) is hereby added as follows: ON III -filloilik - "- Ilk We Section 9299.b(3)(k) is hereby added as follows: • Exhibit A Resolution No. 4032 CA 06-004 - Page 5 (k) Professional and general offices fronting onto Main Street and EI Camino Real and located within the Old Town Commercial General land use designation. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 14th day of August, 2006. Chairperson ELIZABETH BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) City of Tustin ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California, that Resolution No. 4032 was duly passed and adogted at a regular meeting of the Tustin Planning Commission, held on the 14 day of August, 2006. ELIZABETH BINSACK Planning Commission Secretary • • EXCERPTS FROM THE AUGUST 14, 2006 PLANNING COMMISSION MEETING Ortlieb Floyd 7:15 p.m. Continued to next meeting, August 28, 2006 Adopted Resolution No. 4032 that would a tenant two spaces to the right of the tower. N the applicant was in attendance and wished to speak; no ire to the lectern. The Nblic Hearing dosed. It was ved by Nielsen, seconded by Puckett, to adopt Resolution No. 4032, staffs language regarding the maintenance of signs added. Mo 'on carried 5-0. 5: DESIGN EVIEW 06-004 FOR AUTHORIZATION TO BUILD AONES ORY COMMERCIAL RETAIL BUILDING 2,808 SQUARE ET IN AREA APPROXIMATELY FOUR (4) FEET FROM THE EXISTING NEWPORT AVENUE RIGHT -017 - WAY. THIS OJECT IS LOCATED AT 14111 NEWPORT AVENUE INT E PLANNED COMMUNITY COMMERCIAL ZONING DISTRI T. RECOMMENDA That the Planning d denying the request to four (4) feet to the prod That the Planning Corr directing the applicant to meet the required deveic ission adopt Resolution No. 4033 'truct the proposed retail building at line along Newport Avenue. 3n adopt Resolution No. 4034 with staff redesigning the site to t standards. The Director suggested the heag be opened to receive testimony from anyone who might be nable to return to the next meeting. No one came forward. The%h aring closed. It was moved by Puckett, seconded by Nielsen, to continue the item to the next Planning Commission meeting, August 28, 2006. Motion carried 5-0. 6. CODE AMENDMENT 06-004 RESTRICTING AND REGULATING THE INSTALLATION AND ESTABLISHMENT OF OFFICE USES ONLY TO THOSE PARCELS FRONTING ONTO MAIN STREET AND EL CAMINO REAL AND PROVIDING CRITERIA FOR APPROVING OFFICE USES WHEN FRONTING ONTO MAIN STREET AND EL CAMINO REAL. THIS AMENDMENT RELATES TO OLD TOWN TUSTIN IN THE CENTRAL COMMERCIAL (C-2) DISTRICT. Minutes — Planning Commission August 14, 2006 — Page 3 RECOMMENDATION: That the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. 7:18 p.m. The Public Hearing opened. Willkom Presented the staff report. Nielsen Asked what percentage of office uses might be grandfathered in with this amendment. Willkom Indicated she did not have a number but would guess about 10 percent. Floyd Asked if present leases would be honored. Willkom Stated that if an applicant were to propose a change, staff would not support office uses on the ground floor. Floyd Asked if there were no changes, tenants would be allowed to stay. Willkom Answered in the affirmative. Floyd Asked for a definition for what "Typing and Addressing Services" would be. Director Suggested that might refer to businesses that prepare resumes; staff felt the reference was too narrow and should be removed. Nielsen Asked if the C-2 designation focuses on EI Camino Real and Main Street. Willkom Answered in the affirmative. Kozak Asked why "Interior Decorator"would be removed. Willkom Responded that an interior decorator would be considered an office use. Director Added that; for example, if a contractor wanted to locate in Old Town, staff would consider that to be an office rather than a retail use; if the Commission does not concur with staffs — recommendation, those definitions can remain in juxtaposition with an interior decorator. Minutes — Planning Commission August 14, 2006 — Page 4 Nielsen Stated it would be best to encourage more retail in the Old Town area. Floyd Suggested it would be best to concur with staffs recommendation. Kozak Noted that he was trying to understand, suggesting that an interior decorator could be providing services for an antique store, drapery business, etc. Director IndicPted that such an ancillary office use in conjunction with retail activity would be acceptable. Puckett Questioned whether or not this amendment has the support of the Old Town Merchants Association. Willkom Indicated that the Tustin Oki Town Association (TOTA) received a notice, and there were members in the audience who might wish to speak. Linda Jennings, Stated that an interior decorator would be different from a 350 South B St. decorating store; and, asked what will happen to the various retail businesses in Jamestown Village and the property owned by the Kellys. Willkom Answered that, while the business storefronts in Jamestown Village are not facing EI Camino Real, their addresses are on EI Camino Real; therefore, those businesses would be subject to the Code Amendment. Jennings Welcomed Commissioner Kozak back to the Commission; suggested that the 10 percent office use number is very low, naming various uses; and, stated she (and the Tustin Preservation Conservancy) are pleased to see this amendment come about and encouraged staff to approve as much retail in Old Town as possible in order to keep the economic viability of the commercial district of Old Town. Nathan Menard, Offered his congratulations to Commissioner Kozak; and, stated 345 West 6t' St. that while the proposed Code Amendment may be a good start, asked if there might be some way to place term limits on the office uses currently in Old Town in order to reach the stated goal of a revitalized Old Town. 7:40 p.m. The Public Hearing closed. Minutes — Planning Commission August 14, 2006 — Page 5 Nielsen Agreed that this amendment is a step in the right direction and long past due; this is a good starting place; perhaps staff could research the possibility of establishing expiration dates for Old Town offices now in existence. Lee Stated he is in favor of the amendment and hopes the area can be rejuvenated, perhaps with a grocery store or other anchor tenant. Kozak Noted that he agreed with Commissioner Nielsen's suggestion that long-term office uses be investigated by staff to determine if options may be available to expedite the conversion of existing offices to retail uses. Puckett Stated he sees the amendment as a win-win situation. Floyd Thanked the representatives from Old Town; this should have been done years ago; staff should pursue options for retails uses; it may be a five- to ten-year plan. It was moved by Nielsen, seconded by Puckett, to adopt Resolution No. 4032. Motion carried 5-0. 7. TUSTIN LEGACY UPDATE This is prehensive table tracking all residential projects within !u,�n Legacy. The table reflects the number of permittits (including affordable housing), building permitsissue and units under construction, completed, and/or ccupied. Director Noted how the numbers 'calculated; and, indicated the report will be provided to the Com ssion monthly or every other month, depending on the number of pe its issued. STAFF CONCERNS 8. REPORT OF ACTIONS TAKEN Aj THE AUGUST 7, 2006, CITY COUNCIL MEETING. \ Director reported The City Council: • held the first reading of Ordinance No. 1314 relaR-ng to Lot Line Adjustment Regulations; and, \\ • approved Final Tract Map 17026 (Sector A); Sector maps should be submitted soon. Minutes — Planning Commission August 14. 2006 — Page e EXCERPTS FROM THE SEPTEMBER 5, 2006 CITY COUNCIL MEETING 4 3. for the final grant amounts to be determined. We a proposing that this year's entire allocation be used to create a new position of Cri Analyst and equip this position with related hardware and software. This bill requikes both a public hearing and a special fund established for these monies. Staff by Police Chief Scott Jordan. The public he ring opened at 7:21 p.m. There were no public speakers and the hearing closed Xt 7:22 p.m. Motion: It was m vi Hagen, to authori Department. Motion URBAN AREA by Councilmember Amante, seconded by Mayor Pro Tem usage of the funds as recommended by the Police rried 5-0. INITIATIVE (UASI) GRANT The City of Tustin, acting tpKough the City of Santa Ana Police Department in its capacity as the Core City fo the Santa Ana Urban Area under the FY -05 Urban Areas Security Initiative, ha applied for, received and accepted a federal homeland security grant. The ant is entitled the "FY05 Urban Areas Security Initiative." The grant is from the deral Department of Homeland Security, Office of Domestic Preparedness, throu the State of California Office of Homeland Security, and is intended to enhance ountywide emergency preparedness. The terms of the grant require that the t hardening of specific identifiable targets Department has identified the City Hall/ area of security concern and recomm pedestrian access -controlled gates to c critical equipment and resources, as employee parking area. ity of Tustin use certain grant funds for the Within the City of Tustin. The Tustin Police ' ice Department parking structure as an ;n the installation of both vehicle and �ntr the public access to areas housing w%ells provide a safe and controlled Staff report presentation by Police Chief Scott Jordpn. The public hearing opened at 7:24 p.m. There we hearing closed at 7:25 p.m. Motion: It was moved by Councilmember Bone, Amante, to authorize usage of the funds as Department. Motion carried 5-0. no public speakers and the CODE AMENDMENT 06-004: OFFICE USE PROVISION by Councilmember ed by the Police Code Amendment 06-004 would restrict and regulate the installation and establishment of office uses only to those parcels fronting onto Main Street and EI City Council Meeting September 5, 2006 Minutes Page 3 of 14 0 0 Camino Real and provide criteria for approving office uses when fronting onto Main Street and EI Camino Real. On August 14, 2006, the Planning Commission considered Code Amendment 06-004 and adopted Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. w Applicant: City of Tustin Community Development Department Staff report presentation by Community Development Director Elizabeth Binsack: Background • Office Use provision was adopted in 1983. The intent and purpose of the office use provision vi -as to encourage retail establishment on ground floor particularly in Old Town. • Code Amendment 02-002 adopted in May 2002 clarified the process and criteria for considering office uses within C-2 zone. • On June 14, 2004, and June 26, 2006 the Planning Commission conducted workshops, discussed issues related to implementation of the Office Use provision, and provided staff with directions on possible amendments to the office use provisions. Current Code Requirements • An office use is permitted to locate within the C-2 zoning district if: • the use is located on any floor above the ground floor; and, • occupies less than fifty (50) percent of the total floor area. • An office use may also be permitted anywhere in a building where a Conditional Use Permit was granted. • An office use can be conditionally permitted if: • it is located on the ground floor or in more than fifty (50) percent of the total floor area of a building; and, • the Planning Commission determines that the office use would be more beneficial than a retail establishment. • These provisions apply to construction of new office buildings and new office occupancies in existing buildings. Issues with Current Ordinance • Location of Office Uses • While most of the C-2 zoning districts are concentrated in the Old Town Tustin area, there are a number of properties zoned C-2 located outside of Old Town Tustin. • These areas are freestanding developments that are not particularly conducive to pedestrian activity. • The majority of inquiries to establish offices on ground floors have been in areas outside of Old Town Tustin. • There are a number of properties located in Old Town but do not contribute to pedestrian activities. These properties do not front onto Main Street or EI Camino Real. Configuration of Existing Office Buildings City Council Meeting September 5, 2006 Minutes Page 4 of 14 0 u Some buildings built as office buildings are not configured to accommodate retailing activity (without traditional retail storefronts). While some of these buildings may be easily converted to retail space, some would require more significant modifications. Quasi -Office and Incompatible Uses • Quasi -office uses are classified as either "retail businesses" or "service businesses" and are outright permitted. • Types of retail businesses that are outright permitted include a variety of retail shops as well as real estate offices. • Examples of service businesses that are permitted include barber shops, beauty parlors, interior decorators, restaurants, photograph galleries, travel agencies, telephone answering services, etc. • There has been some confusion about why certain uses that appear to be office uses are permitted. In addition, upon studying the office use provision, the Planning Commission identified uses contained in the C-1 and C-2 District regulations that are not compatible with the intended retail environment Proposed Amendment Permitted Office Uses • Professional and general offices that are not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation would be outright permitted. Conditionally Permitted Office Uses • Professional and general offices that are fronting onto Main Street or EI Camino Real would be conditionally permitted provided that: • Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the.subject property. Approval of professional and general office uses shall meet one or more of the following criterion: • The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. • The proposed use is to be located in design and orientation is impractical tc establishments. • The proposed use is to be located in reconstruction that is not economicall retail establishments. an existing building that because of its modify or alter to accommodate retail an existing building requiring significant y feasible or practical to accommodate City Council Meeting September 5, 2D08 Minutes Page 5 of 14 4. 0 The proposed use is to be located in a multi -tenant retail center and is ancillary but complimentary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. _ The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Proposed Amendment The following uses are proposed to be removed from the district regulations: • Business School • Interior Decorator • Job Printing • Telephone Answering Service • Typing and Addressing Service Proposed Amendment Approving Authority • Section 9299.b(3)(k) of the Tustin City Code would be added to authorize the Zoning Administrator to approve, conditionally approve, or deny a Conditional Use Permit application for professional and general office. uses fronting onto Main Street and EI Camino Real. • In addition, Section 9232a and Section 9233a of the Tustin City Code would be amended to authorize the Community Development Director and/or the Planning Commission to determine if certain unlisted uses. are considered to be similar to those listed uses and would be allowed in the commercial districts. Recommendation • Staff recommends that the City Council conduct a public hearing; introduce and have the first reading of Ordinance No. 1317 approving Code Amendment 06- 004; and, set for second reading at the Council's next scheduled meeting. The public hearing opened at 7:31 p.m. There were no public speakers and the hearing closed at 7:32 p.m. Motion: It was moved by Mayor Pro Tem Hagen, seconded by Councilmember Kawasima, to introduce and have first reading by title only of the following ordinance: ORDINANCE NO. 1317 - An ordinance of the City Council of the City of Tustin, California, approving Code Amendment 06-004 amending the Tustin City Code relating to Office Use Provisions within Commercial Districts Motion carried 5-0. APPEAL OF PLANNING COMMIfkSION DENIAL OF MINOR ADJUSTMENT 06- 001 (2650 DAVIS DRIVE, PRESIDI(3TRACT) On July 10, 2006, the Planning Co ission adopted Resolution No. 4029, denying Minor Adjustment 06-001 to authlkrize the height extension up to twenty City Council Meeting Minutes September 5, 2006 Page 6 of 14 Exhibit F Letter from Dr. Mehta dated January 17, 2008 i+ UO ua:lop Diamond Dental Care 9098602200 p.2 T!iurs&y. 1. ntiary 17. 2JJS 2:Sb 111.0 13771 Newport Ave #11 Tustin, CA92780 714-838.3230 City of Tustin, Planning Department, Tustin, CA 92780 Re: CUP application for 740 I] Camino Real, Tusdn(07-020) Dear Planning Commission, Reina, and Planning Department Staff I am writing this letter to address some concerns expressed by the Planning commission. It seems to me that Planning commission Is Concerned about general condition and appearance of the subject property. When i submitted my initial application, I was not asked or required to submit any pians to Improve exterior of the property by staff. If no CUP is required, l will include these improvements in my site plans. These plans will certainly include enha"mentfor the exterior, landscaping parking area and to bring current restroom to code. These plans can be reviewed and approved by the Staff. Uke any good owner I want my building to look it's best ; 1 want to thank Staff and entire Planning commission for their time and help on this application. Shroerely, Ashok MeN n-1 Unfilled Notes Page 1 Exhibit G Revised Resolution No. 4079 RESOLUTION NO. 4079 A RESOLUTION OF THE PLANNING COMMISSION DENYING CONDITIONAL USE PERMIT 07-020 TO AUTHORIZE A DENTAL OFFICE LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2) ZONE AND FRONTING ONTO EL CAMINO REAL I. The Planning Commission of the City of Tustin does hereby resolve as follows: A. That a proper application, Conditional Use Permit 07-020, was filed by Dr. Ashok Mehta, requesting authorization to establish a dental office in an existing stand-alone building at 740 EI Camino Real. That the property fronts onto EI Camino Real, is located in the Central Commercial (C-2) zoning district, and is designated as Old Town Commercial by the General Plan Land Use Policy Map; B. That a public meeting was duly called, noticed, and held for said application on December 11, 2007, by the Planning Commission; C. That at the December 11, 2007, public hearing, the applicant's legal counsel submitted correspondence and a Public Records Act request to the Planning Commission. D. That the Planning Commission continued the project to the January 8, 2008, meeting to allow the Planning Commission and City staff time to review and respond to correspondence and the Public Records Act request. E. That at the January 8, 2008, public hearing, the Planning Commission continued the project to the January 22, 2008 meeting, in order to conduct further research as to whether a conditional use permit was required; F. That pursuant to Tustin City Code Section 9233c(y), professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to certain use criteria; G. That Tustin City Code does not define "fronting" and that the Planning Commission has considered available definitions contained in the Tustin City Code and Webster's Dictionary to determine the meaning of "fronting" as follows: "Lot Front" is defined as "the narrowest dimension of a lot fronting on a street," which in the case of the subject property, is the portion of the lot fronting on EI Camino Real. "'Side and Front of Corner Lots' means the narrowest frontage of a corner lot facing the street is the Resolution No. 4079 CUP 07-020 Page 2 front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces." Webster's Dictionary defines "frontage" as "Land adjacent to a building, street." In the case of the subject property, the land is adjacent to both EI Camino Real and EI Camino Way, thus it is fronting upon both streets. H. That the Planning Commission determines that, like any property with any portion of the lot fronting on to EI Camino Real or Main Street and located within the Old Town Commercial General Plan land use designation, the subject property is subject to Tustin City Code Section 9233c(y). That the subject property fronts on B Camino Real, therefore a conditional use permit is required to establish a dental office at the subject location. J. That the Planning Commission has considered the matter and determined that the proposed project does not meet finding requirements needed to support the conditional use permit, in that: 1. Pursuant to Tustin City Code Section 9233c(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233c(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: Resolution No. 4079 CUP 07-020 Page 3 a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted -to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building was occupied as an office since the building was relocated to and first occupied in Tustin. The last business license issued for this property prior to the establishment of a tutoring facility was for EI Camino Chiropractic whose business license expired in 1995. Thus, the office use has lapsed for more than twelve (12) consecutive months and pursuant to Tustin City Code Section 9273 (Non -conforming Structures and Uses) any subsequent use shall comply with current City Code. The intent of a non -conforming code in the City's Zoning Code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulations until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. To further the non -conformity of a use and/or building does not meet the intent or purpose of a non -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non- conforming use contrary to the standards set forth in the Zoning Code and goals and objectives of the General Plan. On October 9, 2006, the Zoning Administrator approved CUP 06- 014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building and further invalidating the continuance of the property as an office use. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of EI Camino Real and EI Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. Evidence presented by the applicant about the Resolution No. 4079 CUP 07-020 Page 4 cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish new office uses. There is inadequate evidence that modifying the building to accommodate retail uses is impractical. c. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on EI Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. Also, evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish proposed new office uses. There is inadequate evidence that modifying the building to accommodate retail establishments is economically infeasible or impractical. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to EI Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district, is to encourage pedestrian activity in the retail area. Although the applicant has Resolution No. 4079 CUP 07-020 Page 5 indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at a tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. 3. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects (Policies 1.2 and 10.6). Encourage the elimination of non -conforming uses and buildings (Policy 4.4). The project proposal is for a dental office to fully occupy a single - story building located in an area identified for retail commercial uses. The Old Town neighborhood has been recognized by the City Council and Chamber of Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. Tustin City Code Amendment 06-004 was adopted to address this deficiency and encourage much- needed retail uses in the heart of Old Town Tustin. In addition, grating the CUP for an office use would further the non -conforming status of the property, in direct conflict with General Plan Policy 4.4. The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-1), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or EI Camino Real and located outside of the Old Town Commercial General Plan land use designation. K. That the project is categorically exempt pursuant to Section 15270 (Projects Which are Disapproved) of the California Code of Regulations (Guidelines for the California Environmental Quality Act); Resolution No. 4079 CUP 07-020 Page 6 II. The Planning Commission hereby denies Conditional Use Permit 07-020 to authorize a dental office in an existing building at 740 EI Camino Real in the C-2 zoning district and Old Town Commercial General Plan designation. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission, held on the 22nd day of January, 2008. JOHN NIELSEN Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4079 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 22nd day of January, 2008. ELIZABETH A. BINSACK Planning Commission Secretary Exhibit D Minutes, Planning Commission Meetings December 11, 2007, January 8, 2008, and January 22, 2008 MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION DECEMBER 11, 2007 7:03 p.m. CALL TO ORDER Given PLEDGE OF ALLEGIANCE ROLL CALL Present: Chair Nielsen, Chair Pro Tem Puckett Commissioners Kozak, Murray, Thompson Staff present Elizabeth Binsack, Community Development Director David Kendig, Deputy City Attorney Dana Ogdon, Assistant Community Development Director Dana Kasdan, Engineering Services Manager Terry Lutz, Principal Engineer Scott Reekstin, Senior Planner Justina Willkom, Senior Planner Alice Tieu, Associate Planner Reina Kapadia, Assistant Planner Eloise Harris, Recording Secretary None PUBLIC CONCERNS CONSENT CALENDAR Approved 5-0 1. APPROVAL OF MINUTES — NOVEMBER 13, 2007, PLANNING COMMISSION MEETING. Approved 4-0 2. APPROVAL OF CERTIFICATE OF APPROPRIATENESS Thompson REPORT REGARDING OLD TOWN PROJECTS abstained APPROVED BY THE COMMUNITY DEVELOPMENT DEPARTMENT FROM AUGUST 28, 2007, TO DECEMBER 11, 2007. It was moved by Murray, seconded by Kozak, to approve Items No. 1 and 2. Motion carried 4-0. Thompson abstained on Item No. 2. Pulled for discussion 3. HISTORIC REGISTER AND COMMENDED PROPERTY Approved 5-0 PROGRAMS The procedure was modified by the City Council on November 6, 2007, to allow the Tustin Preservation Minutes — Planning Commission 12-11-07 - Page 1 Conservancy, Tustin Area Historical Society, or others to submit the nominations. Puckett Asked if it was Council's desire that the Conservancy and the Historical Society present nominations directly to the Council or to proceed through the Planning Commission. Director Indicated that the recommendations will still come through the Planning Commission; the Council's desire was that other people be allowed to recommend properties for nomination. Murray Asked for clarification regarding the reference to an alternating basis and whether or not this would take place three times a year. Director Noted the intention would be four nominations per year with each group nominating twice. Murray Asked if there would be any particular evaluation criteria of which the Commission should be aware with reference to Item No. 4. Director Indicated that the overall condition of the property, what the Mills Act criteria would be, property maintenance, etc. are the areas with which staff has traditionally been concerned. Nielsen Added that the Planning Commission would also discuss the material presented. It was moved by Puckett, seconded by Kozak, to approve Item No. 3. Motion carried 5-0. PUBLIC HEARINGS: Adopted Resolution 4. ZONE CHANGE 07-003 TO CHANGE THE ZONING No. 4078 DESIGNATION FROM PLANNED COMMUNITY INDUSTRIAL (PC -IND) TO PLANNED COMMUNITY INDUSTRIAUBUSINESS (PC-IND/BUS) ZONING DISTRICT. THIS PROJECT IS LOCATED AT 15771 RED HILL AVENUE IN THE PLANNED COMMUNITY INDUSTRIAL (PC -IND) ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4078 recommending that the City Council approve Zone Change 07-003. Minutes — Planning Commission 12-11-07 - Page 2 7:10 p.m. The Public Hearing opened. Tieu Presented the staff report. Nielsen Asked if there were any questions for staff. Thompson Asked for clarification regarding the borders of the Irvine Industrial planned community mentioned in the report. Tieu Pointed out on the slide that the borders were Valencia Avenue, Red Hill Avenue, Warner Avenue, up to Bell Avenue. Thompson Questioned whether the area is larger than shown or had any historical boundary that went further. Tieu Answered in the negative. Nielsen Invited the applicant to the lectern. Jon Marchiorlatti, Stated that the developer has 36 offices throughout the United representing States and looks forward to adding an office in Tustin at this Pannattoni location; this building lends itself well to the type of product planned; Development over the next few years in Orange County projects will be repositioned just like this; it bodes well for the applicant as well as Tustin to have area in a building for Pannattoni to show clientele how the product can work with cities to redevelop and rehabilitate areas such as this. 7:16 p.m. The Public Hearing closed. Commissioners It was the consensus of the Planning Commission that this is an excellent project for this site. It was moved by Puckett, seconded by Murray, to adopt Resolution No. 4078. Motion carried 5-0. Continued to 5. CONDITIONAL USE PERMIT 07-020 A REQUEST TO January 8, 2008, ESTABLISH A DENTAL OFFICE WITHIN AN EXISTING Planning BUILDING FRONTING ONTO EL CAMINO REAL. THIS Commission PROJECT IS LOCATED AT 740 EL CAMINO REAL IN THE meeting CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4079 denying Conditional Use Permit CUP 07-020. Minutes — Planning Commission 12-11-07 - Page 3 Nielsen Indicated that it was staff's request to continue this item to the first Planning Commission in January; and, asked the Director to provide further comments. Director Indicated that various correspondence was received that requires more staff time to allow for appropriate responses to be prepared; a public records request was also received that will take some time to fill. Suggested that Chair Nielsen open the public hearing to receive testimony that people may wish to provide this evening and that the hearing be continued to January 8, 2008. 7:22 p.m. The Public Hearing opened. Ashok Mehta, DDS, Stated that he is a dentist with a practice in Tustin Plaza which he applicant intends to move to a larger location; he was initially told there was no problem with opening a dental office at 740 EI Camino Real; later he was told that it would not be an appropriate use; he would not have started the process if that information has been provided at the beginning; he believes this would be a better use than what is presently operating in that location. Jigar Shah, Real Indicated he represents buyers for these types of transactions; this Estate Broker property has been on the market since 2005; it has been hard for sellers to interest retailers in making an offer due to the square footage, ingress and egress of the property, and the way it is situated; the real estate market is not favorable for sellers; a dental use would make a perfect fit and would be beneficial to the retailers in the vicinity. Steve Kalthoff, Read various portions of the City Code sections that would allow Crane Architectural this building to be used as a dental office and also be beneficial to Group the neighborhood. Puckett Asked the applicant about other dental office locations. Dr. Mehta Stated he has four other locations. Puckett ' Asked if this location would be Dr. Mehta's primary practice site. Dr. Mehta Answered that he works part-time in the Tustin office and would continue to do so. Minutes — Planning Commission 12-11-07 - Page 4 Elizabeth Marlyn, Stated that the applicant will provide further information to the City McCormick, Kidman staff and work with staff so that by January 8, 2008, a vote for & Behrens, LLP approval may be possible. 7:30 p.m. The Public Hearing closed. Kozak Asked staff if, given the Christmas holidays, the suggested timeframe would allow enough time for staff to address the matter, including the legal documents received this evening and be able to present at the first meeting in January. Director Responded in the affirmative, adding that staff expects to be able to respond to the public records request within the appropriate timeframe. It was moved by Puckett, seconded by Thompson, to continue the item to January 8, 2008. Motion carried 5-0. Adopted Resolution 6. GENERAL PLAN AMENDMENT 07-002 FOR Nos. 4076 and 4077 REORGANIZATION 07-01 (PACIFIC CENTER EAST) TO ESTABLISH THE GENERAL PLAN DESIGNATION OF "PLANNED COMMUNITY COMM ERCIAUBUSINESS" FOR THE ANNEXATION OF APPROXIMATELY 1.243 ACRES IDENTIFIED AS REORGANIZATION RO 07-01. RECOMMENDATION: That the Planning Commission: 1. Adopt Resolution No. 4076 recommending that the City council find that General Plan Amendment 07-002 and Reorganization 07-01 are within the scope of the adopt FEIR, as revised by Supplement #1, for the project entitled "Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening." 2. Adopt Resolution No. 4077 recommending that the City Council approve General Plan Amendment 07-002 for Reorganization 07-01. Thompson Asked if the proposed property was within the original boundary of the Specific Plan. Reekstin Answered in the affirmative. Minutes — Planning Commission 12-11-07 - Page 5 Thompson Asked for further explanation of how evaluations are made regarding these types of reorganizations. Reekstin Explained that, when the Supplement was prepared in 2003, there was some re-evaluation such as a traffic study; at that point, the project description included the fact that a boundary reorganization would be part of the project; there have been no significant changes to the development proposed, so no new environmental impacts would need to be presented as part of this project. Director Added that there is no specific rule regarding the length of time between reviews; when there are changed conditions or when it may be warranted becomes known through the preparation of an Initial Study that tells staff what would warrant further environmental evaluation; virtually every project at the Legacy is consistent with the EIS/EIR that was prepared; an Initial Study ensures that there are no changed conditions regarding what was originally envisioned. Thompson Asked how Santa Ana zones the parcel. Reekstin Replied that the area is Caltrans property and public right-of-way with no Santa Ana zoning designation; it is wrapped in with the 55 freeway corridor. 7:44 p.m. The Public Hearing closed. It was moved by Thompson, seconded by Murray to adopt Resolution Nos. 4076 and 4077. Motion carried 5-0. None REGULAR BUSINESS STAFF CONCERNS: 7. REPORT OF ACTIONS TAKEN AT THE NOVEMBER 20, AND DECEMBER 4, 2007, CITY COUNCIL MEETINGS. Director reported The City Council held the second reading of Ordinance No. 1344 related to the construction codes; staff would like to schedule a 6:00 p.m. workshop before the first meeting in January regarding the new codes and also the Brown Act. Commissioners Agreed that would be acceptable. Minutes — Planning Commission 12-11-07 - Page 6 Director The City Council approved the zone change related to the American Senior Living project; the second reading will take place at the Council's first meeting in January. The City Council heard the Tentative Map related to Tustin Legacy Community Partners, Neighborhood E, which will be moving forward; the Design Review within that area is also developing nicely. While Alice Tieu gave a presentation this evening, the Planning Commissioners had not been formally introduced to her; Alice came to Tustin from the City of Brea, has a degree from UC Irvine, and is in the process of working on her Master's in Urban and Regional Planning at Cal Poly Pomona. Happy Holidays on behalf of the Community Development Department. COMMISSION CONCERNS Thompson Stated he attended the Building Industry show in Long Beach; the classes were quite informative: Affordable Housing presented by the City of Los Angeles; Sustainable Development by northern California communities; and an overall prospectus on the housing market. Indicated he attended the Grand Opening for Play & Trade; kudos to the Tustin Chamber of Commerce for reaching out to small businesses such as Play & Trade; there was a great turnout. Also attended the Grand Opening of CR&R's recycling facility in south Orange County; it was very interesting to see where things are going in that industry. Congratulated the new Mayor, Jerry Amante, and Mayor Pro Tem Doug Davert; kudos to outgoing Mayor Lou Bone, a man of tremendous energy and commitment to Tustin. Noted the tip-off of the holidays at the Thompson home was being visited by "Santa" Puckett; it is always a pleasure to see the Tustin Santa Sleigh with all the volunteers. Wished everyone a wonderful Christmas, Hanukkah, and New Year. Minutes — Planning Commission 12-11-07 - Page 7 Kozak Added his congratulations and thanks to outgoing Mayor Bone, incoming Mayor Amante, and Mayor Pro Tem Davert. Thanked staff for all the work done during 2007, including the Planning staff, City Council, Code Enforcement staff, etc.; he looks forward to another great year in 2008. Welcomed Ms. Tieu to the City staff. Offered Christmas, Hanukkah, and New Year wishes to everyone and asked that everyone keep in mind during this holiday season the forces in combat zones around the world and ask that they be kept safe and come home safely to their loved ones. Murray Offered belated condolences to the City Manager in the loss of his mother. Noted the Prayer Breakfast was outstanding; Commissioner Puckett was in outstanding form and made everyone proud. Thanked staff for indulging him, as a new Commissioner, in his many questions and comments; it has been a learning environment and staffs help was much appreciated. Stated he would be looking forward to Santa Claus and his sleigh; and, added that he will be riding on the sleigh on his birthday, the 19th. Noted that The District seems to be doing very well and offered his compliments to everyone who was on the Commission when the projects were beginning; however, he continues to hear concerns about the traffic flow and hopes that staff can alleviate the ingress/egress difficulties. Offered congratulations to Mayor Amante and Mayor Pro Tem Davert and agreed that outgoing Mayor Bone is a bundle of energy. Fight on, USC, and good luck at the Rose Bowl. Puckett Agreed with the other Commissioners that Mayor Bone had a tremendous second year as Mayor. Congratulated Mayor Amante and Mayor Pro Tem Davert. Thanked staff and his fellow Commissioners for a great year. Minutes — Planning Commission 12-11-07 - Page 8 Puckett continued Noted that the Santa Sleigh will continue through next week, wished everyone a very Merry Christmas and Happy New Year, and stated he looks forward to 2008. Nielsen Added his thanks to staff for their hard work. Congratulated Mayor Amante and Mayor Pro Tem Davert. Noted that outgoing Mayor Bone epitomizes a community leader; people may not be aware of his work behind the scenes, hours and hours on committees, speaking to people trying to do the public's work, etc.; Mayor Bone is a fine public servant and Tustin residents are very lucky to have him in the City. Stated the Metrolink Holiday Express is coming to town on Sunday, December 16; refreshments will begin about 5:15 p.m. at the Tustin train station; this should be fun for all. Indicated. that he attended the Mayor's Thanksgiving Prayer Breakfast; Mr. Devore was an excellent speaker who had done interesting research on the historical aspects of Thanksgiving which was entertaining and informative. Stated he also attended the Play & Trade opening and brought his teenagers to scan the shelves for their favorite video games. Asked staff for information regarding the sign indicating that the Drug Emporium will be closing. Director Responded that notification has been received that they are closing country -wide. Nielsen Requested information regarding smoke shops and other tobacco retail outlets and whether or not such use would require a conditional use permit or be considered standard retail. Director Answered that such shops are standard retail. Nielsen Indicated that a shop just opened across from Tustin High School, which does not seem a good location. Director Replied that staff can look into the situation. Nielsen Requested tentative dates for a tour of The District by the next Planning Commission meeting. Minutes — Planning Commission 12-11-07 - Page 9 Nielsen continued Asked if the new zone changes have been completed. Director Answered that staff has a draft zoning code, but the City Council has a contract with ULI; staff is waiting to see what impact that may have. Nielsen Wished everyone Merry Christmas, Happy Hannukkah, and urged people not to drink and drive. 8:02 p.m. ADJOURNMENT The next regular meeting of the Planning Commission is scheduled for Tuesday, January 8, 2008, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way. Joh ielsen Chairperson Elizabeth A. Binsack Planning Commission Secretary Minutes — Planning Commission 12-11-07 - Page 10 SPECIAL MEETING — WORKSHOP: THE BROWN ACT BEGAN AT 6:00 P.M. IN THE CHAMBER CONFERENCE ROOM MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION JANUARY 8, 2008 7:04 p.m. CALL TO ORDER Given PLEDGE OF ALLEGIANCE ROLL CALL Present: Chair Nielsen Chair Pro Tem Puckett Commissioners Kozak, Murray, and Thompson Staff present Elizabeth Binsack, Community Development Director David Kendig, Deputy City Attorney Scott Reekstin, Senior Planner Justina Willkom, Senior Planner Alice Tieu, Associate Planner Reina Kapadia, Assistant Planner Brad Steen, Code Enforcement Officer Eloise Harris, Recording Secretary Linda Jennings, PUBLIC CONCERNS 350 South B Street, Tustin Indicated she was speaking as President of the Tustin Preservation Conservancy; presented copies of Carol Jordan's latest book to the Planning Commissioners; asked the Commission to consider signage for Old Town, which will not look like signage in other areas of Tustin, sometime this year and also provide commercial regulations and design guidelines for Old Town. Approved CONSENT CALENDAR 1. APPROVAL OF MINUTES – DECEMBER 11, 2007, PLANNING COMMISSION MEETING. It was moved by Puckett, seconded by Murray, to approve the Consent Calendar. Motion carried 5-0. Minutes — Planning Commission January 8, 2008 — Page 1 PUBLIC HEARINGS Continued to the 2. CONTINUED PUBLIC HEARING FOR CONDITIONAL January 22, 2008, USE PERMIT 07-020, A REQUEST TO ESTABLISH A Planning Commission DENTAL OFFICE WITHIN AN EXISTING BUILDING meeting FRONTING ONTO EL CAMINO REAL. THIS PROJECT IS LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4079 denying Conditional Use Permit CUP 07-020. 7:07 p.m. The Public Hearing opened. Kapadia Presented the staff report. Director Added that the correspondence received January 4th from the applicant's representative was provided the day the agenda packet was sent to the Commission; staff provided copies in the briefcases to the Commissioners. Thompson Asked for clarification for the C -2P zoning designation. Kapadia Replied that the allows relaxation that district. P designates a Parking Overlay District which of some parking standards for certain uses in Thompson Requested clarification as to how the 2006 ordinance was less restrictive than the 1983 resolution. Willkom Stated that, prior to the 2006 code amendment, the provision for office use applied to all C-2 zoning districts; in 2006, the area use was reduced for those properties fronting onto EI Camino Real and Main Street located within the Old Town Commercial land use designation; criteria were included allowing the Zoning Administrator to consider conditional use permit applications for office uses in that district. Thompson Asked if the 12 -month lapse rule referred to in the staff report is a provision also within the ordinance, a continued use versus another category. Kendig Responded that the 12 -month rule draws from the City's non- conforming use ordinance, which is not the same as the 2006 ordinance related to office uses. Minutes — Planning Commission January 8, 2008 — Page 2 Thompson Requested further clarification regarding the orientation of the property and how that determination is applied. Kendig Stated the ordinance states as follows: "Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial Land Use designation are subject to the rules in this provision." The key language would be "fronting onto Main Street or EI Camino Real"; one of the decisions the Commission is required to make is whether or not the building fronts onto EI Camino Real. Nielsen Asked for the general definition of the City's views as fronting onto a particular street—the entryway to the building, the front -facing part, the largest portion of the building, or what. Director Indicated that a front yard is a different definition from fronting; this property has frontage on both EI Camino Real and EI Camino Way; a front yard is the narrowest portion of the lot fronting on the street; this is not always clear for a corner lot, and a judgment call may be required. Kendig Clarified that the ordinance does not contain a definition of fronting onto; it was necessary for staff to interpret the ordinance by determining what construction of the language would advance the purpose of the ordinance. Thompson Noted the references to feasibility of cost; and, asked if any estimate had been prepared by a licensed professional that substantiates the feasibility issue. Director Replied that staff has not prepared or received any such estimate. Puckett Referred to the letter received from the attorneys dated January 4; and, asked if there was anything substantially different from earlier letters that would require further study by staff. Kendig Indicated there was additional. information in the more recent letter; one of the items referenced that the C-2 zone incorporates by reference all of the uses allowed in the C-1 zone and that the C-1 zone permits dental uses; Section 9233, which sets forth the C-2 uses, contains a general incorporation by reference of the C- 1 uses and the specific criteria that must be applied to office and business uses in the C-2 zone; the more specific provisions prevail over the general incorporation of other uses. Nielsen Asked for an explanation of the different addresses 705 EI Camino Real and opposed to 740 EI Camino Real. Minutes — Planning Commission January 8, 2008 — Page 3 Willkom Responded that, at the time of the request was presented to the City, there was confusion regarding the address of the property; when staff performed research, the Assessor's parcel number was used to indicate the two addresses were the same property. Nielsen Indicated that the information received from staff suggests the property fronts both on EI Camino Real and EI Camino Way; and, asked if that would be an accurate interpretation. Director Answered in the affirmative. Nielsen Asked how many dental facilities exist in the surrounding retail centers. Director Replied that staff does not have that information; staff can run a Business License check to determine that number. Nielsen Queried whether or not the City has had any recent discussions regarding condemnation of this property. Director Answered in the negative. Nielsen Asked if the City has a strategy to purposely drive down the value of the property so as to acquire it via eminent domain. Director Answered in the negative. Nielsen Invited the applicant to the lectern. Dr. Mirrafati, property Stated he has practiced in Tustin since 1999; he purchased the owner property three years ago with the intention of moving his practice to this location; after 12 months of discussion, he and City staff were unable to arrive at a workable proposal; he determined it would be necessary to sell the property; after receiving multiple offers that were all rejected by the City; when he purchased the property the address was EI Camino Way; the City requested the change to EI Camino Real; Dr. Mehta made a proposal to purchase the property to relocate his dental office from Larwin Square; there are more than 10 dental offices in the vicinity; Thompson Suggested that the Anderson family, the owners of the engineering firm who sold to Dr. Mirrafati, did not practice in that building. Dr. Mirrafati Responded that Mark Anderson rented back from Dr. Mirrafati for six months after the purchase; his engineering office was there during that time. Minutes — Planning Commission January 8, 2008 — Page 4 Thompson Referred to the letter of August 2, 2004, describing the type of uses the City would look for in that building; and, asked if that letter occurred before or after Dr. Mirrafati purchased the building and what his response was to that letter. Dr. Mirrafati Stated the letter was received after he purchased the building; at that time he was told the building would need to be 50 percent retail; as a cosmetic surgeon, most of his practice is retail; when he and his architect met with City staff, nothing they suggested met with the City requirements; after 12 months of trying to reach an agreement as to what he could do with the building, he realized nothing was going to work and he would need to sell the building. Kozak Asked for clarification regarding his attempt to work with staff on a development proposal for the site as a two story building with office use and retail. Dr. Mirrafati Responded that was his plan, but the City indicated his practice did not involve 50 percent retail; staff suggested a coffee shop or hair stylist for the first floor; those types of use do not fit well with cosmetic surgery. Kendig Asked Dr. Mirrafati if he recalled the exact date he purchased the building in August 2004. Dr. Mirrafati Answered he did not but could get the date. Thompson Asked for clarification regarding the exact Tutorwhiz use. Director Indicated that the City approved a school use, a conditionally permitted use within the C-2 District, with ancillary offices and a minor retail portion; a Zoning Administration Action was approved which is very similar to a Planning Commission resolution that sets forth the conditions of approval; there was also a site plan that articulated the particular uses within the building (Exhibit D attached to the staff report); the use was not to commence until after October 18th which was when Ordinance No. 1317 was approved. Dr. Mirrafati Stated that Tutorwhiz has offices with a couple of classrooms, a part-time business that is open two nights of the week; a dental office would generate more traffic than Tutorwhiz. Murray Asked for confirmation that the school use was granted based upon a school being a conditionally permitted use. Director Answered in the affirmative. Minutes — Planning Commission January 8, 2008 — Page 5 Puckett Dr. Mirrafati Puckett Asked Dr. Mirrafati if he currently practices in Tustin. Answered in the affirmative. Asked Dr. Mirrafati his reasons for wanting to relocate. Dr. Mirrafati Indicated he wanted a larger space to perhaps add spa amenities to the practice which is not possible in a tucked -away medical office. Puckett Questioned whether Dr. Mirrafati has been willing to move to the building for three years but not been able to reach an agreement with the City. Dr. Mirrafati Stated he had presented multiple plans to the City, spent close to $15,000 in architectural fees, and could not come up with a plan that the City found acceptable. Murray Asked for confirmation that the doctor's discussions with the City began in 2004. Dr. Mirrafati Answered in the affirmative, excepting the six months that Mark leased back from him; he also spent quite a lot to improve the look of the building. Nielsen Asked for clarification regarding the cost factor in changing the use to a dental office. Dr. Mirrafati Replied that the doctor who wants to buy the building was available to answer that question. Nielsen Indicated that his question related to cost and functionality and Dr. Mirrafati's reference to $250,000 for a salon and $600,000 to retrofit the building for retail and relating those figures to a dental office use. Dr. Mirrafati Answered that he assumed it would be about the same; however, as a property owner, he knew he would have to spend approxi- mately $500-600,000 for remodeling; it made no sense for him to spend that sort of money for a possible five-year lease and have the lessee leave at the end of five years. Nielsen Asked if the cost burden would have been on Dr. Mirrafati rather than the salon or coffee house applicants. Dr. Mirrafati Answered in the affirmative; for example, a contractor indicated that it would cost $450,000 to make the improvements requested by Dietrich's. Minutes — Planning Commission January 8, 2008 — Page 6 Nielsen Verified with Dr. Mirrafati that the projects were lease -based. Dr. Mirrafati Answered in the affirmative. Nielsen Asked if there were any retail proposals that were strictly for purchase of the building. Dr. Mirrafati Answered that the offers have been from two dentists and a real estate agent; all fell out of escrow. Nielsen Asked if Dr. Mirrafati had additional documentation that the dental office project would be a more compatible use with the surrounding uses than a retail project would be. Dr. Mirrafati Indicated there are more than 10 dental offices in that vicinity. Murray Referred to the lease -based opportunities mentioned; and, asked if those had been explored. Dr. Mirrafati Answered in the affirmative. Murray Asked for confirmation that the reason for not pursuing those was that it was not financially feasible. Dr. Murrifatti Reiterated that the problem with lease -based tenants would be time; spending $450,000 for improvements and having the tenant leave after five years would not be cost effective. Thompson Referred to the doctor's comment earlier that he wished to move in order to be closer to a retail area as compared to his comments that retail does not work well with his cosmetic practice. Dr. Mirrafati Clarified that he wanted to relocate to expand his practice from constructive and cosmetic surgery into more cosmetic and add other services to his practice such as massage, facial, Botox, and similar services; adding spa amenities to his present location is not practical because there is no exposure; a spa component requires retail. Thompson Stated that the spa features mentioned would qualify for the retail component. Dr. Mirrafati Reiterated that adding spa amenities did not meet the City's retail requirements. Kozak Asked if any earlier proposals included demolition of the existing structure and construction of a new building on the site. Minutes — Planning Commission January 8. 2008 — Page 7 Dr. Mirrafati Answered there were two different plans; one was to extend the existing building but the parking requirement would not allow that; a second story was proposed but all medical would have to be on the second floor with retail only on the first floor; adding a second story would require demolishing the existing building. Jigar Shah, Century Stated he has been in the real estate business since 1992; 21 Discovery presented data to the Commissioners and staff relating to the goal for the buyer and seller being the same; this property has been on the market since 2005 and has not yet had an escrow close; there have been many inquiries and potential buyers; only two involved retail use; the site is appropriate for a dental use. Rick Crane, the Stated he was hired by Dr. Mehta to develop the site plan, floor applicant's architect plan, and elevations before the Commission this evening; many modifications would be required to convert the building from one use to another such as accessibility, parking, entry access, restroom renovations, etc.; construction modifications converting the structure to a retail building would involve the bearing wall location and the windows would create a shear wall problem; the cost to convert the building just for those items would be a minimum of $175,000; the tenant improvements for retail would be another $175,000; architect fees, engineering fees, permit fees, etc. would be another $50,000; those are rough estimates for minimal conversion to a retail structure. Nielsen Asked what the cost would be for the current building to a dental practice. Mr. Crane Indicated that the conversion costs would be similar to a conversion to retail; the return on the investment is the issue. Thompson Suggested the site plan does not seem to include any exterior improvements. Mr. Crane Responded that his client did not want to spend $15,000 as the previous owner did; additional improvements are planned but Dr. Mehta would like to have the use approved first. Thompson Stated it was unclear to him how it would still be possible to expand the retail use within the existing building to achieve the City's goals. Mr. Crane Replied that question would need to be answered by Dr. Mehta. Thompson Suggested that it would be feasible and practical to do so whether or not Dr. Mehta requests such improvements. Minutes — Planning Commission January 8, 2008 — Page 8 Mr. Crane Responded that Dr. Mehta is committed to some portion of retail as indicated on the plan and in the staff report. Thompson Stated that he understood that but also wondered about a potential additional use outside that adds more functionality to the building. Mr. Crane Asked if Commissioner Thompson was suggesting enlarging the building. Thompson Answered in the affirmative. Mr. Crane Indicated no such discussion has taken place in that regard; his client may not wish to be put in the position Dr. Mirrafati was. Kozak Suggested that it would be difficult for the Planning Commission to make a decision on a conditional use permit that does not work if the Planning Commission cannot know the applicant's plan. Mr. Crane Stated that it is the applicant's intention is to have exam rooms, small retail, and office space similar to what is shown on the submitted plan. Thompson Asked, if the building were torn down and rebuilt with the same footprint, what the cost might be for a 1,700 square foot building. Mr. Crane Answered the cost would be between $300-400 per square foot. Thompson Suggested that would be between $500-650,000. Mr. Crane Answered in the affirmative. Dr. Ashok Mehta, Indicated that to convert the existing building into a dental office applicant could vary from $60-70 per square foot up to $150 per square foot; he has four other dental offices; the latest one in Diamond Bar cost about $200,000 for 2,700 square feet; orthodontia patients come in every two weeks and always have someone with them; Tutorwhiz does not seem like a retail use to him; a dental use would far exceed the traffic generated by Tutorwhiz; his present location is in a retail complex and the owner seems to feel his practice is contributing to the business; he will work with the City to improve this building where he plans to be for a long time. Puckett Asked if Dr. Mehta currently as an office in Tustin Plaza. Dr. Mehta Answered in the affirmative. Minutes — Planning Commission January 8, 2008 — Page 9 Puckett Asked if Dr. Mehta plans to move that practice to the new location. Dr. Mehta Answered in the affirmative. Elizabeth Martyn, Indicated the January 4, 2008, letter was updated from the McCormick, Kidman & December 11, 2007, letter; the January letter is based upon the Behrens, attorneys research from their public records request to better understand the City's ordinances; this application is an exception to the City's requirements; there is a question whether or not the location fronts onto EI Camino Real; the building was placed on the site in 1972 with an office use oriented away from the street for a reason; even if it isn't fronting in the sense defined in the ordinance, that is a factor that needs to be weighed into this equation; the 2006 ordinance was put in place to provide the exception for a building like this; this building is going to sit vacant and create code enforcement problems; it seems better to accept the exception, look at the conditions, and understand that Dr. Mehta is willing to work with staff to find a solution. Linda Jennings, 350 Encouraged the Planning Commission to consider this proposal South B Street, under the 2006 ordinance that restricted the frontage of Main and EI Camino Real to retail; there is a cost associated with rehabilitating Old Town property; the overriding reason the ordinance was passed was to strengthen the financial condition of Old Town Tustin. Nielsen Asked the City Attorney to clarify whether fronting onto EI Camino Way versus EI Camino Real would require a conditional use permit for a dental clinic. Kendig Stated that a professional or general office not fronting on EI Camino Real in the land use designation as a permitted use would not require a conditional use permit. 8:35 p.m. The Public Hearing closed. Thompson Indicated he appreciated the background history that has been provided by the property owner and applicant; development is a tough business; the orientation requires more discussion; the application appears to be incomplete regarding what will be happening to the exterior of the building, which is very important; the ordinance was not intended to be used to cause an applicant to rebuild but does intend to stimulate an enhancement; there should be more time put into this application; there must be something feasible that can achieve the applicant's goal without the high dollar amounts mentioned above and appropriate to the ordinances the City has in place. Minutes — Planning Commission January 8, 2008 — Page 10 Kozak Noted that he thought he had reached a point of clarity after reading all the documents; given the presentation by the property owner and applicant regarding the history of this site and other considerations such as the frontage and number of dentists already in that area, it seems the Commission does not have the information necessary to approve or deny this application; the codes and policies are present in order to move forward a vision for Old Town and are very important; even though promises are being made to enhance the site, the Planning Commission does not have that information, which is necessary to make a reasoned judgment for the long term regarding the best interests of Old Town, the community, and the property owners. Murray Concurred with Commissioners Thompson and Kozak; he has similar concerns; the Planning Commission analyzes the information and tries to come up with the best overall opinion as to how to more forward; one of the important things to consider is remaining business -friendly, to promote financial prosperity within the confines of the rules and regulations; based upon the merits of this proposal and information available, he would have a difficult time making a decision in the applicant's favor; the exterior elements are very important and have not been provided; it is also important to consider whether or not this approval would be an exception. Puckett Stated that he has never been so conflicted; this is a very tough decision and does not seem to be what City staff wants for Old Town; however, considering what the property owner has gone through trying to make this work, he would be in favor of going along with the applicant to give this proposal a try and see how it works out; chances are a dental office would enhance that area. Nielsen Indicated he also spent more hours on this item than any other item during the past five years and thanked the property owner for standing at the podium for so long; this is a unique property and location; he had never noticed this building in his 21 years in Tustin; the facing orientation of the building at this time is towards the parking lot which is closest to EI Camino Way; the staff report indicated that the building fronts onto both streets; depending upon which one is correct, the use is either permitted or not permitted; the applicant provided plenty of information, but it is clear through the use that the intent of the City to have retail in that establishment was very clear from the 2004 letter to the present; the intent of the ordinance is clear in that the City wants to encourage traffic and retail development in Old Town; when staff says this property has two fronting situations, his view goes toward the orientation of the building which is EI Camino Way; on this item, he would be inclined toward the applicant; if the building Minutes — Planning Commission January 8, 2008 — Page 11 fronts onto EI Camino Way, it should be a permitted use without a conditional use permit; dental clinics do bring in traffic and quasi meet the intent of the ordinance even though the ordinance does not apply in this case. Asked the City Attorney for a decision on how the motion should be presented if the Commission were to approve the use based on the frontage question. Kendig Stated his job was to advise the Commission what is legally required and defer to the Commission to make and decide upon a motion; legally, Commissioner Nielsen would be correct that, if the building fronts onto EI Camino Way, no conditional use permit would be required. Nielsen Indicated that what he was asking was for clarification on a resolution; if a conditional use permit is not necessary, the Commission could vote to decline and proceed to the next step. Kendig Indicated a Commissioner could make a motion to determine the property fronts onto EI Camino Way which could dispose of the issue of the conditional use permit; another Commissioner could make a motion that the application should be continued for more information. Nielsen Suggested that the motion segment the conditional use permit to a design review. Kozak Indicated that his interest was in a design review to accompany the conditional use permit; if the Commission determines that the structure fronts onto EI Camino Way which would dispose of the conditional use permit, the property owner, the City, and the General Plan goals and objections would be in a better position for other opportunities in the future; he would support a motion for a determination of the frontage and recommend that a design review require the applicant to work with City staff for external, structural, or aesthetic improvements to the building and the site which would be brought back for the Planning Commission's consideration. Thompson Asked for clarification regarding the parts of the motion. Nielsen Stated there could be a motion to reclassify that the building fronts onto EI Camino Way and as such the conditional use permit would not be necessary; the other option would be the design review process in order for the Commission to consider the external modifications. Minutes — Planning Commission January 8, 2008 — Page 12 Thompson Indicated he would be in favor of the second option with a timeline that would be acceptable to the applicant; he has concerns regarding EI Camino Plaza which is across the street from this building; half the frontage is EI Camino Real and half is EI Camino Way which would suggest that the shopping center can now become half office space and half retail; the bakery that just completed improvements and invested significantly at the corner of Sixth and EI Camino Real does not front onto EI Camino Real; the frontage question is complex. Murray Agreed that this is a complicated issue; Commissioner Thompson's comment regarding the first part of the motion certainly requires consideration; it is important that more research be completed and the Planning Commission not jump to any conclusions regarding the fronting issue. Nielsen Concurred that Commissioner Thompson's comments opened questions regarding setting a precedent that the Commission needs to consider; there are also questions regarding the vague wording of the ordinance. Asked the City Attorney if this item could be continued to another meeting in order for more fact-finding to occur. Kendig Answered in the affirmative. Nielsen Asked if the Commissioners had further comments. Murray Suggested a continuance might provide the opportunity to fill this loophole in order to avoid this situation in the future. Puckett Asked if issue of the address needs further consideration. Nielsen Stated it was necessary to have a consensus whether or not to continue the item for fact-finding. Commissioners Answered in the affirmative. Nielsen Noted that more information could be provided regarding the fronting situation, what precedent might be set for the rest of Old Town, and the applicant's intent for the property. Kozak Suggested that additional information from the applicant could allow consideration of a recommendation or alternative recommendations based on the fact-finding. Ms. Marlyn Returned to the podium to state there is some urgency in closing escrow which has been open since September; if the Planning Minutes — Planning Commission January 8, 2008 — Page 13 Commission could continue the item to the next meeting, that would be appreciated. Nielsen Noted the Planning Commission is concerned with setting a precedent that could perhaps be costly to other merchants and to the City; that must be taken into advisement. It was moved by Murray, seconded by Thompson, to continue the item to the next Planning Commission meeting, January 22, 2008. Motion carried 5-0. Continued to the 3. CONDITIONAL USE PERMIT 07-014 AND DESIGN January 22, 2008, REVIEW 07-015, A REQUEST TO CONSTRUCT A 7,650 Planning Commission SQUARE FOOT MIXED-USE DEVELOPMENT (OFFICE meeting AND RESIDENTIAL). THIS PROJECT IS LOCATED AT 170 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) AND CULTURAL RESOURCES (CR) OVERLAY ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4080, recommending that the City Council approve Design Review 07-015, Conditional Use Permit 07-014, and a waiver of in -lieu parking fees to authorize the construction of a mixed-use development. Director Noted that the applicant requested that the item be continued to the next meeting due to correspondence received today from an adjacent property owner. Nielsen Invited anyone wishing to speak come forward to provide testimony. No one came forward. It was moved by Thompson, seconded by Murray, to continue the item to the next Planning Commission meeting. Motion carried 5- 0. REGULAR BUSINESS: Received and filed 4. SIGN CODE UPDATE Since adoption of the new Sign Code in April 2007, the City's education and enforcement efforts have been able to bring most signs into compliance. Code Enforcement staff has seen about an 80 percent decrease in citizen complaints regarding real estate signs. Minutes — Planning Commission January 8, 2008 — Page 14 RECOMMENDATION: That the Planning Commission receive and file this report. Steen Presented the staff report. Director Explained the reasons for the update and how the enforcement has been working. It was moved by Puckett, seconded by Thompson, to receive and file the report. Motion carried 5-0. Received and filed 5. 2007 CERTIFIED LOCAL GOVERNMENT ANNUAL REPORT The Annual Report summarizes the City's historic preservation efforts and describes how the City met all of the minimum requirements of the Certified Local Government program during the 2006/2007 report period. RECOMMENDATION: That the Planning Commission receive and file this report. Reekstin Explained the reasons for providing the report to the State. Murray Asked if the report is updated annually. Reekstin Answered in the affirmative. Nielsen Asked if there had been any response by the State. Reekstin Indicated that the State does not typically respond. Thompson Noted that his years spent on the Historic Resource Committee were not included. Reekstin Stated that staff can forward that information as an amendment; that information was included on Commissioner Thompson's resume. It was moved by Kozak, seconded by Thompson, to receive and file the report. Motion carried 5-0. STAFF CONCERNS 6. REPORT OF ACTIONS TAKEN AT THE JANUARY 2, 2008, CITY COUNCIL MEETING. Minutes — Planning Commission January 8, 2008 — Page 15 Director reported The City Council considered the General Plan Amendment related to the reorganization of the property in Pacific Center East that was brought before the Planning Commission in December related to the Caltrans parcel sandwiched between the City of Tustin and the City of Santa Ana; that Amendment will be forwarded to LAFCO. The City Council considered the Zone Change related to 15571 Red Hill where Panattoni is proposing to locate its operations within our City. The City Council considered the appeal of the Planning Commission's decision to amend the conditional use permit related to the Orange County Rescue Mission's proposed medical and dental clinic; that decision was approved to allow the use; the Council amended one of the conditions of approval to allow the City to consider the overall conditional use permit related to the original entitlement and amended conditional use permits regarding any potential traffic or parking impacts related to the operation. COMMISSION CONCERNS Thompson Indicated that this Friday, January 11, marks the 22nd wedding anniversary of he and his wife, Cherie, and wished her a happy anniversary. Kozak Thanked the Deputy City Attorney for the Brown Act workshop. Thanked Linda Jennings for the Carol Jordan book. Thanked staff for their hard work on the first public hearing item this evening, a very challenging item; the process is working and it looks as though things will move in the right direction. Mentioned the location on First Street that does not seem to be within the Tustin Sign Ordinance; and, asked that staff take another look at that situation. Murray Wished everyone a Happy New Year. Thanked Linda Jennings for the book. Thanked staff for their hard work. Noted that traffic at The District has improved; and, asked when the exterior improvements affecting The District (Barranca and Jamboree) are expected to be completed. Minutes — Planning Commission January 8, 2008 — Page 16 Director Indicated that staff will check with Public Works and bring the information back to the Planning Commission. Murray Indicated that Vestar's efforts in educating the public as to other exits and entrances have been very helpful. Asked if the fish restaurant is still planned at The District. Director Stated that the Blue Water Grill is still proposed. Puckett Thanked Carol Jordan and congratulated her on the book, a tremendous history of Tustin. Thanked Linda Jennings for presenting copies of the Jordan book to the Commissioners. Congratulated his son on his 39th birthday. Noted the Mayor's Inaugural is scheduled for Thursday, February 7, at the Tustin Ranch Golf Club; this is wonderful event and should be attended by all. Nielsen Wished everyone Happy New year. Thanked staff for their hard work on the first public hearing this evening; this was a lot of work but things are moving in the right direction. Thanked Linda Jennings and Carol Jordan for The Illustrated History of Tustin. Requested that the meeting be adjourned in memory of George Stewart, a former Tustin News reporter. 9:30 p.m. ADJOURNMENT In Memory of George Stewart The next regular meeting of the Plan 'ng Commission is scheduled for Tuesday, Ja uary 22, 2008 7:00 p.m. in the City Council Chamber at enteUol W Charles E. Puckett, Chairperson Pro Tem E abet A. Binsack Planning Commission Secretary Minutes — Planning Commission January 8, 2008 — Page 17 MINUTES REGULAR MEETING F TUSTIN PLANNING COMMISSION JANUARY 22, 2008 7:04 p.m. CALL TO ORDER Given PLEDGE OF ALLEGIANCE ROLL CALL Present: Chair Pro Tem Puckett Commissioners Kozak, Murray, Thompson Absent: Chair Nielsen Staff present Elizabeth Binsack, Community Development Director David Kendig, Deputy City Attorney Dana Ogdon, Assistant Community Development Director Terry Lutz, Principal Engineer Justina Willkom, Senior Planner Scott Reekstin, Senior Planner Alice Tieu, Associate Planner Reina Kapadia, Assistant Planner Eloise Harris, Recording Secretary None PUBLIC CONCERNS Approved CONSENT CALENDAR 1. APPROVAL OF MINUTES — JANUARY 8, 2008, PLANNING COMMISSION MEETING. 2. TUSTIN COMMENDATION NOMINATION — 335 SOUTH C STREET. It was moved by Murray, seconded by Kozak, to approve the Consent Calendar. Motion carried 4-0. Puckett Mentioned what an asset to Tustin the McCharles House has been; and, thanked Brett Ferdig for bringing forward the nomination as a commended property in Old Town. PUBLIC HEARINGS Adopted Resolution 3. CONDITIONAL USE PERMIT 07-022 REQUESTING No. 4081 AUTHORIZATION TO OPERATE A WOMEN'S WEIGHT LOSS AND FITNESS HEALTH CLUB WITHIN AN Minutes — Planning Commission 1-22-08 — Page 1 EXISTING SHOPPING CENTER TENANT SUITE. THIS PROJECT IS LOCATED AT 17251 SEVENTEENTH STREET, SUITE B, IN THE COMMERCIAL GENERAL (C -G) ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4081 approving Conditional Use Permit 07-022. 7:06 p.m. The Public Hearing opened. Kapadia Presented the staff report Thompson Asked for clarification regarding the parking requirements and how the ratio is justified if the site is full to capacity. Kapadia Indicated that the purpose of conditioning a project based on the existing parking is to avoid such a problem; the use restriction is based on the available parking for a maximum of instructors and clients as listed. Thompson Suggested that the ratio of parking for 30 clients and three instructors would not allow for 33 cars at the site. Director Noted that the center is parked at a retail ratio; the proposed use is more of an assembly -type occupancy which would be calculated based on the number of instructors and clients, i.e. one space per three clients, and on the square footage of the tenant suite. Kozak Referred to the two other similar uses mentioned in the staff report that were approved in 2002 and 2003; and, asked if similar occupancy standards were used and how those are working. Director Replied in the affirmative; and, added that similar uses would be karate studios, churches, etc. which generally work well. Murray Questioned whether there should be something included to allow for modifications if necessary. Director Responded that Condition 2.6 allows staff to work administratively with the applicant to modify the hours of operation or reduce the client enrollment to offset any impacts that might occur at the center. Puckett Asked if the applicant wished to speak. Minutes — Planning Commission 1-22-08 — Page 2 Ms. Selders Answered in the negative. Puckett Asked if there were other speakers. None came forward. 7:15 p.m. The Public Hearing closed. Commission It was the consensus of the Planning Commission that the use would be appropriate; the Commissioners welcomed the applicant to Tustin. It was moved by Thompson, seconded by Kozak, to adopt Resolution No. 4081. Motion carried 4-0. Adopted Resolution 4. CONTINUED PUBLIC HEARING FOR CONDITIONAL No. 4079, denying USE PERMIT 07-020, A REQUEST TO ESTABLISH A the project without DENTAL OFFICE WITHIN AN EXISTING BUILDING prejudice FRONTING ONTO EL CAMINO REAL. THIS PROJECT IS LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4079 denying Conditional Use Permit CUP 07-020. 7:16 p.m. The Public Hearing opened. Kapadia Presented the staff report. Thompson Requested the dimensions of the frontages for this lot; and, asked if the side or front was longest as pertaining to the definition provided in the staff report. Kapadia Indicated that staff referred to the Assessor's Parcel Map and the Title Report submitted and determined that the frontage along EI Camino Real was approximately 20 feet shorter than the frontage along El Camino Way. Thompson Suggested that, based upon the Tustin City Code definition, the longer frontage would be at the side. Kapadia Answered in the affirmative. Thompson Indicated the staff report referred to the access being off of EI Camino Real; the applicant's letter stated there is a driveway off Minutes — Planning Commission 1-22-08 — Page 3 of EI Camino Way; and, asked if there is any other way to get on to EI Camino Way than using EI Camino Real. Kapadia Stated the property has two access driveways, one on EI Camino Real and the other on EI Camino Way. Thompson Asked how someone would get onto EI Camino Way without using EI Camino Real. Director Answered that access is from EI Camino Real to get . to EI Camino Way. Thompson Asked if there were relevant cost comparisons with other properties being developed, such as the reuse of the Tustin Garage from a garage to a restaurant. Willkom Stated that the plans submitted for renovations to Beach Pit Barbecue indicated the cost would be approximately $470,000. Thompson Asked if it is customary on these types of applications to postpone the design review component and obtain approval for a conditional use permit or more appropriate that such applications always be approved together. Director Stated that the design review and conditional use permit are typically considered concurrently; however, at the last Planning Commission meeting the Commission was considering the use and a subsequent design review application after. Puckett Asked if the applicant wished to come forward. Kendig Indicated a letter was received today from the applicant. Puckett Noted that the review of the letter was the reason for the delay in starting the meeting. Dr. Sid Mirrafati, the Presented photographs of his building showing the two frontages property owner referred to by the City staff; the vehicle access to his building is from EI Camino Way with an exit onto EI Camino Real; the property owner also presented photographs supporting his point of view relating to the City's fronting definition, picturing various businesses that have an EI Camino Real address but whose businesses have doors opening onto parking lots; when you stand at the front entrance to his building, all you see is EI Camino Way. Minutes — Planning Commission 1-22-08 — Page 4 Thompson Mentioned the discussion at the previous Planning Commission meeting regarding the August 2004 letter; and, asked the property owner again exactly when he purchased the property. Dr. Mirrafati Stated he did not recall the exact date but thought it was August 24. Thompson Asked if the purchase was after the letter the City sent to him advising him of the requirements for retail. Dr. Mirrafati Reiterated that he received the letter after he purchased the property. Thompson Noted that the letter from the City was dated August 2, 2004. Dr. Mirrafati Stated that he must have closed it before that; when he bought the building, he went to the City and asked them if a medical use would be acceptable at that location; he was told that it would be as long as the parking requirements were met; escrow closed; he submitted his plans and was told medical would not be allowed. Thompson Indicated that he was still confused; the letter enclosed in the packet was dated August 2. Dr. Mirrafati Stated that the person from whom he purchased the property leased back for six months; the actual recordation date was August 20, 2004, but the closing of escrow was before that. Thompson Asked for clarification regarding the August 20`h date. Dr. Mirrafati Answered that was the date of recordation. Thompson Suggested that typically escrow closes and documents are recorded the same day. Dr. Mirrafati Insisted that the City's letter was written after the close of the escrow. Thompson Suggested that some of the shopping centers Dr. Mirrafati showed in his photographs have access to streets other than EI Camino Real; Jamestown Village is off of C Street. Dr. Mirrafati Indicated that C Street is a residential street, and the businesses front onto the parking lot. Minutes — Planning Commission 1-22-08 — Page 5 Thompson Stated his remark was in reference to Dr. Mirrafati's statement regarding only access off of EI Camino Real. Dr. Mirrafati Responded that reference was to Quinn's Restaurant which has only EI Camino Real access. Thompson Suggested that Quinn's can also be accessed from Main Street. Dr. Mehta Reiterated his desire to relocate to this property and his hope applicant that the Planning Commission would act appropriately and approve this application. 7:51 p.m. The Public Hearing closed. Thompson Stated the building address has always been EI Camino Real; the only way to access the building is from EI Camino Real; the City provided a letter dated August 2 which was very clear regarding the requirements for retail and architecture; the property closed escrow after that notification; a dentist in Old Town would be welcome if there were a proposal from the applicant that would include some form of retail within that building consistent with the August notification and the guidelines; given these requirements, he would be conflicted in supporting approval of this conditional use permit. Kozak Echoed Commissioner Thompson's comments and concerns which he shares; he understands the difficulty in developing this site; he would like to see a proposal that would be consistent with the City Code and General Plan; from a public policy standpoint the Planning Commission must apply the City Code for the larger public purpose; the map that was shared in the PowerPoint showed the different overlays and made it clear whether the door faces one direction or the other; whether the longest side is one side of the property or the other, this property and this building are part of the EI Camino Real retail corridor that the City and the Commission is trying to achieve; given these issues, he cannot support this conditional use permit; if the project is denied, he would suggest it be denied without prejudice and would welcome a proposal for this piece of property consistent with developing a street -level, walkable, retail corridor along EI Camino Real. Murray Thanked the applicant, property owner, and staff; this has been an arduous task; he is in favor of promoting every business possible within this community; the Planning Commission would be negligent if they were to overlook the information that has been provided; based upon the staffs research and the other Minutes — Planning Commission 1-22-08 — Page 6 Commissioners' comments, recommendation for denial. he would agree with staffs Puckett Noted that this has been an extremely difficult project with which he has struggled more than any other project; given staffs recommendation, he would not be able to support the proposal; it is important not to set a precedent to change the frontage of the Old Town businesses. It was moved by Thompson, seconded by Murray, to approve Resolution No. 4079 denying the project. Motion carried 4-0. Director Asked if the Commission wished to deny the proposal without prejudice. Commission Answered in the affirmative. Director Stated that this is an appealable item. Continued to the 5. CONTINUED PUBLIC HEARING FOR CONDITIONAL February 26, 2008, USE PERMIT 07-014 AND DESIGN REVIEW 07-015, A Planning Commission REQUEST TO CONSTRUCT A 7,650 SQUARE FOOT meeting MIXED-USE DEVELOPMENT (OFFICE AND RESIDENTIAL). THIS PROJECT IS LOCATED AT 170 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2), WITH COMBINING PARKING DISTRICT (P) AND CULTURAL RESOURCES (CR) OVERLAY ZONING DISTRICT. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4080, recommending that the City Council approve Design Review 07-015, Conditional Use Permit 07-014, and a waiver of in -lieu parking fees to authorize the construction of a mixed-use development. 8:00 p.m. The Public Hearing opened. Tieu Presented the staff report. Director Stated that the applicant's architect wished to address some of the concerns with the architecture and would offer a short presentation. Paula Meyer, Indicated that she formerly practiced law across the street from applicant City Hall and has always wanted to return to Old Town Tustin to Minutes — Planning Commission 1-22-08 — Page 7 live and work; she plans to practice in Tustin for the next 20 years; she understands the Old Town requirements and believes that Susan Secoy is the architect who can make it happen; her building in Old Town Orange fits perfectly in that location; this is their intention for the proposed structure; staff made good suggestions which have been incorporated into the design. Susan Secoy, Presented the architecture through a PowerPoint show and architect explained the compatibility of the project, how it conforms to the design standards, and the design treatments and materials that will be used. Murray Asked if the architect has designed other projects similar to this one regarding historic issues. Ms. Secoy Answered that she has designed at least a dozen structures in Old Towne Orange, a lot of them residential in nature, including a career project that was originally a tire retreading plant and is now her office, her apartment, and artists' studios and office space. Thompson Asked for clarification regarding the parking spaces and the fee program that was summarized in the report, specifically where the five spaces that are not provided will come from. Director Explained that this is an in -lieu program cited in the City's Zoning Code; the applicant has the ability to pay into a fee program so that the City would be able to use those dollars for future parking; the spaces do not exist today. Thompson Suggested the inventory does not need to be made up somewhere else. Director Responded in the affirmative. Thompson Asked for an verification that the water quality management fee is a deposit of $2700. Director Answered in the affirmative. Thompson Referred to Condition 6.2 stating the property owner would waive all right of contest of fee programs; and, asked what programs would be involved. Director Stated the intent was related to a parking assessment district. Minutes — Planning Commission 1-22-08 — Page 8 Thompson Asked for an explanation of the guidelines for retail on the ground floor and how this project fits within those guidelines. Director Responded that the guidelines were explained in the January 8, 2008, staff report to the Planning Commission; this property is within the Cultural Resources Overlay District; there were avenues that could have been explored for this property because it is a mixed-use proposal; the applicant could have requested a planned community such as Prospect Village or used the City Code section related to unlisted uses; since the property is such a small in -fill development, the applicant chose to use the provision that states if there are no standards the City Council establishes the standards for development; the Planning Commission is the recommending body to the City Council related to the design review and the conditional use permit. Thompson Questioned whether it would be flexible within the guidelines not to have retail on the ground floor and only provide parking as shown in this application. Kendig Specified that would be within the Cultural Resources Overlay distinction. 1 Thompson Asked if there had been any input from the property owner to the south regarding the massing. Director Replied that it was her understanding the property owner attempted to meet with that property owner; perhaps the question should be directed to the applicant. Ms. Meyer Indicated she had tried to meet with the property owner to the south but was unable to do so; she wants to be very sensitive to that property owner and is considering a water feature there that will be good for both buildings. Thompson Referred to his days on the Cultural Resources Advisory Committee and the differences of opinion regarding the architecture; and, asked if there has been any third party dialogue regarding this architecture. Director Responded that there have been no peer reviews in this case. Puckett Invited members of the public to the lectern. Brad Fisher Stated he is one of the owners of the property immediately north of the site, 150 EI Camino Real; the applicant did not contact him regarding this project; he reached out to the applicant; a notice Minutes — Planning Commission 1-22-08 — Page 9 was received from staff; staff was informed of his opposition to the project; at the meeting with the applicant, a hierarchy of changes was outlined; the architect and applicant committed to getting back to him before this hearing but did not. Explained that he respects the applicant's right to develop the property and is not suggesting this should stay a vacant lot; any development, however, must be appropriate to the Tustin City Code; this property fails because it is too large a project for a 7,000 square foot lot; it is 7,500 square feet of improvements over parking, requires a zero lot line, and is built to all the limits; he disagrees with the suggestion that the building would appear to transition north to south from a three level building to a two story building; his building has two levels of office over parking; the applicant has two levels over parking; the buildings would be essentially the same; the staff report incorrectly calculates the parking required; the office would require 16 spots, not 14; the addition of retail would require 18 spots; the property would be seven spots deficient; parking is significant because it acts as a natural limit to the size of a development; this project is 38 percent short of its required parking; it is hard to understand why staff is recommending the in -lieu parking fees be waived; the inclusion of a swimming pool adjacent to offices would be inappropriate; retail is more consistent with the EI Camino retail corridor, not parking with an office upstairs; his property has exterior corridors on the north and south faces of the building and the tenant spaces have windows which overlook the corridors; the rear 20 percent of his building abuts another zero lot line property; there is no problem leasing that space because the entry is on the back facing the park and gets light two-thirds of the day from the west; if this building is allowed as designed, his building will have a prison wall four or five feet from the face of his corridors which will make them very dark; the Realtor who handles his leasing estimates this would impact his rents for a third of the building; a letter was presented with this information. Stated that he suggested to the applicant that she flip the building and put the zero lot line on the other side which would create more light for his building from the south; the development is too large for the lot; an office development of 3,000 square feet with 2,400 square feet of residential on one floor over parking would be more appropriate and would require only 12 parking spaces; this would achieve a better visual transition from the two story to the one story and would not impact his building's third floor in terms of light and would minimize the impact on the second floor; the articulated north elevation showing the landscaping looks very nice, but there is nowhere for that Minutes — Planning Commission 1-22-08 — Page 10 landscaping to go; photographs were submitted showing the tight space issues. Kozak Asked if the trees shown in the photographs were on Mr. Fisher's property. Mr. Fisher Answered in the affirmative; and, added that the trees need to be replaced or removed because of the problems the leaves cause and the difficulty in keeping the trees trimmed, a situation which could be negotiated with the applicant. Ms. Meyer Indicated a willingness to work with Mr. Fisher regarding the trees. Markus Brown, Stated he was speaking on behalf of the Tustin Preservation resident of Old Town Conservancy; the Conservancy is in favor of in -fill development in Old Town; a vacant lot is a detractor and Old Town would benefit from some sort of project; the architect demonstrated an incredible amount of talent and skill in her PowerPoint presentation; the Mustard Cafe is a beautiful building that is appropriate for the City of Orange; the proposed Tustin building is beautiful but is not appropriate for the historic district; adding brick to the outside does not make it historically appropriate; there is also a ground floor concern; retail would be more appropriate than parking; the Acorn Naturalists building is a model for what can be done in Old Town Tustin. Leonard Nettles, Stated he owns the small bungalow at 180 EI Camino Real south 180 EI Camino Real of the proposed building; the bungalow was built in 1913 and is one of the original buildings in Tustin; the building was restored with period materials; the building is 1,700 square feet and was a teahouse; now it is an office for a realty corporation he owns; his objection to the proposed structure is its size; he submitted photos of the lot where the building is proposed which is about 50 feet wide by 150 feet deep. Puckett Asked for confirmation that the building is now being used as his office. Mr. Nettles Answered in the affirmative; and, added that his major concerns are having the large building dwarf his structure, block the horizontal view, and render the patio useless; the patio was originally designed for the tea house to allow people to sit outside and enjoy the street front; the value of the structure is its being declared an historical building that would allow the use of the State historical building codes to meet all the commercial codes when he upgraded it from a residence to commercial; the Minutes — Planning Commission 1-22-08 — Page 11 tea house is in limbo right now, but he hopes to reopen it when he retires in four years; the proposed large structure will diminish his property value and is not conducive to the view from his property; the design does not meet the Cultural Resources Overlay District which was intended to preserve Old Town; the project should be redesigned to approximately 2,000 square feet to fit the land size and to include ground floor retail. Linda Jennings Stated she is a resident of Old Town, 350 South B Street, and the President of the Tustin Preservation Conservancy; the Conservancy sent a letter to the Planning Commission which included the following points: The modern design of the proposed building does not fit into the historical context of the Cultural Resource Overlay District; Tustin was not blessed with a Frank Lloyd Wright building to emulate; Old Town buildings are primarily Craftsman bungalows, California bungalows, and a few Victorians; the predominant material on these buildings is wood siding. Other recently constructed buildings include the Acorn Naturalists building, the Armstrong Nursery, and Helms, all of which went through rigorous design review to reach a design that worked within the historic urban fabric of Old Town; the proposed building does not fit into that fabric. • The use of a small amount of brick on the front fagade does not substitute for historic sensitivity. It took many weeks for the Acorn Naturalists building approval, redesigning and coming back to the Planning Commission to create the building that exists today; it was worth it; the building has won Outstanding New Building in the Conservancy Preservation awards. The claim that the proposed building is responding to neighborhood context is flawed; the historical building to the south has been completely ignored and would be overwhelmed by the style and scale of this proposal; the 1960s building to the north is a non-contributing building and was built prior to the existence of the Overlay District; this is exactly the style and the scale of building that was to be prevented along EI Camino by the creation of the Overlay District. The project has no retail element, contrary to the 2006 ordinance passed by City Council, on all ground floors. Minutes — Planning Commission 1-22-08 — Page 12 Ms. Jennings, The Conservancy supports the idea of a mixed-use building in continued Old Town; mixed use is based on an historic pattern of development; the design, however, should exhibit some historic influence. Based on all of the above points, the Tustin Preservation Conservancy opposes granting the design review and conditional use permit. Kay Nettles, Stated she had circulated a petition which contained 17 180 EI Camino Real signatures from neighbors objecting to this project; and, presented the petition to the Planning Commission. Puckett Asked within what distance of the proposed structure the petitioners are located. Ms. Nettles Responded that all are within one block of the site; and, indicated that the applicant and architect did stop to talk with her when she was in year-end close and she had no time available; no further contact was made by the applicant to make an appointment. Murray Asked if any of the other individuals who signed the petition had talked with the applicant. Ms. Nettles Answered that she only knew of the gentleman from 150 EI Camino Real speaking with the applicant; the other neighbors have not had a chance to do so. Martin Rigby, one of Stated it had been six years since he stood before the Planning the owners and Commission; it took at least a year of rigorous back and forth to Director of Acorn come to an agreement with the City regarding the design of the Naturalists building and the retail requirement for first -floor retail; the building has won many national and local awards; business has increased every year. Complimented Secoy Architects on the beautiful work on the Mustard Cafe in Old Towne Orange, pointing out that the first floor is retail; and, suggested the proposed project would probably not be approved in the Old Towne Circle area of Orange. Pointed out that ground floor parking is not conducive to pedestrian -friendly environments in Old Town Tustin. Indicated that he was told that not a single square foot would be approved without the requirement of ground floor retail in that section of EI Camino Real. Minutes — Planning Commission 1-22-08 — Page 13 Mr. Rigby continued Suggested that on -street parking spaces would be 50 percent deficient along EI Camino Real if this project were approved. Thompson Asked for clarification of the parking arrangement for Acorn Naturalists. Mr. Rigby Replied that Acorn Naturalists was two or three parking spaces short. Thompson Asked if there was a place designated or calculated as the spaces on the street. Mr. Rigby Indicated their situation was different in that they added three spots due to taking out a driveway. 9:13 p.m. The Public Hearing closed. Thompson Thanked staff for the presentations and those who provided public input; good detail was presented; there are elements he likes about the project—the mixed use, the materials; he is, however, concerned about the loss of parking and believes more information is necessary in that regard; the proposal seems to be more complementary to the modern architecture than to the historic; as a resident, he was against the Prospect Village development, but the architecture is amazing; he would like to see more of that kind of historical complement; perhaps that is something that could be worked out; it is difficult to say no to three stories when a neighbor already has three stories; at the same time, the small tea house building on the other side would be negatively impacted; lack of retail was addressed in the previous proposal this evening; he cannot support the project; the project should be continued in order to address the items that have been presented. Kozak Thanked the applicant and architect; he supports mixed use and also strongly supports the requirement for first floor retail; the applicant's desire to live and work in Tustin in admirable; the hope is to reach that goal; however, this may be a wonderful building, but it does not fit into the historic architectural style of Old Town Tustin; the retail use is very important; the parking issues need to be addressed; the intensification of use on this site is a concern; the size is overwhelming, particularly to the former tea house building; the setbacks and articulation should be reviewed to make this project work; all the elements of the Mustard Cafe would be appropriate for Old Town Tustin. Minutes — Planning Commission 1-22-08 — Page 14 Murray Thanked the applicant and architect for the proposal; it has merit but he shares the concerns of his fellow Commissioners; promoting the compatibility of mixed uses is very important in Old Town and needs to be compatible with the existing surroundings, be aesthetically pleasing, and fit well with the neighbors; there needs to be a balance of historical integrity in that area compatible with the general theme of what Old Town is all about; historical preservation, parking, and the massing are issues that need to be addressed; he would like the applicant to come back with additional thoughts and design modifications, but he cannot support the project as submitted. Puckett Added his concern that the project is too big for the area; it is a beautiful building but is inappropriate for this location; the Rigbys went through a long process to get their building approved, but it has turned out for the better and is a beautiful addition to Old Town Tustin; it should be possible to reach a similar compromise in this case; retail use needs some working out; further study is necessary to see how it may be changed to fit the neighborhood. It was moved by Thompson, seconded by Murray, to continue the item and have staff and the applicant reconsider the retail component, the parking inventory, the architecture, and the massing. Motion carried 4-0. Director Stated that, since this was a noticed Public Hearing, the Commission should continue this item to a date certain. Ms. Meyer Indicated she would like it continued to the next meeting. Director Suggested that would not allow enough time; the second meeting in February would be preferable to staff. Commission Amended the motion to include the continuance to February 26, 2008. None REGULAR BUSINESS STAFF CONCERNS 6. REPORT OF ACTIONS TAKEN AT THE JANUARY 15, 2008, CITY COUNCIL MEETING. Director Indicated there were no specific items to report from the City Council meeting. Minutes — Planning Commission 1-22-08 — Page 15 Director continued Noted that staff is planning future workshops relating to the Building Permit and Business License procedures and will be checking with the Commissioners to determine when those should be scheduled. COMMISSION CONCERNS Thompson Requested that at a future meeting the Commission could get an overview of the residential architectural guidelines in Old Town Tustin to assist in understanding what type of action or request of the City Council could be made for developing the commercial guidelines in a similar venue. Director Indicated that staff could report back on that issue. Thompson Indicated he would be attending the Mayor's Inaugural Dinner and looks forward to that event at the Tustin Golf Course and to seeing everyone there. Kozak Stated that he, too, would like to make a similar request to Commissioner Thompson's for staff to bring information. that would assist the Commission in making a request or recommendation to the City Council so that the issue could be considered in the budget process. Noted he is looking forward to the Groundbreaking for the new Tustin Library on February 12, 2008. Thanked the Recording Secretary for providing the Commission with the City 2008 calendar. Murray Commended staff for their continued hard work; the amount of information, research, and documentation that is provided has been very helpful in the Commission's decisions. Noted that Commissioner Nielsen was being missed this evening and suggested he take a look at the meeting upon his return. Added that he is also looking forward to the Library Ground- breaking and the Mayor's Inaugural Dinner. Puckett Assured everyone that the Mayor's Inaugural Dinner will be quite an event; those who were there last year may remember the thorough roasting of Mayor Bone; there will be some repercussions from that and Mayor Amante will receive his due; the menu is always great, the entertainment is great—the Minutes — Planning Commission 1-22-08 — Page 16 orchestra from Beckman High School; the event is sponsored by the Tustin Community Foundation. Thanked Linda Jennings again for the Carol Jordan book that was presented to each of the Planning Commissioners at the last meeting; he and his wife are enjoying the book very much and intend to purchase copies as gifts. Noted there was a ribbon -cutting last week for The Cravery in The District; he was not able to attend, but he did have lunch there on Saturday; the concept came from South Africa and he also observed it when he was in Australia—pot pies; this is a great restaurant; he encouraged everyone to visit. Stated the meeting should be adjourned in the memory of Dr. Martin Luther King, whose birthday was observed yesterday. Murray Added that he would like to also recognize George Stewart, a very important member of the Tustin community. In Memory Of Dr. Martin Luther King 9:30 p.m. ADJOURNMENT The next regular meeting of the Planning Commission is scheduled for Tuesday, February 12, 2008, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way\ Cha ��'4 Elizabeth A. Binsack Planning Commission Secretary Minutes — Planning Commission 1-22-08 — Page 17 Exhibit E Planning Commission Resolution No. 4079 RESOLUTION NO. 4079 A RESOLUTION OF THE PLANNING COMMISSION DENYING WITHOUT PREJUDICE CONDITIONAL USE PERMIT 07-020 TO AUTHORIZE A DENTAL OFFICE LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2) ZONE AND FRONTING ONTO EL CAMINO REAL The Planning Commission of the City of Tustin does hereby resolve as follows: A. That a proper application, Conditional Use Permit 07-020, was filed by Dr. Ashok Mehta, requesting authorization to establish a dental office in an existing stand-alone building at 740 EI Camino Real. That the property fronts onto EI Camino Real, is located in the Central Commercial (C-2) zoning district, and is designated as Old Town Commercial by the General Plan Land Use Policy Map; B. That a public meeting was duly called, noticed, and held for said application on December 11, 2007, by the Planning Commission; C. That at the December 11, 2007, public hearing, the applicant's legal counsel submitted correspondence and a Public Records Act request to the Planning Commission. D. That the Planning Commission continued the project to the January 8, 2008, meeting to allow the Planning Commission and City staff time to review and respond to correspondence and the Public Records Act request. E. That at the January 8, 2008, public hearing, the Planning Commission continued the project to the January 22, 2008 meeting, in order to conduct further research as to whether a conditional use permit was required; F. That pursuant to Tustin City Code Section 9233c(y), professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to certain use criteria; G. That Tustin City Code does not define "fronting" and that the Planning Commission has considered available definitions contained in the Tustin City Code and Webster's Dictionary to determine the meaning of "fronting" as follows: "Lot Front" is defined as "the narrowest dimension of a lot fronting on a street," which in the case of the subject property, is the portion of the lot fronting on EI Camino Real. "'Side and Front of Corner Lots' Resolution No. 4079 CUP 07-020 Page 2 means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces." Webster's Dictionary defines "frontage" as "Land adjacent to a building, street." In the case of the subject property, the land is adjacent to both El Camino Real and El Camino Way, thus it is fronting upon both streets. H. That the Planning Commission determines that, like any property with any portion of the lot fronting on to EI Camino Real or Main Street and located within the Old Town Commercial General Plan land use designation, the subject property is subject to Tustin City Code Section 9233c(y). That the subject property fronts on EI Camino Real, therefore a conditional use permit is required to establish a dental office at the subject location. J. That the Planning Commission has considered the matter and determined that the proposed project does not meet finding requirements needed to support the conditional use permit, in that: 1. Pursuant to Tustin City Code Section 9233c(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233c(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: Resolution No. 4079 CUP 07-020 Page 3 a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building was occupied as an office since the building was relocated to and first occupied in Tustin. The last business license issued for this property prior to the establishment of a tutoring facility was for EI Camino Chiropractic whose business license expired in 1995. Thus, the office use has lapsed for more than twelve (12) consecutive months and pursuant to Tustin City Code Section 9273 (Non -conforming Structures and Uses) any subsequent use shall comply with current City Code. The intent of a non -conforming code in the City's Zoning Code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulations until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. To further the non -conformity of a use and/or building does not meet the intent or purpose of a non -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non- conforming use contrary to the standards set forth in the Zoning Code and goals and objectives of the General Plan. On October 9, 2006, the Zoning Administrator approved CUP 06- 014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building and further invalidating the continuance of the property as an office use. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of EI Camino Real and EI Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. Evidence presented by the applicant about the Resolution No. 4079 CUP 07-020 Page 4 cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish new office uses. There is inadequate evidence that modifying the building to accommodate retail uses is impractical. c. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on EI Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. Also, evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish proposed new office uses. There is inadequate evidence that modifying the building to accommodate retail establishments is economically infeasible or impractical. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to EI Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district is to encourage pedestrian activity in the retail area. Although the applicant has indicated that Resolution No. 4079 CUP 07-020 Page 5 the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at a tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. 3. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects (Policies 1.2 and 10.6). Encourage the elimination of non -conforming uses and buildings (Policy 4.4). The project proposal is for a dental office to fully occupy a single -story building located in an area identified for retail commercial uses. The Old Town neighborhood has been recognized by the City Council and Chamber of Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. Tustin City Code Amendment 06-004 was adopted to address this deficiency and encourage much-needed retail uses in the heart of Old Town Tustin. In addition, grating the CUP for an office use would further the non -conforming status of the property, in direct conflict with General Plan Policy 4.4. The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-1), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or EI Camino Real and located outside of the Old Town Commercial General Plan land use designation. K. That the project is categorically exempt pursuant to Section 15270 (Projects Which are Disapproved) of the California Code of Regulations (Guidelines for the California Environmental Quality Act); Resolution No. 4079 CUP 07-020 Page 6 The Planning Commission hereby denies without prejudice Conditional Use Permit 07-020 to authorize a dental office in an existing building at 740 EI Camino Real in the C-2 zoning district and Old Town Commercial General Plan designation. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission, held on the 22nd day of January, 2008. CHARLES E. PUCKETT Chairperson Pro Tem ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4079 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 22"d day of January, 2008. ELIZABETH A. BINSACK Planning Commission Secretary M Exhibit IF Submitted Plans (E) STREET IMPMEIWITS (CURB, GUTTER SKWALK) Z r Exhibit G Letter from Dr. Mehta, submitted January 21, 2008 _k,SIIOK NIE111'_1 1).1).;s. 413771 Newport Ave #11 Tustin, CA92780 714-838-3230 City of Tustin, Planning Department, Tustin, CA 92780 Re: CUP application for 740 EI Camino Real, Tustin Dear Raina, Planning department staff and Planning Commission I am writing this letter to address some concerns expressed by the planning commission. It seems to me that city and the planning commition is concerned about general condition and appearance of the subject property. When I submitted my initial application, due to uncertainty of proposed use I did not want to incur more than needed expense on the plans. Once CUP is approved I will submit final plans for city's approval. These plans will certainly include enhancement for the exterior, parking area and to bring current restroom to code. Like any good owner I will like to make my building to look the best. I think city also will be very happy with my plans. To make these plans I need more time and also need to spend more money. I believe it is best if I do so after the approval of CUP. I want to thank staff and entire planning commission for their time and help on this application. Sincerely, A _ Asho ehta RECEIVED JAN 2 1 278 COMMUNITY DEVELOPMENT BY Exhibit H Office Use Provisions in Old Town, C-2 District Regulations, TCC Section 9297 (Definitions), Excerpts from August 14, 2006 Planning Commission Meeting, Excerpts from September 5, 2006 City Council Meeting n DATE: AUGUST 14, 2006 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT • ITEM #6 Inter -Com SUBJECT: CODE AMENDMENT 06-004 (OFFICE USE PROVISIONS IN OLD TOWN) RECOMMENDATION That the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment No. 06-004 related to the office use provision within the Central Commercial (C-2) District. BACKGROUND AND DISCUSSION The office use provision within C-2 Districts was initially adopted in 1983. The intent of the office use provision was to encourage retail establishments on the ground floor, particularly in Old Town. On July 2, 2001, the City Council adopted Interim Ordinance No. 1241 amending Sections 9233(a)(1)(g), 9233c(fl), and 9233(e) of the Tustin City Code clarifying. the intent of the office use criteria. On August 13, 2001, the City Council adopted Interim Ordinance No. 1242 extending Interim Ordinance No. 1241 for 10 months and 15 days or until June 28, 2002. On May 6, 2002, the City Council adopted Ordinance No. 1251 replacing the interim ordinance with a permanent ordinance. On June 14, 2004, and June 26, 2006, the Planning Commission conducted workshops, discussed Issues related to Implementation of the Office Use provision, and provided staff with direction on possible amendments to the office use provisions. Based upon input from the Planning Commission, Chamber of Commerce, and Tustin Old Town Association, the following proposed amendments to the Tustin Municipal Code are summarized as follows: Permitted Office Uses Professional and general offices that are not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation would be outright permitted. Conditionally Permitted Office Uses Professional and general offices that are fronting onto Main Street or EI Camino Real would be conditionally permitted provided that: Planning Commission Report CA 06-004 Page 2 of 3 1. Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. 2. Approval of professional and general office uses shall meet one or more of the following criterion: o The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. o The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. o The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. o The proposed use is to be located in a multi -tenant retail center and is ancillary but complimentary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. o The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Incomaatible Uses Upon studying the Office Use provision of the C-2 District, the Planning Commission identified uses contained in the C-1 and C-2 District regulations that are not compatible with the intended retail environment. The following uses would be removed from the district regulations: • Business School • Interior Decorator • Job Printing • Telephone Answering Service • Typing and Addressing Service Planning Commission Report CA 06-004 Page 3 of 3 Aparoving Authority • Section 9299.b(3)(k) of the Tustin City Code would be added to authorize the Zoning Administrator to approve, conditionally approve, or deny a Conditional Use Permit application for professional and general office uses fronting onto Main Street and EI Camino Real. In addition, Section 9232a and Section 9233a of the Tustin City Code would be amended to authorize the Community Development Director and/or the Planning Commission to determine if certain unlisted uses are considered to be similar to those listed uses and would be allowed in the commercial districts. ENVIRONMENTAL ANALYSIS The proposed amendment is not subject to the. California Environmental Quality Act ("CEQA°) pursuant to Title 14, Chapter 3 of the California Code of Regulations, Sections 15060(c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. OTHER AGENCIES The Tustin Community Redevelopment Agency has reviewed and supports Code Amendment 06-004. In addition, Code Amendment 06-004 is consistent with the Tustin Old Town Association objective to stimulate the Old Town commercial district. Staff recommends that the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. Juitildi Willkom Senior Planner Attachment: Resolution No. 4032 Elizabeth A. Binsack Community Development Director ATTACHMENT Resolution No. 4032 • RESOLUTION NO. 4032 Is A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL APPROVE CODE AMENDMENT 06-004 AMENDING THE TUSTIN CITY CODE RELATING TO OFFICE USE PROVISIONS WITHIN COMMERCIAL DISTRICTS. The Planning Commission of the City of Tustin does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That the intent of the office use provisions within Commercial districts was to encourage retail establishment on the ground floor, particularly in Old Town Tustin. B. That the current office use provisions within the Central Commercial (C-2) District restrict offices uses within any C-2 districts, including those that are located outside Old Town Tustin. C. That proposed Code Amendment 06-004 would restrict and regulate the installation and establishment of office uses only to those parcels fronting onto Main Street and EI Camino Real (major intersection for Old Town Tustin) and provide criteria for approving offices uses when fronting onto Main Street and EI Camino Real. D. That on August 14, 2006, a public hearing was duly noticed, called, and held on Code Amendment 06-004 by the Planning Commission. E. That the proposed amendments are exempt from the provisions of the California Environmental Quality Act (CEQA), as found in California Code of Regulations Sections 15060(c)(2) and 15060(c)(3). F. That the proposed code amendments are reasonably necessary to protect the health, safety, and welfare of the citizens of the .City of Tustin. G. That the proposed amendments are consistent with the Tustin General Plan in that they comply with the following goals and policies: Exhibit A Resolution No. 4032 CA os -004 Page 2 Land Use Element Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. Land Use Element 1.2: Provide for and encourage the development of neighborhoods serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration or retail service commercial uses on the street level of office projects. II. The Planning Commission hereby recommends that the City Council approve Code Amendment 06-004 by amending the Tustin City Code as follows: Section 9232.a is hereby amended as follows: a Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in those Retail Commercial District buildings specifically approved for occupancy by the respective land use category. Sections 9232.a.2(f), (k),(I), (s), and (u) are hereby deleted as follows: 9232.a.2(9 anhoola 9232.a.2(k) 9232.a.2(I) debPFIA11i% 9232.a.2(s) 9232.a.2(u) Section 9233.a is hereby amended as follows: a. Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in the Central Commercial District. • Exhibit A Resolution No. 4032 CA 06-004 Page 3 Section 9233.a(g) is hereby amended as follows: • (g) Professional and general offices not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation. Section 9233.c(y) is hereby amended as follows: (y) Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation, subiect to the use criteria for office development provided herein: of new building GF Wee use. (1) aAl w e -Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidences that an office use would be more compatible with the existing. and planned uses in the vicinity than a retail commercial use on the subiect orooerty and that an office use would be more beneficial in Implementing applicable land use policies such as the Tustin General Plan, Tustin City Code. and any Tustin Community Redevelopment Agency Proiect Area Redevelooment Plan than a retail commercial use on the subiect property. a. The proposed use is to be located in an existing building Permit. b. The proposed use is to be located In an existina building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. Exhibit A Resolution No. 4032 CA 06-004 Page 4 c. The proposed use is to be located in an existing building reauldna significant reconstruction that is not economically feasible or practical to accommodate retail establishments. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. e. The proposed use is determined to be beneficial, complementary. and compatible with surrounding neighborhood and nearby retail establishments, Section 9233.9 is hereby deleted as follows: r. i&aii�- 9t: jt Section 9299.b(3)(k) is hereby added as follows: Section 9299.b(3)(k) is hereby added as follows: Exhibit A Resolution No. 4032 CA 06-004 Page 5 (k) Professional and general offices fronting onto Main Street and EI Camino Real and located within the Old Town Commercial General land use designation. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 14th day of August, 2006. Chairperson ELIZABETH BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) City of Tustin ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California, that Resolution No. 4032 was duly passed and ado gted at a regular meeting of the Tustin Planning Commission, held on the 14 day of August, 2006. ELIZABETH BINSACK Planning Commission Secretary 0 ITEM #6 Inter -Com DATE: AUGUST 14, 2006 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CODE AMENDMENT 06-004 (OFFICE USE PROVISIONS IN OLD TOWN) RECOMMENDATION That the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment No. 06-004 related to the office use provision within the Central Commercial (C-2) Distrld. BACKGROUND AND DISCUSSION The office use provision within C-2 Districts was initially adopted in 1983. The intent of the office use provision was to encourage retail establishments on the ground floor, particularly in Old Town. On July 2, 2001, the City Council adopted Interim Ordinance No. 1241 amending Sections 9233(a)(1)(g), 9233c(ff), and 9233(e) of the Tustin City Code clarifying the Intent of the office use criteria. On August 13, 2001, the City Council adopted Interim Ordinance No. 1242 extending Interim Ordinance No. 1241 for 10 months and 15 days or until June 28, 2002. On May 6, 2002, the City Council adopted Ordinance No. 1251 replacing the interim ordinance with a permanent ordinance. On June 14, 2004, and June 26, 2006, the Planning Commission conducted workshops, discussed issues related to implementation of the Office Use provision, and provided staff with direction on possible amendments to the office use provisions. Based upon input from the Planning Commission, Chamber of Commerce, and Tustin Old Town Association, the following proposed amendments to the Tustin Municipal Code are summarized as follows: Permitted Office Uses Professional and general offices that are not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation would be outright permitted. Conditionally Permitted Office Uses Professional and general offices that are fronting onto Main Street or EI Camino Real would be conditionally permitted provided that: 10 0 Planning Commission Report CA 06-004 Page 2 of 3 1. Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. 2. Approval of professional and general office uses shall meet one or more of the following criterion: o The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. o The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. o The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. o The proposed use Is to be located in a multi -tenant retail center and is ancillary but complimentary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parldng demand. o The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Incompatible Uses Upon studying the Office Use provision of the C-2 District, the Planning Commission identified uses contained in the C-1 and C-2 District regulations that are not compatible with the intended retail environment. The following uses would be removed from the district regulations: • Business School • Interior Decorator • Job Printing • Telephone Answering Service • Typing and Addressing Service 0 Planning Commission Report CA 06.004 Page 3 of 3 Section 9299.b(3)(k) of the Administrator to approve, application for professional Camino Real. 0 Approving Authority Tustin City Code would be added to authorize the Zoning conditionally approve, or deny a Conditional Use Permit and general office uses fronting onto Main Street and EI In addition, Section 9232a and Section 9233a of the Tustin City Code would be amended to authorize the Community Development Director and/or the Planning Commission to determine if certain unlisted uses are considered to be similar to those listed uses and would be allowed in the commercial districts. ENVIRONMENTAL ANALYSIS The proposed amendment is not subject to the California Environmental Quality Act ("CEQAJ pursuant to Title 14, Chapter 3 of the Califomia Code of Regulations, Sections 15060(c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. OTHER AGENCIES The Tustin Community Redevelopment Agency has reviewed and supports Code Amendment 06-004. In addition, Code Amendment 06-004 is consistent with the Tustin Old Town Association objective to stimulate the Old Town commercial district Staff recommends that the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. Jushkfi Willkom Senior Planner Attachment: Resolution No. 4032 E"tsack Community Development Director LI ATTACHMENT Resolution No. 4032 40 r] RESOLUTION NO. 4032 0 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL APPROVE CODE AMENDMENT 06-004 AMENDING THE TUSTIN CITY CODE RELATING TO OFFICE USE PROVISIONS WITHIN COMMERCIAL DISTRICTS. The Planning Commission of the City of Tustin does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That the intent of the office use provisions within Commercial districts was to encourage retail establishment on the ground floor, particularly in Old Town Tustin. B. That the current office use provisions within the Central Commercial (C-2) District restrict offices uses within any C-2 districts, including those that are located outside Old Town Tustin. C. That proposed Code Amendment 06-004 would restrict and regulate the installation and establishment of office uses only to those parcels fronting onto Main Street and EI Camino Real (major intersection for Old Town Tustin) and provide criteria for approving offices uses when fronting onto Main Street and EI Camino Real. D. That on August 14, 2006, a public hearing was duly noticed, called, and held on Code Amendment 06-004 by the Planning Commission. E. That the proposed amendments are exempt from the provisions of the California Environmental Quality Act (CEQA), as found in California Code of Regulations Sections 15060(c)(2) and 15060(c)(3). F. That the proposed code amendments are reasonably necessary to protect the health, safety, and welfare of the citizens of the City of Tustin. G. That the proposed amendments are consistent with the Tustin General Plan in that they comply with the following goals and policies: Exhibit A Resolution No. 4032 CA 06-004 Page 2 :7 L� Land Use Element Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. Land Use Element 1.2: Provide for and encourage the development of neighborhoods serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration or retail service commercial uses on the street level of office projects. II. The Planning Commission hereby recommends that the City Council approve Code Amendment 06-004 by amending the Tustin City Code as follows: Section 9232.a is hereby amended as follows: a Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Develoament Director and/or Planning Commission, are resolved to be similar, will only be allowed in those Retail Commercial District buildings specifically approved for occupancy by the respective land use category. Sections 9232.a.2(f), (k),(I), (s), and (u) are hereby deleted as follows: 9232.a.2(9 ahoola 9232.a.2(k) 9232.a.2(n deb-pf+At*'Fi} 9232.a.2(s) 9232.a.2(u) Section 9233.a Is hereby amended as follows: a. Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in the Central Commercial District. 0 Exhibit A Resolution No. 4032 CA 06-004 Page 3 Section 9233.a(g) is hereby amended as follows: 40 (g) Professional and general offices not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial_ General Plan land use designation. Section 9233.c(y) is hereby amended as follows: (y) Professional and general offices fronting onto Main Street or El Camino Real and located within the Old Town Commercial General Pian land use designation, sublect to the use criteria for office development provided herein: _Cesebwalien of now bulIdlng--Gf -WdingCogan-. -Rim , (1) Professional and aeneral offices proposed at the ground floor level or that are greater than fifty (50) percent of the total buildina floor area shall not be approved uriless the approvina authority finds, based on, supporting documentation and evidence, that an office use would be more compatible with the existing, and planned uses in the vicinity than a retail commercial use on the subiect orooerty and that an office use would be more beneficial in 1myiementina applicable land use policies such as the Tustin General Plan, Tusfin City Code, and any Tustin Community Redevelopment Agency Prosect Area Redevelooment Plan than a retail commercial use on the subW property. (2) Approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occuoled as offices or converted to office use pursuant to an approved building permit. b. The proposed use is to be located in an existing build that because of its design and orientation Is impractical to modify or alter to accommodate retail establishments. Exhibit A Resolution No. 4032 CA 06-004 Page 4 • 0 c. The proposed use is to be located in an existing building establishments. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand e. The proposed use is determined to be beneficial, complementary. and compatible with surrounding neighborhood and nearby retail establishments. Section 9233.9 Is hereby deleted as follows: E, mipi, �Wv, OF Section 9299.b(3)(k) is hereby added as follows: • Exhibit A Resolution No. 4032 CA 06-004 Page 5 • (k) Professional and general offices fronting onto Main Street and EI Camino Real and located within the Old Town Commercial General land use designation. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 14th day of August, 2006. Chairperson ELIZABETH BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) City of Tustin ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California, that Resolution No. 4032 was duly passed and ado ted at a regular meeting of the Tustin Planning Commission, held on the 14 day of August, 2006. ELIZABETH BINSACK Planning Commission Secretary • C1 EXCERPTS FROM THE AUGUST 14, 2006 PLANNING COMMISSION MEETING Floyd 7:15 p.m. Continued to next meeting, August 28, 2006 Adopted Resolution No. 4032 icated that would a tenant two spaces to the right of the tower. N the applicant was in attendance and wished to speak; no me to the lectem. The Public Hearing dosed. It was rrkkved by Nielsen, seconded by Puckett, to adopt Resolution No. 4032, staffs language regarding the maintenance of signs added. Mo on carried 5-0. 5. DESIGN EVIEW 06-004 FOR AUTHORIZATION TO BUILD A ONES ORY COMMERCIAL RETAIL BUILDING 2,808 SQUARE ET IN AREA APPROXIMATELY FOUR (4) FEET FROM TH EXISTING NEWPORT AVENUE RIGHT -0F - WAY. THIS OJECT IS LOCATED AT 14111 NEWPORT AVENUE IN E PLANNED COMMUNITY COMMERCIAL ZONING DISTRI T. RECOMMENDA That the Planning C� denying the request to four (4) feet to the prop That the Planning Com directing the applicant to meet the required develc ssion adopt Resolution No. 4033 druct the proposed retail building at line along Newport Avenue. 3n adopt Resolution No. 4034 with staff redesigning the site to t standards. The Director suggested the hg be opened to receive testimony from anyone who might es a nable to return to the next meeting. No one came forward. The h ring closed. It was moved by Puckett, seconded by Nielsen, to continue the item to the next Planning Commission meeting, August 28, 2006. Motion carried 5-0. 6. CODE AMENDMENT 06-004 RESTRICTING AND REGULATING THE INSTALLATION AND ESTABLISHMENT OF OFFICE USES ONLY TO THOSE PARCELS FRONTING ONTO MAIN STREET AND EL CAMINO REAL AND PROVIDING CRITERIA FOR APPROVING OFFICE USES WHEN FRONTING ONTO MAIN STREET AND EL CAMINO REAL. THIS AMENDMENT RELATES TO OLD TOWN TUSTIN IN THE CENTRAL COMMERCIAL (C-2) DISTRICT. Minutes — Planning Commission August 14, 2000 — Page 3 • RECOMMENDATION: That the Planning Commission adopt Resolution No. 4032 recommending that the City Council approve Code Amendment 06-004. 7:18 p.m. The Public Hearing opened. Willkom Presented the staff report. Nielsen Asked what percentage of office uses might be grandfathered in with this amendment. Wilikom Indicated she did not have a number but would guess about 10 percent Floyd Asked if present leases would be honored. Willkom Stated that if an applicant were to propose a change, staff would not support office uses on the ground floor. Floyd Asked if there were no changes, tenants would be allowed to stay. Willkom Answered in the affirmative. Floyd Asked for a definition for what "Typing and Addressing Services' would be. Director Suggested that might refer to businesses that prepare resumes; staff felt the reference was too narrow and should be removed. Nielsen Asked if the C-2 designation focuses on EI Camino Real and Main Street Willkom Answered in the affirmative. Kozak Asked why "Interior Decorator" would be removed. Willkom Responded that an interior decorator would be considered an office use. Director Added that; for example, if a contractor wanted to locate in Old Town, staff would consider that to be an office rather than a retail use; if the Commission does not concur with staffs -- recommendation, those definitions can remain in juxtaposition with an interior decorator. Minutes — PlannkV Commisslon August 14, 2006 — Page 4 Nielsen Stated it would be best to encourage more retail in the Old Town area. Floyd Suggested it would be best to concur with staffs recommendation. Kozak Noted that he was trying to understand, suggesting that an interior decorator could be providing services for an antique store, drapery business, etc. Director Indicated that such an ancillary office use in conjunction with retail activity would be acceptable. Puckett Questioned whether or not this amendment has the support of the Old Town Merchants Association. Wilikom Indicated that the Tustin Oki Town Association (IOTA) received a notice, and there were members in the audience who might wish to speak. Linda Jennings, Stated that an interior decorator 'would be different from a 350 South B St. decorating store; and, asked what will happen to the various retail businesses in Jamestown Village and the property owned by the Kellys. Wilikom Answered that, while the business storefronts in Jamestown Village are not facing EI Camino Real, their addresses are on EI Camino Real; therefore, those businesses would be subject to the Code Amendment. Jennings Welcomed Commissioner Kozak back to the Commission; suggested that the 10 percent office use number is very low, naming various uses; and, stated she (and the Tustin Preservation Conservancy) are pleased to see this amendment come about and encouraged staff to approve as much retail in Old Town as possible In order to keep the economic viability of the commercial district of Old Town. Nathan Menard, Offered his congratulations to Commissioner Kozak; and, stated 345 West 6'hSt. that while the proposed Code Amendment may be a good start, asked if there might be some way to place term limits on the office uses currently in Old Town in order to reach the stated goal of a revitalized Old Town. 7:40 p.m. The Public Hearing closed. Mutes - Planning commission August 14,200a - Page 5 • Nielsen Agreed that this amendment is a step in the right direction and long past due; this is a good starting place; perhaps staff could research the possibility of establishing expiration dates for Old Town offices now in existence. Lee Stated he is in favor of the amendment and hopes the area can be rejuvenated, perhaps with a grocery store or other anchor tenant. Kozak Noted that he agreed with Commissioner Nielsen's suggestion that long-term office uses be investigated by staff to determine if options may be available to expedite the conversion of existing offices to retail uses. Puckett Stated he sees the amendment as a win win situation. Floyd Thanked the representatives from Oki Town; this should have been done years ago; staff should pursue options for retails uses; it may be a five- to ten-year plan. It was moved by Nielsen, seconded by Puckett, to adopt Resolution No. 4032. Motion carried 5-0. 7. TUSTIN LEGACY UPDATE This is rehensive table tracking all residential projects within tKLegacy. The table reflects the number of permittts (including affordable housing), building permits issu and units under construction, completed, and/or occupied. Director Noted how the numbers ke calculated; and, indicated the report will be provided to the Com ssion monthly or every other month, depending on the number of pe its issued. STAFF CONCERNS 8. REPORT OF ACTIONS TAKEN CITY COUNCIL MEETING. Director reported The City Council: THE AUGUST 7, 2006, • held the first reading of Ordinance No. 1314 Adjustment Regulations; and, • approved Final Tract Map 17026 (Sector A); should be submitted soon. Minutes — Planning Commission August 14, 2006 — Page 6 to Lot Line =1 EXCERPTS FROM THE SEPTEMBER 5, 2006 CITY COUNCIL MEETING 2. 3. 0 0 for the final grant amounts to be determined. We a proposing that this year's entire allocation be used to create a new position of Cri Analyst and equip this position with related hardware and software. This bill requi s both a public hearing and a special fund established for these monies. Staff repo by Police Chief Scott Jordan. The public hering opened at 7:21 p.m. There were no public speakers and the hearing closed t 7:22 p.m. Motion: It was m ved by Councilmember Amante, seconded by Mayor Pro Tem Hagen, to authori usage of the funds as recommended by the Police Department. Motion rried 5-0. URBAN AREA SECURITY INITIATIVE (UASI) GRANT The City of Tustin, acting t ou capacity as the Core City fott Areas Security Initiative, ha homeland security grant. The Initiative." The grant is from the of Domestic Preparedness, thr Security, and is intended to enh ih the City of Santa Ana Police Department in its s Santa Ana Urban Area under the FY -05 Urban applied for, received and accepted a federal ant is entitled the "FY05 Urban Areas Security n' 's Department of Homeland Security, Office Wo the State of California Office of Homeland nce untywide emergency preparedness. The terms of the grant require that the Y hardening of specific identifiable targets Department has identified the City Hall/ area of security concern and recomm pedestrian access -controlled gates to c critical equipment and resources, as employee parking area. ty of Tustin use certain grant funds for the ithin the City of Tustin. The Tustin Police ' ice Department parking structure as an ndlq the installation of both vehicle and )ntr the public access to areas housing well lqs provide a safe and controlled Staff report presentation by Police Chief Scott Jorc"On. The public hearing opened at 7:24 p.m. There hearing closed at 7:25 p.m. Motion: It was moved by Councilmember Bone, Amante, to authorize usage of the funds as Department. Motion carried 5-0. no public speakers and the CODE AMENDMENT 06-004: OFFICE USE PROVISION by Councilmember ed by the Police Code Amendment 06-004 would restrict and regulate the installation and establishment of office uses only to those parcels fronting onto Main Street and EI City Council Meeting September 5, 2006 Minutes Page 3 of 14 0 • Camino Real and provide criteria for approving office uses when fronting onto Main Street and EI Camino Real. On August 14, 2006, the Planning Commission considered Code Amendment 06-004 and adopted Resolution No. 4032 _. recommending that the City Council approve Code Amendment 06-004. Applicant: City of Tustin Community Development Department Staff report presentation by Community Development Director Elizabeth Binsack: Background • Office Use provision was adopted in 1983. The intent and purpose of the office use provision was to encourage retail establishment on ground floor particularly in Old Town. • Code Amendment 02-002 adopted in May 2002 clarified the process and criteria for considering office uses within C-2 zone. • On June 14, 2004, and June 26, 2006 the Planning Commission conducted workshops, discussed issues related to implementation of the Office Use provision, and provided staff with directions on possible amendments to the office use provisions. Current Code Requirements • An office use is permitted to locate within the C-2 zoning district if: • the use is located on any floor above the ground floor; and, • occupies less than fifty (50) percent of the total floor area. • An office use may also be permitted anywhere in a building where a Conditional Use Permit was granted. • An office use can be conditionally permitted if • it is located on the ground floor or In more than fifty (50) percent of the total floor area of a building; and, • the Planning Commission determines that the office use would be more beneficial than a retail establishment. • These provisions apply to construction of new office buildings and new office occupancies in existing buildings. Issues with Current Ordinance • Location of Office Uses • While most of the C-2 zoning districts are concentrated in the Old Town Tustin area, there are a number of properties zoned C-2 located outside of Old Town Tustin. • These areas are freestanding developments that are not particularly conducive to pedestrian activity. • The majority of inquiries to establish offices on ground floors have been in areas outside of Old Town Tustin. • There area number of properties located in Old Town but do not contribute to pedestrian activities. These properties do not front onto Main Street or EI Camino Real. Configuration of Existing Office Buildings City Council Meeting September 5, 2006 Minutes Page 4 of 14 0 • Some buildings built as office buildings are not configured to accommodate retailing activity (without traditional retail storefronts). While some of these buildings may be easily converted to retail space, some would require more significant modifications. Quasi -Office and Incompatible Uses • Quasi -office uses are classified as either "retail businesses" or "service businesses" and are outright permitted. • Types of retail businesses that are outright permitted include a variety of retail shops as well as real estate offices. • Examples of service businesses that are permitted include barber shops, beauty parlors, interior decorators, restaurants, photograph galleries, travel agencies, telephone answering services, etc. • There has been some confusion about why certain uses that appear to be office uses are permitted. In addition, upon studying the office use provision, the Planning Commission identified uses contained in the C-1 and C-2 District regulations that are not compatible with the intended retail environment Proposed Amendment Permitted Office Uses • Professional and general offices that are not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation would be outright permitted. Conditionally Permitted Office Uses • Professional and general offices that are fronting onto Main Street or EI Camino Real would be conditionally permitted provided that: • Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documentation and evidence that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the.subject property. Approval of professional and general office uses shall meet one or more of the following criterion: • The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. • The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. • The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate . retail establishments. City Council Meeting September 5, 2006 Minutes Page 5 of 14 The proposed use is to be located in a multi -tenant retail center and is ancillary but complimentary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. r_ The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. Proposed Amendment The following uses are proposed to be removed from the district regulations: • Business School • Inteddr Decorator • Job Printing • Telephone Answering Service • Typing and Addressing Service Proposed Amendment Awroving Authority • Section 9299.b(3)(k) of the Tustin City Code would be added to authorize the Zoning Administrator to approve, conditionally approve, or deny a Conditional Use Permit application for professional and general office uses fronting onto Main Street and EI Camino Real. • In addition, Section 9232a and Section 9233a of the Tustin City Code would be amended to authorize the Community Development Director and/or the Planning Commission to determine if certain unlisted uses. are considered to be similar to those listed uses and would be allowed in the commercial districts. Recommendation • Staff recommends that the City Council conduct a public hearing; introduce and have the first reading of Ordinance No. 1317 approving Code Amendment 06- 004; and, set for second reading at the Council's next scheduled meeting. The public hearing opened at 7:31 p.m. There were no public speakers and the hearing closed at 7:32 p.m. Motion: It was moved by Mayor Pro Tem Hagen, seconded by Councilmember Kawasima, to introduce and have first reading by title only of the following ordinance: ORDINANCE NO. 1317 - An ordinance of the City Council of the City of Tustin, California, approving Code Amendment 06-004 amending the Tustin City Code relating to Office Use Provisions within Commercial Districts Motion carried 5-0. 4. APPEAL OF PLANNING COMMISSION DENIAL OF MINOR ADJUSTMENT 06- 001 (2650 DAVIS DRIVE, PRESIDI TRACT) On July 10, 2006, the Planning Coftrission adopted Resolution No. 4029, denying Minor Adjustment 06-001 to auth dze the height extension up to twenty City Council Meeting Minutes nber 5, 2006 Page 6 of 14 TUSTIN CITY CODE IZONING 9233 The planning commission may prescribe the amount of parking for uses not listed herein. (Ord. No. 963, Sec. 2B, 1-20-86) (g) Driveways: Subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2, 8-6-01) d Use Criteria—Office Development (1) Office developments within the Retail Commercial District (C-1) shall be constructed to conform with the parking standards for retail commercial uses on the first floor area of the building unless otherwise specifically exempted pursuant to the approved conditional use permit. (2) Findings, including, but not limited to the following, shall be made by the Planning Commission prior to approving a conditional use permit for construction of a building where greater than fifty (50) percent of the total floor area, or any portion of the ground floor area is designated for occupancy by professional or general offices: (a) Development or construction of professional or general office buildings would be more compatible with surrounding uses in the area than permitted retail commercial uses on the subject property. (3) Development or construction of buildings restricted to a mixture of uses in which the retail commercial floor area exceeds fifty (50) percent of the total floor area is exempt from office development use criteria. (Ord. No. 157, Sec. 4.7; Ord. No. 896, Sec. 4, 11-21-83) 9233 CENTRAL COMMERCIAL DISTRICT (C-2) a Permitted Uses The following uses, or unlisted uses which, in the opinion of the Community Development Director and/or Planning Commission, are resolved to be similar, will only be allowed in the Central Commercial District. (Ord. No. 1317, Sec. 11, 9-18-06) (1) All uses allowed in the C-1 District, subject to the development and use criteria specified in Section 9232. (a) Reserved (b) Bakeries (c) Bowling alleys (d) Food shops (e) Mortuaries (f) Nurseries REV: 1-2007 LU -2-39 TUSTIN CITY CODE ZONING 9233 (g) Professional and general offices not fronting onto Main Street or EI Camino Real or located outside the Old Town Commercial General Plan land use designation. (Ord. No. 1241, Sec. 1, 7-2-01;- Ord. No. 1242, Sec. 2, 8-13-01; Ord. No. 1251, Sec. 2, 5-20-02; Ord. No. 1317, Sec. 11, 9-18-06) (h) Public utility buildings and uses (except corporation yards) (i) Radio stores (j) Restaurants (k) Shoe shops (1) Studios (Ord. No. 175, Sec. 5; Ord. No. 888, Secs. 1(a), 5, 6, 8-1-83) b Development Standards (1) Maximum height: 50 feet (2) Minimum building site: 200 [square feet] (3) Maximum lot coverage: 100 percent, less parking and landscaping requirements, subject to General Provisions. (4) Minimum front yard setback: None, 10 feet when frontage abuts a lot in an 'R" District, unless otherwise shown on Zoning Map. (5) Minimum side yard setback: None, 10 feet when side abuts on a lot in an "R" District. (6) Off-street parking: As specified for "C-1" Zone. The planning commission may prescribe the amount of parking for uses not listed herein. (Ord. No. 157, Sec. 4.8, Ord. No. 293, Sec. 2(b) and 3) (7) Driveways: Subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2, 8-6-01) c Conditionally Permitted Uses The following permitted uses subject to a use permit: (a) Adult book stores (a.1) Amusement resorts, arcades and private recreational facilities, and video and vending machines and other such contrivances in excess of five (5) which are identical to the principal business. (b) Small animal hospitals or clinics with one (1) caretaker apartment incidental thereto. (1) Off-street parking: 4 spaces per doctor plus one (1) space for each additional employee. (Ord. No. 340, Sec. 2; Ord. No. 352, Sec. 4) (c) Auto repair shops. (d) Billiard parlors and pool halls (1) Off-street parking: one (1) parking space per 100 square feet of floor space. (Ord. No. 314) REV: 1-2007 LU -2-40 TUSTIN CITY CODE ZONING 9233 (e) Churches, schools and public uses (f) Cleaning and dyeing establishments (g) Drive-in establishments for permitted uses (h) Figure model studios (i) Garages, public 0) Hotels and motels (k) Laundries and launderettes (Ord. No. 699, Sec. 2) (1) Massage establishments (Ord. No. 699, Sec. 2) (m) Nursery school (1) Maximum height: 30 feet (2) Minimum building site: 10,000 square feet (3) Minimum lot width at property line: 100 feet (4) Minimum front yard setback: None, 10 feet when frontage abuts a lot in an "R" District, unless otherwise shown on Zoning Map (5) Minimum side yard setback: None, 10 feet when side abuts on a lot in an "R" District (6) Off-street parking: One (1) space for each staffmember plus one (1) loading space for each eight (8) children. Loading spaces shall be located for each circulation and shall not interfere with other required parking. (7) Building requirements and indoor and outdoor space required per child are established by the City of Tustin Uniform Building Code and by the State Department of Social Welfare. (8) Outdoor play areas shall be screened from surrounding properties by a 6'8" high solid wall or fence, except when play areas abut public park or playfield. (9) Structures proposed for use as a day nursery or a nursery school shall be inspected and approved by the Fire Department prior to occupancy. (Ord. No. 372, Secs. 3 and 4) (10) Driveways: Subject to Subsection 9271 bb. (Ord. No. 1240, Sec. 2, 8-6-01) (n) Outdoor markets and outdoor sales establishments (o) Pet shops (p) Rest homes (q) Secondhand sales (r) Service stations (Ord. No. 311) (s) Used car sales lots (t) Other uses which in the opinion of the Planning Commission are of a similar nature REV: 1-2007 LU -2-41 TUSTIN CITY CODE ZONING 9233 (u) Reserved (v) Alcoholic beverage sales establishments subject to the following criteria: and the Planning Commission's Guidelines for Alcoholic Beverage Sales Establishments. Off-site alcoholic beverage sales located in a building and permitted business with less than 15,000 square feet of gross floor area and permitted businesses with more than 15,000 square feet of gross floor area where the off-site alcoholic beverage sales area within the building occupies more than 10 percent of the gross floor area, subject to the following minimum distance regulations: (1) 300 feet from any other residentially zoned or used property. 500 feet from any existing off-site sales establishment. 600 feet from any church, place of worship, public or private school, park, playground, clinic, hospital, health care facility or convalescent home. 600 feet from existing on-site sales establishments, except restaurant establish- ments. (2) Minimum distances between off-site sale establishments and; residentially zoned or used property, churches, places of worship, public or private schools, parks, playgrounds, clinics, hospitals, health care facilities and convalescent homes shall be computed by measuring the distance from the closest entry/exit provided for public%ustomer access of the off-site establishment to the property line of any of the above uses, whether inside or outside the city boundaries. (3) Minimum distances between off-site sales establishment and another off-site or on-site sales establishment, except restaurant establishments whether inside or outside city boundaries shall be computed by measuring the distance between the closest exterior structural walls of each use. (4) Specialty stores as defined in Section 9297 of the Tustin City Code shall be exempt from minimum distance regulations. (Ord. No. 1237, Sec. 2, 6-4-01) On-site alcoholic beverage sales establishments except restaurant establishments subject to the following minimum distance regulations: (1) 1,000 feet from any residentially zoned or used property. 1,000 feet from any other existing on-site except for restaurant establishments or off-site sales establishments. 1,000 feet from any church, place of worship, public or private school, park, playground, clinic, hospital, health care facility or convalescent home. (2) Minimum distances between on-site sale establishments except for restaurant establishments and; residentially zoned or used property, churches, places of worship, public or private schools, parks, playgrounds, clinics, hospitals, health care facilities and convalescent homes shall be computed by measuring the distance from the closest exterior wall of the on-site establishment to the property line of any of the above uses whether inside or outside the city boundaries. REV 1-2007 LU -242 TUSTIN CITY CODE ZONING 9233 (3) Minimum distances between on-site sales establishments and another off-site or on-site sales establishment except restaurant establishments whether inside or outside city boundaries shall be computed by measuring the distance between the closest exterior structural walls of each use. (Ord. No. 920, Sec. 2, 11-19-84; Ord. No. 981, Sec. 4, 5-4-87; Ord. No. 1101, Sec. 1F, 11-16-92; Ord. No. 1161, Sec. 1B, 1-2-96; Ord. No. 1230, § 2, 6-19-00) (w) Bowling alleys (x) Hotels and motels (y) Professional and general offices fronting onto Main Street or EI Camino Real and located within the Old Town Commercial General Plan land use designation, subject to the use criteria for office development provided herein: (1) Professional and general offices proposed at the ground floor level or that are greater than fifty (50) percent of the total building floor area shall not be approved unless the approving authority finds, based on supporting documenta- tion and evidence, that an office use would be more compatible with the existing, and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. (2) Approval of professional and general office uses shall meet one (1) or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit. b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. C. The proposed use is to be located in an existing building requiring signifi- cant reconstruction that is not economically feasible or practical to accom- modate retail establishments. d. The proposed use is to .be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establish- ments. (Ord. No. 1242, Sec. 3, 8-13-01; Ord. No. 1251, Sec. 2, 5-20-02; Ord. No. 1317, Sec. H, 9-18-06) (z) Fortune-telling businesses as defined by Section 3811 of the Tustin City Code. REV. 1-2007 LU -2-43 TUSTIN CITY CODE ZONING 9233 (aa) Convenience stores. (Ord. No. 981, Sec. 3, 5-4-87) (bb) Bulk vending machines, subject to standards contained in the C-1 District regulations, Section 9232b. (Ord. No. 993, Sec. 6, 9-8-87) (cc) Large collection facilities, subject to standards contained in the C-1 District regula- tions, section 9232a.2. (Ord. No. 993, Sec. 7, 9-8-87) (dd) Adult entertainment booking agency, as defined in section 3731 of this Code. (Ord. No. 175, Sec. 5; Ord. No. 699, Sec. 2; Ord. No. 888, Seca. 1(6), 7, 8-1-83; Ord. No. 958, Sec. 2, 1-20-86; Ord. No. 1170, Sec. 2, 6-3-96) (ee) Specialty stores. (Ord. No. 1237, Sec. 2, 6-4-01) M) Reserved. (Ord. No. 1251, Sec. 2, 5-20-02) d Development Standards for Conditionally Permitted Uses (1) As specified in section 9233b above, unless otherwise indicated, with rear yard and off-street parking requirements as specified in the use permit. (2) Hotel off-street parking requirement is 1 space for each 2 guest rooms. (Ord. No. 293, Sec. 3) e Reserved (Ord. No. 157, Sec. 4.8; Ord. No. 896, Sec. 8,11-21-83; Ord. No. 1241, Sec. 2, 7-2-01; Ord. No. 1242, Sec. 4, 8-13-01; Ord. No. 1251, Sec. 2, 5-20-02; Ord. No. 1317, Sec. II, 9-18-06) 9234 HEAVY COMMERCIAL DISTRICT (C-3) a Permitted Uses None but the following uses, or uses which in the opinion of the Planning Commission are similar, will be allowed in the Heavy Commercial District (C-3): (1) All uses listed in the C-2 District, except schools, churches and outdoor sales establishments (2) Electronic plants within a building (3) Research plants (4) Secondhand sales within a building (5) Wholesale stores and storage within a building (6) Off-site alcoholic beverage sales located within a building and permitted business with at least 15,000 square feet of gross floor area and where the alcoholic beverage sales area within the building occupies no more than 10 percent of the gross floor area (Ord. No. 1101, Sec. 1B, 11-16-92) REV: 1-2007 LU -2-44 TUSTIN CITY CODE ZONING 9234 b Development Standards for Permitted Uses (a) Maximum height: 50 feet (b) Minimum building site: 2,000 square feet REV 1-2007 LU -2-44.1 TUSTIN CITY CODE. ZONING 9296. After the conclusion of such hearing the City Council may wiin one (1) year adopt the proposed amendment or any part thereof set forth i the petition or resolution of intention in such form as the Council deems dei.' able. (Ord. No. 157, Sec. 9.7) 9296 NOTICES OF HEARING a Definition Whenever this Chapter prescribes that a public hearin shall be held on the application for variance or amendments to ti.=s Chapt , notice thereof shall be given as provided in this Section. (Ord. No. 1W, Sec. 10.1) b Notice of. Hearing Notices of the public hearings on applicatio for use variance, appeals and amendments to this Chapter changing the bo daries of any district shall be given by the body conducting such hearings�in the manner prescribed by Sections 65500 and 65854 of the Government Code o the State of California. (Ord. No. 303, Sec. 3) c Notice of Hearing: Special Hearns Notices of public hearings onmat ers other than as specified in Subsection "b" hereof shall be given by the IV conducting such hearing by publication in a newspaper of general circulatioh in the City of Tustin, at least ten (10) days before the hearing. (Ord. N 157, Sec. 10.3) d Notice of Hearing: Fajfture to Post Notices Failure to mail orpost notices as specified in Subsection "b" hereof shall not invalidate any procee ngs. (Ord. No. 157, Sec. 10.4) e Notice of Hear' g: Filing of Affidavit Upon completion the posting or mailing of the notices provided for in Sub- section "b" an publication of notices as Provided in Subsections "b" and "c" hereof, the Cy Clerk, if the hearing is held by the Planning Commission, or if the hearyfg is held by the City Council shall cause an affidavit of such mailing or ublication to be filed in the permanent records of the particular proceedings to which such notices pertain. (Ord. No. 157, Sec. 10.5) 9297 DEFINITIONS "Administrative Office" means an office for the rendering of service or general administration, but excluding retail sales. (Ord. No. 157, Sec. 11.1) "Adult Bookstore" shall mean an establishment having as a substantial or signi- ficant portion of its stock in trade, material which is distinguished or charac- terized by its emphasis on matter depicting, describing, or related to specified sexual activity or specified anatomical areas, or an establishment with a seg- ment or section thereof devoted to the sale or display of such material. (Ord. No. 819, Sec. 1, 2-19-80) REV: 1-82_ LU -2-80 TUSTIN CITY CODE ZONING 9297 "Adult Business" shall mean any business which is conducted exclusively for the patronage of adults, and as to which minors are specifically excluded from patronage thereat, either by law or by the operators of such business. "Adult Business" shall also mean and include adult bookstores, adult theaters, massage parlors, topless dancing, stripping, figure modeling studios, adult motels or hotels, but shall not include those uses or activities the regulation of which are preempted by state law. (Ord. No. 819, Sec. 1, 2-19-80) "Adult Hotel/Motel" shall mean a hotel or motel which provides, through closed circuit television, or other media, material which is distinguished or characterized by the emphasis on matter depicting or describing or related to specified sexual activities or specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Adult Park" means any mobile home or travel trailer park the spaces of which are rented or leased only to persons having no children under the age of fifteen (15). (Ord. No. 329, Sec. 2) "Adult Theater" shall mean a theater which presents live entertainment or motion pictures or videotaped presentations or slide photographs, which are distinguished or characterized by their emphasis on matter depicting, describing, or related to specified sexual activity or specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Alcoholic Beverage Sales Establishment" means any establishment where an alcoholic beverage is sold, including, but not limited to, liquor stores, bars, lounges, restaurants, markets, mini -marts, gas stations, drive-in dairies, bakeries and florists. (Ord. No. 920, Sec. 6, 11-19-84) "Alley" means a public or private way less than thirty (30) feet in width which affords a secondary means of access to abutting property. (Ord. No. 157, Sec. 11.2) "Alteration means any exterior change or modification requiring a building permit of any Designated Cultural Resource or of any property located within a Cultural Resource District. (Ord. No. 1001, Sec. 3, 6-20-88) "Apartment" means any building or portion thereof which is designed and built for occupancy of three (3) or more families. (Ord. No. 157. Sec. 11.3) "Beverage" means beer and. other malt beverages, carbonated mineral and soda waters, and similar carbonated soft drinks in liquid form which are intended for human consumption. (Ord. No. 993, Sec. 1, 9-8-87) "Beverage container" means the individual, separate bottle, can, jar, carton, or other receptacle, however denominated, in which a beverage is sold, and which is constructed of metal, glass, or plastic, or other material, or any combination of these materials. 'Beverage container" does not include cups or other similar open or loosely sealed receptacles. (Ord. No. 993, Sec. 1, 9-9-87) REV. 7-00 LU -2-81 TUSTIN CITY CODE ZONING 9297 "Block" means all property fronting upon one side of a street between intersecting and intercepting streets, or between a street and a railroad right-of-way, waterway, dead end street or city boundary. An intercepting street shall determine only the boundary of the block on the side of a street which it intercepts. (Ord. No. 157, Sec. 11.5) "Boarding House" means a dwelling other than a hotel or motel, where lodging and/or meals for three (3) or more persons is provided for compensation. (Ord. No. 157, Sec. 11.6; Ord. No. 1225, Sec. IV, 1-17-00) "Building" means any structure having a roof supported by columns or by walls and designed for the shelter or housing of any person, animal or chattel. (Ord. No. 157, Sec. 11.7) "Building, Accessory" means a subordinate building including shelters or pools, the use of which is incidental to that of the main building on the same lot and/or building site. (Ord. No. 157, Sec. 11.8) "Building, Main" means a building in which is conducted the principal use of the lot and/or building site on which it is situated. (Ord. No. 156, Sec. 11.9) "Building Setback Line" means a line established to denote. the minimum distance a building may be constructed from a property line or right-of-way line. (Ord. No. 353, Sec. 4) "Building Site" means a lot or parcel of land, in single or joint ownership, and occupied or to be occupied by a main building and accessory buildings, or by a dwelling group and its accessory building, together with such open spaces as are required by the terms of this Chapter and having its principal frontage on a street, road, highway or waterway. (Ord. No. 157. Sec. 11.10) 'Business, Retail' means any establishment where the retail sale of any article, substance, or commodity, but not including the sale of lumber or other building materials, or the sale of used or secondhand goods or materials of any kind. (Ord. No. 157, Sec. 11.11) "Business, Wholesale" means the wholesale handling of any article, substance or commod- ity, but not including the handling of lumber or other building materials or the open storage or sale of any material or commodity, and not including the processing or manufacture of any product or substance. (Ord. No. 157, Sec. 11.12) "Carport" means a permanent, roofed structure, used for automobile shelter and automobile storage, in addition to the lockable storage hereinafter specified. Lockable, usable and accessible storage space of at least ninety (90) cubic feet shall be provided in all carports. (Ord. No. 304, Sec. 2) "Certificate of Appropriateness" means an approved certificate issued for the construction, demolition, alteration, removal, or relocation of any publicly or privately owned Designated Cultural Resource, or any structure, natural feature, of site within a Cultural Resource District. (Ord. No. 1001, Sec. 3, 6-20-88) ; REV. 7-00 LU -2-82 TUSTIN CITY CODE ZONING 9297 "Combining District" means any district in which the general district regulations are combined with those special districts defined in Section 9213 for the purpose of adding additional special regulations. (Ord. No. 157, Sec. 11.13) "Committee" means the Historic Resource Committee. (Ord. No. 1001, Sec. 3, 6-20-88; Ord. No. 1301, $ VII, 9-19-05) "Community Development Director" means the Director of the Community Development Department or designee. (Ord. No. 1301, ¢ VIII, 9-19-05) "Consumer" means every person who, for his or her use or consumption, purchases a beverage in a beverage container from a dealer. "Consumer" includes, but is not limited to, a lodging, eating, or drinking establishment, and soft drink vending machines. (Ord. No. 993, Sec. 1, 9-8-87) "Convenience Store" means any establishment under fifteen thousand (15,000) square feet in size where food, beverage, magazine and auto related items, or any combination thereof, are sold for off-site use and/or consumption. (Ord. No. 981, Sec. 11, 5-4-87) "Cultural Resource District" means any area containing improvements which have a special character, historical interest or aesthetic value or which represent one (1) or more architec- tural periods or styles typical to the history of the City, and which improvements constitute a distinct section of the City that has been designated a Cultural Resource District pursuant to Section 9252 of the Zoning Code. (Ord. No. 1001, Sec. 3, 6-20-88) "Day Care Homes—Children" means a family dwelling unit, non -institutional in character, properly licensed by the Orange County Welfare Department, which provides day care only, with or without compensation for: (1) Not more than five (5) children including the family day care mother's own children, when the age range is infancy through six (6) (years]; and, (2) Not more than six (6) children when the age range is three (3) to sixteen (16), including the day care mother's own children. (Ord. No. 511) "Day Nursery" means a place, institutional in nature, where seven (7) or more children are left for daytime care. "Demolition" means to tear down or demolish. (Ord. No. 1001, Sec. 3, 6-20-88) "Designated Cultural Resource" means improvements, buildings, structure, signs, features, sites, places, areas or other objects of scientific, aesthetic, educational, cultural, architectural, or historical significance to the residents of the City that has been designated a Cultural Resource by the City Council. (Ord. No. 1001, Sec. 3, 6-20-88) "Designated Site (Cultural Resource Site)" means a parcel or part thereof on which a cultural resource is situated, and which has been designated a cultural resource site by the City Council. (Ord. No. 1001, Sec. 3, 6-20-88) REV: 1-2006 LU -2-83 TUSTIN CITY '..'ODE ZONING 9297 "District" means a portion of the City within which certain uses of land and buildings are permitted or prohibited and within which certain yards and other open spaces are required and certain height limits are established for buildings, all as set forth and specified in this Chapter. (Ord.``,ro. 167, Sec. 11.14) "Driveway" n: Sans a paved area of a lot located between the public right-of-way and the garage, carlwrt. )r required parking space designed and intended as an access way between a private or pu')hc road and the garage, carport, or required parking space. (Ord. No. 1240, Sec. 2,8-6-01) "Dwelling" m ans a building or portion thereof designed for residential occupancy. (Ord. No. 167, Sec. 11.16; )rd. No. 1228, Sec. IV, i-17-00) "Dwelling, Single -Family" means a building designed for, or used to house not more than one (1) family, including all necessary employees of such family. (Ord. No. 167, Sec. 11. 16) "Dwelling, Two -Family or Duplex" means a building containing not more than two (2) kitchens, designed and/or used to house not more than two (2) families, living independently of each other, including all necessary employees of each such family. (Ord. No. 167, Sec. 11.17) "Dwelling, Multiple" means a building, or portion thereof, used and designed as a residence for three (3) or -pore families living independently of each other and doing their own cooking in said budding, including apartment houses, apartment hotels and flats, but not including motels, boardinghouses, and hotels. (Ord. No. 167, Sec. 11.18) "Dwelling Groups" means a group of two (2) or more detached one -family, two-family, or multiple dwellings occupying a parcel of land in one (1) ownership and having any yard or court in common. but not including automobile courts. (Ord. No. 176, Sec. 9) "Exterior Arc::tectural Feature" means the architectural elements embodying style, design, general arrang- ment and components of all of the outer surfaces of an improvement, including, but not limited to, the kind, color and texture of the building materials and the type and style of ali windows, doors, lights, signs and other fixtures appurtenant to such improvement. (Crd. No. 1001, Sec. 3, 6-20-88) "Family" means an individual or two . (2) or more persons living together as a single housekeeping unit in a dwelling unit. (Ord. No. 157, Sec. ll. 20; Ord. No. 1226, Sec. IV 1-17-00) "Family Park" means any mobile home or travel trailer park, the spaces of which are rented or leased without restriction upon the ages of the children or occupants. (Ord. No. 329, Sec. 2) "Fence" means any structural device forming a physical barrier by means of hedge, wood, mesh, metal, chain, brick, stake, plastic or other similar materials. (Ord. No. 167, Sec. 11.21) "Figure Modeling Studio" shall mean any establishment in which models pose while exposing specified anatomical areas. (Ord. No. 819, Sec. 1, 2-19-80) "Garage, Private" means a detached, accessory building, or a portion of a main building on the same lot as a dwelling, used primarily for the housing of vehicles of the occupant of the dwelling, having a roof, and enclosed on at least three (3) sides, with the fourth side being a REV: 1-2006 LU -2-84 i TUSTIN CITY CODE ZONING 9297 lockable door, with not less than ten feet by twenty feet (10' x 201) clear and unobstructed inside dimensions, and which shall be permanently maintained as a parking accommodation. (Ord. No. 733, Sec. 7) REV: 1-2006 LU -2-84.1 TUSTIN CITY CODE ZONING 9297 "Guesthouse" means detached living quarters of a permanent type of construction and without kitchens or cooking facilities and where no compensation in any form is received or paid. (Ord. No. 157, Sec. 11.23) "Height of Building" means the vertical distance from the average level of the highest and lowest point of that portion of the lot covered by the building to the topmost point of the roof. (Ord. No. 157, Sec. 11.25) "Home Occupation" means an occupation carried on wholly, within a dwelling by an occupant of the dwelling, as a secondary use, in connection with which there is: No person employed who is not a resident of the premises, no exterior display, no stock -in -trade or commodity sold upon the premises, no mechanical or electrical equipment used except such as is customary for housekeeping purposes, no outside operations or storage, no alteration of the residential appearance of the health, safety or welfare of the general public, or which emits smoke, dust, fumes, odors, vibrations, glare or electrical disturbances onto any other premises, no activity which generates excessive pedestrian traffic or vehicular traffic or parking in excess of that otherwise normally found in the zone, no parking or use made of any vehicle over three-fourths ton carrying capacity, no parking in the front yard, driveway or immediately adjacent to the premises of any vehicle bearing any sign, identification or advertisement of the home occupation. (Ord. No. 330, Sec. 2B) "Hotel"—See Motel. (Ord. No. 157, Sec. 11.26) "Improvement" means any building, structure, parking facility, fence, gate, wall, landscap- ing requiring a building permit constituting a physical betterment of real property, or any part of such betterment. (Ord. No. 1001, Sec. 3, 6-20-88) "Junk Yard" means more than one hundred (100) square feet of the area of any lot used for the storage of junk, including scrap metals, salvage or other scrap materials, or for the dismantling or "wrecking" of automobiles or other vehicles or machinery, whether for sale or storage. (Ord. No.157, Sec. 11.27) "Kennel" means any lot or premises on which more than three (3) dogs, cats or similar small animals, more than three (3) months of age are kept, boarded, or trained, whether in special buildings or not. (Ord. No. 352, Sec. 1) "Large Family Day Care Home" means a family dwelling unit, non -institutional in character, properly licensed by the County of Orange, which provides day care only, for a maximum of twelve (12) children ages eighteen (18) years or younger, including the licensee's own children under the age of twelve (12). (Ord. No. 911, Sec. 7, 5-21-84) "Lot"—See Building Site. (Ord. No. 157, Sec. 11.28) "Lot Front" means the parrowest dimension of a lot fronting on a street. ,Ord. No. 157, Sec. 11.29) "Lot Line" means a line separating the frontage from a street; the side from a street or adjoining property; the rear from an alley or street, or adjoining property. (Ord. No. 157, Sec. 11.31) REV. 7-2001, Rev. LU -2-85 TUSTIN CITY CODE ZONING 9297 "Lot, Through" means a lot having frontage on two (2) parallel or approximately parallel streets. (Ord. No. 157, Sec. 11.32) "Lot Side" means any lot boundary not a front or rear lot line. (Ord. No. 157, Sec. 11.30) "Material" relative to adult businesses shall mean and include, but not be limited to, accessories, books, magazines, photographs, prints, drawings, paintings, motion pictures, videotapes, and pamphlets, or any combination thereof. (Ord. No. 819, Sec. 1, 2-19-80) "Massage Parlor" shall mean any establishment required to be licensed pursuant to Section 3711 of the Tustin City Code. (Ord. No. 819, Sec. 1, 2-19-80) "Mobile Home" means a vehicle, other than a motor vehicle, designed for human habitation, for carrying persons and property on its own structure, for being drawn by a motor vehicle. (Ord. No. 329, Sec. 2) "Mobile Home Park" means any area or tract of land where one (1) or more mobile home lots are rented or leased or held out for rent or lease to accommodate mobile homes used for human habitation. The rental paid for any such mobile home shall be deemed to include rental for the lot it occupies. (Ord. No. 329, Sec. 2) "Mobile Recycling Unit" means an automobile, truck, trailer or van, licensed by the Department of Motor Vehicles, which is used for the collection of recyclable materials. A Mobile Recycling Center also means the bins, boxes or containers transported by trucks, vans, or trailers, and used for the collection of recyclable materials. (Ord. No. 993, Sec. 1, 9-8-87) "Motel" or "Hotel" means a single building or group of detached buildings, containing guest rooms or apartments, with automobile storage space provided on the site for such rooms or apartments provided in connection therewith, which group is designed and used primarily for the accommodation of transient automobile travelers. (Ord. No. 157, Sec. 11.4) "Nonconforming Use" means a use that does not conform to the regulations for the district in which it is situated. (Ord. No. 157, Sec. 11.33) "Nursery School" means a public or private agency, institutional in nature, engaged in educational activity with six (6) or more pre-school children. (Ord. No. 511) "Official Plan Line" means a line established to denote the ultimate right-of-way of a street. (Ord. No. 353, Sec. 5) "Parking Space" means accessible and usable space on a building site, at least nine feet by twenty feet (9' x 20') for open parking and ten feet by twenty feet (10' x 20') clear and unobstructed inside dimensions for covered parking, located off the street and for the parking of automobiles. Not less than two (2) parking spaces per dwelling unit shall be provided and permanently maintained as parking accommodation, one of which must be covered. Parking not otherwise required to be in a garage or carport must be located on a paved area on the same lot or parcel of land or contiguous thereto. (Ord. No. 733, Sec. 8) REV: 7-2001, Rev. LU -2-86 TUSTIN CITY CODE ZONING 8297 "Paved Area" means an area of any required yard which is constructed with impervious materials which either results in an increase in the amount of storm water run-off into public storm drainage facilities or hinders natural percolation of storm water on the subject property. (Ord. No. 1240, Sec. 2, 8-6-01) "Person" includes any individual, city, county, or city and county; partnerships, corporations, cooperatives, association, trust or any other legal entities, including the Federal Government. (Ord. No. 157, Sec. 11.35) "Portable Vending Device" means any stand, enclosure, booth, kiosk, instrument or mechanism intended to be temporarily used to display, distribute or sell food, beverage, Product to the public. (Ord. No. 1123, Sec. 2, 6-6-94) "Processor" means any person, including a scrap dealer, certified by the State Department of Conservation who purchases empty aluminum beverage containers, nonalun&um metal beverage containers, glass beverage containers, plastic beverage containers, or any other beverage containers, including any one (1) or more of those beverage containers, which have a redemption value established pursuant to this division, from recycling center in this state for recycling or, if the container is not recyclable, not for recycling, and who cancels, or who certifies to the department in a form prescribed by the Department of Conservation of, the redemption value and redemption bonus of these empty beverage containers by processing empty beverage containers, in any manner which the department may prescribe. However, the department shall not take any action regulating scrap dealers or recycling enters who are processors or recycling centers unless authorized by and pursuant to the goals of this division. (Ord. No. 993, Sec. 1, 9-8-87) "Professional Office* means an office for the conduct of any of the following uses only: Accountant, architect, attorney, chiropractor, optometrist, chiropodist, designer, draftsman, engineer, surveyor, dentist, physician, and surgeon. (Ord. No. 157, Sec. 11.36) "Pushcart" means any wagon, cart, or similar wheeled container, which is not a "vehicle", as defined in the Vehicle Code of the State of California, from which food, beverage, or product is displayed, distributed or offered for sale, to the public. (Ord. No. 1123, Sec. 2, 6-6-94) "Pushcart or Portable Vending Device Operator" means any person, firm, partnership, association, corporation, stockholder, including, but not limited to, owners, operators, lessors and lessees, who operate a pushcart or portable vending device for the purpose of vending food, beverage, or product therefrom. (Ord. No. 1123, Sec. 2, 6-6-94) "Pushcart or Portable Vending Device Owner" means any person as defined herein owning or controlling one (1) or more pushcarts and who: (1) Conducts or permits or causes the operation of such pushcarts) or portable vending device(s) for vending food, beverage or product; (2) Owns, operates, controls, manages, or leases such pushcarts) or portable vending device(s); or REV: 7-2003 LU -2-87 TUSTIN CITY CODE ZONING 9297 (3) Contracts with persons to vend food, beverage or product from such pushcart(s) or portable vending device(s). (Ord. No. 1123, Sec. 2, 6-6-94) "Recyclable Material" is reusable material, including but not limited to metals, glass, plastic and paper, which are intended for reuse, remanufacture, or reconstitution for the purpose of using the altered form. Recyclable material does not include refuse or hazardous materials. Recyclable material may include used motor oil collected and transported in accordance with Section 25250.11 and 25143.2(bX4) of the California Health and Safety Code and Orange ,ounty Fire and Health Departments. (Ord. No. 993, Sec. 1, 948-87) " e " "Recycled," "Recycling" or "Recyclable" means the reuse or refilling of empty beverage containers or the process of sorting, cleansing, treating, and reconstituting empty postfilled beverage containers for the purpose of using the altered form. "Recycle," "recycled," "recycling" "recyclable," does not include merely sorting, shredding, stripping, compressing, storing, landfilling with, or disposing of an empty beverage container. (Ord. No. 993, Sec. 1, 9-8-87) "Recycling Facility" is a center for the collection of recyclable materials. A Certified Recycling Facility means a recycling facility certified by the California Department of Conservation as meeting the requirements of the California Beverage Container Recycling and Litter Reduction Act of 1986. A recycling facility does not include storage containers or processing activity located on the premises of a residential, commercial, or manufacturing use and used solely for the recycling of material generated by that residential property, business or manufacturer. Recycling facilities includes the following: A "Collection Facility" is a center for the acceptance, by donation, redemption, or purchase, of recyclable materials from the public. Such a facility does not use power -driven processing equipment except as indicated in Section 4 Criteria and Standards. Collection Facilities "�'"` may include the following: 1. Reverse Vending Machines which occupy an area of not more than fifty (50) square feet. 2. Bulk reverse vending machines occupying no more than five hundred (500) square feet. 3. Large collection facilities which occupy a permanent building or store front. (Ord. No. 993, Sec. 1, 9-8-87) "Redemption" and "Redeem" means the return to a recycling center of an empty beverage container for a refund of at least the redemption value and any applicable redemption bonus. "Rest Home" means any premises licensed under Section 2300 of the Welfare and Institutions Code of the State of California. (Ord. No. 157, Sec. 11.37) "Rooming House"—See Boarding House. (Ord. No. 157, Sec. 11.38) "Sanitarium" means a health station or retreat or other place where patients are housed, and where treatment is given, but excluding mental institutions or institutions for treatment of persons addicted to the use of drugs. (Ord. No. 157, Sec. 11.39) REV 7-2003 LU -2-88 TUSTIN CITY CODE ZONING 9297 "Second Residential Unit" means a building or portion thereof designed for residential occupancy on a lot developed with a legal conforming single-family dwelling. (Ord. No. 1271, Sec. VIII, 6-2-03) "Service Station" means an occupancy which provides for the servicing of motor vehicles and operations incidental thereto, limited to the retail sale of petroleum products and automotive accessories; automobile washing by hand; waxing and polishing of automobiles; tire changing and repairing (excluding recapping); battery service, charging and replacement, not including repair and rebuilding; radiator cleaning and flushing, excluding steam cleaning and repair; installation of accessories; also including the following operations if conducted within a building; lubrication of motor vehicles; brake servicing limited to servicing and replacement of brake cylinders and brake shoes; wheel balancing; the testing, adjustment, and replacement REV: 7-2003 LU -2-88.1 l TUSTIN CITY CODE ZONING 9297 of carburetors, coils, condensers, distributor caps, fan belts, filters, generators, points, rotors, spark plugs, voltage regulators, water and fuel pumps, water hoses and wiring. (Ord. No. 157, Sec. 11.40) "Setback Lines means a line established by this Chapter to govern the placement of buildings or structures with respect to lot lines, streets or alleys. (Ord. No. 157, Sec. 11.41) "Side and Front of Corner Lots means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces. (Ord. No. 157, Sec. 11.42) "Signs" means any advertising display or structure. (Ord. No. 157, Sec. 11.43) "Small Animal Hospital or Clinic means a place where small animals, such as dogs, cats, birds, and the like, are given medical or surgical treatment. (Ord. No. 352, Sec. 2) "Special Event" means any commercial, civic, patriotic, religious, cultural, community or political event taking place on a specific date or dates or other such occurrence as determined by the Director of Community Development. (Ord. No. 1123, Sec. 2, 6-6-94) "Specialty Store'means a market or retail store other than convenience stores with fewer than 3,500 square feet in gross floor area with limited hours of operation, located in a retail center with more than three (3) retail tenants, that offers a combination of unique foods and beverages not commonly found in convenience or food markets or other retail stores for off-site use or consumption and where alcoholic beverage sales are incidental with no more than fifteen (15) square feet of the retail floor devoted to display of non -refrigerated alcoholic beverage sales for off-site consumption and no sales of refrigerated alcoholic beverages. (Ord. No. 1237, Sec. 2, 6-4-01) "Specified Anatomical Areas" shall mean: (1) Less than completely and opaquely covered: (a) Human genitals, pubic regions; (b) Buttock; and (c) Female breast below a point immediately above the top of the areola; and (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. No. 819, Sec. 1, 2-19-80) "Specified Sexual Activities" shall mean: (1) Human genitals in a state of sexual stimulation or arousal; and/or (2) Acts of human masturbation, sexual stimulation or arousal; and/or (3) Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast. (Ord. No. 819, Sec. 1, 2-19-80) REV: 7-2001 LU -2-89 TUSTIN CITY CODE ZONING 9297 "Street" means a public thoroughfare accepted by the City of Tustin, which affords principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, road and any other thoroughfare except an alley as defined herein. (Ord. No. 157, Sec. 11.44) "Street Line" means the boundary between a street right-of-way and property. (Ord. No. 157, Sec. 11.45) "Structure" means anything constructed or erected, the use of which requires location on or in the ground, or attachment to something having location on the ground, including swimming pools, excluding driveways, patios or parking spaces. (Ord. No. 157, Sec. 11.46) "Structural Alterations" means any change in the supporting members of a structure, such as bearing walls, columns, beams or girders. (Ord. No. 157, Sec. 11.47) "Supermarket" means a full -line, self-service retail store with gross annual sales of two million dollars ($2,000,000.00) or more, and which sells a line of dry grocery, canned foods, or nonfood items and some perishable items. (Ord. No. 993, Sec. 1, 9-8-87) "Travel Trailer" means a vehicle, other than a motor vehicle, which is designed or used for human habitation, and for travel or recreational purposes, which does not at any time exceed eight (8) feet in width and forty (40) feet in length and which may be moved upon a public highway without a special permit or chauffeur's license; or both, without violating any provision of the Vehicle Code. (Ord. No. 329, Sec. 2) "Travel Trailer Park" means any area or tract of land or a separate designated section within a mobile home park where one (1) or more lots are rented or leased or held out for rent or lease to owners or users of travel trailers or camp cars used for travel or recreational purposes. (Ord. No. 329, Sec. 2) "Unit" means any building designed or used for the shelter or housing of one (1) or more persons, and shall include apartments. (Ord. No. 790, Sec. 4, 2-20-79) "Use" means the purpose for which land or a building is designed, arranged, or intended or for which either land or building is or may be occupied or maintained. (Ord. No. 157, Sec. 11.49) "Use, Accessory" means a use incidental or subordinate to, and devoted exclusively to the main use of a lot or a building located on the same lot. (Ord. No. 157, Sec. 11.50) "Vend or vending" means offering food, beverage, or product of any kind for outdoor sale on any publicly or privately owned sidewalk, drive aisle, street, alley, or unenclosed place open to the public, including the movement or standing of a pushcart or portable vending device for the purpose of searching for, obtaining or soliciting retail sales of products. (Ord. No. 1123, Sec. 2, 6-6-94) "Vending Machines": A "Reverse Vending Machine" is an automated mechanical device which accepts at least one (1) or more types of empty beverage containers including, but not limited to aluminum cans, glass and plastic bottles, and issues a cash refund or a redeemable credit slip with a value REV. 7-2001 LU -2-90 TUSTIN CITY CODE ZONING 9298 not less than the container's redemption value as determined by the State. A Reverse Vending Machine may sort and process containers mechanically provided that the entire process is enclosed within the machine. (In order to accept and temporarily store all three (3) container types in a proportion commensurate with their relative redemption rates, and to meet the requirements of certification as a recycling facility, multiple grouping of Reverse Vending Machines may be necessary.) A 'Bulk Reverse Vending Machine" is a Reverse Vending Machine that is larger than fifty (50) square feet; is designed to accept more than one (1) container at a time; and will pay by weight instead of by container. (Ord. No. 993, Sec. 1, 9-8-87) "Yard" means an open space other than a court on the same lot with a building, which open space is unoccupied and unobstructed from the ground upward, except as otherwise permitted in Section 9271. (Ord. No. 157, Sec. 11.51) "Yard, Front" means a yard extending across the full width of the lot, the depth of which is �^^^. measured from the font line of the lot to the nearest line of the building, provided, however, �) that if any Oficial Plan Line has been established for the street upon which the lot faces, the front yard measurement shall be taken from such Official Plan Line to the nearest line of the building. (Ord. No. 353, Sec. 2) "Yard, Rear" means a yard extending across the full width of the lot and measured between the rear line of the lot and the nearest line of the main building. (Ord. No. 157, Sec. 11.53) "Yard, Side" means a yard between the side line of the lot and the nearest line of the building and extending from the front yard to the rear yard. (Ord. No. 353, Sec. 3) 0 C) 9298 INTERPRETATION AND ENFORCEMENT a Continuity of Law Except as specifically provided herein, this chgOter shall not be interpreted to repeal, abrogate, annul or in any way aff/or provision of any law or ordinance or regulations or permits previously aued relating to the erection, construction, moving, alteration or enlargement oor improvement; provided however, in any instances where this chapter imposstrictions upon the erection, construction, establishment, moving, alteration ort of buildings or the use of any building or structure that is imposed or reqxisting law, ordinance or regulation, the provisions of this chapter shall co . (Ord. No. 157, Sec. 12.1) b Criteria for Determination Whenever the Building tial, or Planning Commission of the City of Tustin is called upon to determine whether o not the use of land or any structure is any district is similar in character to the parti ar uses allowed in the district, the Commission shall consider the following factors as 'teria for their determination: (1) Effect upo the public health, safety and general welfare of the neighborhood involved and theCity at large REV. 1-2007 LU -2-91 Exhibit I Letter from McCormick, Kidman & Behrens, LLP, dated January 22, 2008 Honorable Chair and Members Planning Commission City of Tustin 300 Centennial Way Tustin, California 92780 Re: Supplemental January 22, 2008 Staff Report Dear Chair and Planning Commission members: LAGUNA HILLS OFFICE: 23601 MOULTON PARKWAY SUITE 220 LAGUNA HILLS. CALIFORNIA 92653 TELEPHONE (949) 454-2205 This letter is a very brief response to staff's January 22, 2008 Report and the assertions contained in it. Dr. Mirrafati will be presenting clear visual comparisons between his property and the "similar" properties cited in the report, which will support the unique nature of his property (which we believe the Chair acknowledged at the last meeting based upon his visual inspection). As he testified at the last meeting, Dr. Mirrafati has been denied the use of his property for almost four years. This escrow with Dr. Mehta has been open for about five months (since September 2007). The most recent Report is an example of the problems Dr. Mirrafati has encountered, since it does not even list the alternative of approving the project as of right because it does not front on El Camino Real. With that, we offer our comments. First, we stand by our statements and Dr. Mirrafati's testimony regarding the address of the building. Second, the Report is wrong about the vehicular access. Access is off El Camino Way. The "driveway" which opens onto El Camino Real practically is for egress only. Third, in using the common meaning of "fronting" and "frontage," the Report cites only those definitions in the Webster's dictionary that supports staff s position, ignoring other common meanings. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS H. L. (MIKE) MCCORMICK' 650 TOWN CENTER DRIVE ARTHUR G. KIDMAN RUSSELL G. BEHRENS' SUITE 100 SUZANNE M. TAGUE*' COSTA MESA, CALIFORNIA 92626 DAVID D. BOYER* TELEPHONES (714) 755-3100 DANIEL J. PAYNE* BRADLEY D. PIERCE* (800) 755-3125 ELIZABETH L. MARTYN• FAX (714) 755-3110 JOAN J. BENNETT www.mkblBwyers.com BOYD L. MILL EDDY R. BELTRAN MICHAEL D. CARTER HANNAH BENTLEY - TRAM T. TRAN JOHN P. GLOWACKI 'A PROFESSIONAL CORPORATION (CERTIFIED SPECIALIST - PROBATE January 22, 2008 ESTATE PLANNING 6 TRUST LAW THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION "OF COUNSEL Honorable Chair and Members Planning Commission City of Tustin 300 Centennial Way Tustin, California 92780 Re: Supplemental January 22, 2008 Staff Report Dear Chair and Planning Commission members: LAGUNA HILLS OFFICE: 23601 MOULTON PARKWAY SUITE 220 LAGUNA HILLS. CALIFORNIA 92653 TELEPHONE (949) 454-2205 This letter is a very brief response to staff's January 22, 2008 Report and the assertions contained in it. Dr. Mirrafati will be presenting clear visual comparisons between his property and the "similar" properties cited in the report, which will support the unique nature of his property (which we believe the Chair acknowledged at the last meeting based upon his visual inspection). As he testified at the last meeting, Dr. Mirrafati has been denied the use of his property for almost four years. This escrow with Dr. Mehta has been open for about five months (since September 2007). The most recent Report is an example of the problems Dr. Mirrafati has encountered, since it does not even list the alternative of approving the project as of right because it does not front on El Camino Real. With that, we offer our comments. First, we stand by our statements and Dr. Mirrafati's testimony regarding the address of the building. Second, the Report is wrong about the vehicular access. Access is off El Camino Way. The "driveway" which opens onto El Camino Real practically is for egress only. Third, in using the common meaning of "fronting" and "frontage," the Report cites only those definitions in the Webster's dictionary that supports staff s position, ignoring other common meanings. McCoRMICK, KIDMAN & BEHRENS, LLP LAWYERS Honorable Chair and Members Planning Commission City of Tustin January 22, 2008 Page 2 Merriam -Webster's online dictionary definitions: (http://www.m-w.com/) fronting front [2,verb] Function: verb intransitive verb 1: to have the front or principal side adjacent to something; also : to have frontage on something <a ten -acre plot fronting on a lake — Current Biography> 2: to serve as a front <fronting for special interests> transitive verb 1 a: confront <went to the woods because I wished ... to front only the essential facts of life — H. D. Thoreau> b: to appear before <daily fronted him in some fresh splendor — Alfred Tennyson> 2 a: to be in front of <a lawn fronting the house> b: to be the leader of (a musical group) <appeared as a soloist and fronted bands> 3.kw <the house fronts the street> 4 <fronted the building with bricks> frontage Function: noun 1 a: a piece of land that lies adjacent (as to a street or the ocean) b: the land between the front of a building and the street c: the len of a frontage Fourth, we have found two cases which seem relevant here and which support Dr. Mirrafati's position and Dr. Mehta's application. In an older appellate court case, the court discusses in detail the ideas of "frontage" and "fronting (Adrian v. Guyette (1936) 14 Cal. App. 2d 493, 501-504). There, the court addressed the issue of when property fronts on a highway and, where it is bounded by three public streets, whether it fronts on one or more of them. The court's discussion took into account the principal means of ingress and egress with the connecting streets and concluded that a building with multiple principal entrances can be found fronting more than one street. The court concluded in Adrian v. Guyette that "the frontage of the buildings and the use made of the structures MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS Honorable Chair and Members Planning Commission City of Tustin January 22, 2008 Page 3 erected on the land should determine the frontage of the entire property ... As the property in question consisted of both the land and the buildings, the use made of the property and the established entrance to the building should determine the front." Id. In this case, there are not multiple entrances, but only one entrance, off El Camino Way. Therefore, the established entrance of the building is not on El Camino Real and that "the use made of the structures erected on the land should determine the frontage of the entire property." Id. In addition, the driveway to the building is off El Camino. Way as well. As one case notes, "[i]t would be absurd to hold that a driveway coming from the street to the side of the building was not its entrance." Newton v. Thomas, (1955) 137 Cal. App. 2d 748, 760. In City of Nat'l City v. Wiener (1992) 3 Cal. 4th 832, 837, the Court discusses "frontage" in terms of the front of a business and its orientation and not whether a business abuts a street. Fifth, the photographs which we have taken in the last two days do not support the Staff's claim that dire consequences will result if the Planning Commission acknowledges what visually is clear: this building does not front onto El Camino Real. Because this situation does not involve a typical "corner lot," there will not be 20 corner lots effect and the Zoning Code will not be undermined. Please compare a photograph of the property at issue here to photographs of several other properties cited by staff. Finally, as indicated in his letter, Dr. Mehta is willing to make both interior and exterior improvements. Ms. Kapadia's working file indicates staff discussed such interior changes with him (i.e. handicapped restrooms, for example) but did not raise the issue of exterior improvements. Therefore, we ask that the Planning Commission adopt an alternative not listed by staff: Determine that the property does not front on El Camino Real, acknowledge that the use is as of right, and work with Dr. Mehta to make exterior improvements. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS Honorable Chair and Members Planning Commission City of Tustin January 22, 2008 Page 4 We ask that whatever its decision, the Planning Commission take action so, if necessary, this matter may be appealed to the City Council. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP eEfizabethL. Martyn John P. Glowacki ELM/JPG:ggg Copy: Elizabeth A. Binsack Director, Community Development Department ZAUsers Data\ggoodreau\mirrafati\ltrs\plancommJanuary 22.doc Exhibit J Map of Properties Subject to TCC 9233c(y) r/ a� F I U O +E a o 3 0 W 4w V a`� ro Ln 0)--o v S ■� ■� O E ca v 4' u v p' o a O 9�.� fo -0O �c o��oE� N OC70 UN awc+n v-1 L 1 L a cn V a o i�\ E_16--s-Lo � 77.fCr � av rr r i s .1d0 I I Ni �• ZA WaSy t•sav, ms,J J R a0 ORRE DdN ■ 3 - a J :� \ ``,. ,�.. 'rig;,�.-•, $"s'-1`y~°E����o �7 M1VRXs .ME 33 i f JI ( ff A1� �0 L jI I sn vo a3 Jw AL I0 1 1110111 Exhibit K Photographs of Potentially Affected Properties in Old Town 4p PMR 0 a w 41 -0 I 4 �i m I a I 4 • m a� LM (1) CL 0 L a ;74 o (f) r� aj .= E> ru a� Lod om 0 L no �a c W 0 imm (A 0 J 0 .E U w co a� 0 .E c� U w Exhibit L Letter to Dr. Mirrafati, dated August 2, 2004, and letter to Dr. Mehta, dated October 12, 2007 S community Development Department August 2, 2004 Sid J. Mirrafati, M.D. 1101 Bryan Avenue, Suite G. Tustin, CA 92780 RE: 705 EL CAMINO REAL (APN 401-641-02) Dear Dr. Mirrafati: City of Tustin 300 Centennial Way Tustin, CA 92780 714.573.3100 Thank you for your letter and preliminary plans 'received on July 7, 2004, requesting information related to property at 705 EI Camino Real also known as Assessor Parcel Number 401-641 -01. . In your letter and preliminary plans, you indicated that you plan to build a two-story 5,166 square foot office building in which the bottom floor will be occupied by your medical office and the second floor by business offices. You clarified per our conversation at the Planning counter that the existing commercial building would be demolished and replaced with the new building. The property is currently improved with a commercial structure relocated to the site in 1972 and is occupied by an office use. The property is designated "Old Town Commercial' by the Tustin General Plan, zoned Central Commercial and Combining Parking District (C -2P), and located within the Town Center Redevelopment Project Area. The project would need to comply with all development regulations, such as permitted and conditionally permitted . uses, setbacks, parking, design review provisions, and processes of the Tustin City Code (attached). Please note that Tustin City Code Section 9233.a(1)(g) allows for professional offices to be established in C -2P district provided that the office use is located above the ground floor and occupies less than fifty (50) percent of the total floor area. Office uses located on the ground floor or in over fifty (50) percent of the total floor area would require approval of a Conditional Use Permit. Tustin City Code 9233.e. requires findings to be made prior to the approval of a Conditional Use Permit for a ground floor office use. The findings would need to include supporting documents and evidence stating that an office use would be more compatible with the existing and planned uses within the vicinity than a retail commercial use on the subject property and that office use would be more beneficial in implementing applicable land use policies, such as the General Plan, and the Redevelopment Plan. Together, these documents seek to revitalize Old Town and encourage more retailing and pedestrian activity in Old Town. As Dr. Mirrafati August 2, 2004 Page 2 of 2 such, staff would not support ground floor office space. Your proposal should be revised to include 100 percent retail uses on the ground floor. When designing your project, please consider a site layout and architectural style that is similar to other structures in Old Town. For example, the new building should front onto EI Camino Real and El Camino Way with large storefront windows along both the front and side elevations. Parking and access should be located to the rear. The architectural style should be compatible to other commercial structures in Old Town particularly those located at the intersection of Main and El Camino Real and the upcoming development located at 14001 Newport Avenue. Community Development and Redevelopment Agency -staff would be happy to review any schematic or conceptual plans you may have and provide additional guidance to assist you in developing a formal submittal. With more detailed information, we will also be able to provide additional information regarding the process, timing, and fees that would be associated with the project. If you have any questions, please call me at 714-573-3174. Sincerely, Justina Willkom Associate Planner Attachments: 1. Tustin City Code Section 9233 (C-213) 2. Tustin City Code Section 9251 (Combining Parking District) 3. Tustin City Code Section 9272 (Design Review) cc: Karen Peterson POD: Zoning Letter Notebook SACddWUSTINAIcurrent planninglLetters-Memos1730 EI Camino Real.doc .4 goo, j ...-�`. CommunityDevelopment Depa rtment October 12, 2007 Dr. Ashok Mehta 13771 Newport Ave., Ste. 11 Tustin, CA 92780 City of Tustin 300 Centennial Way Tustin, CA 92780 714.573.3100 SUBJECT: ZONING VERIFICATION FOR 740 EL CAMINO REAL, TUSTIN, CA Dear Dr. Mehta: Thank you for your letter, received September 19, 2007, requesting zoning confirmation that a dental office can be established at the property located at 740 EI Camino Real in Tustin, also known as Assessor Parcel Number 401-641-01. The subject property is zoned Central Commercial with Combining Parking District (C-2 P) and designated as Old Town Commercial by the City's General Plan. Tustin City Code Section 9233 et. al. does not allow professional and general offices proposed at the ground floor level or over fifty (50) percent of the total building area to locate on properties fronting onto Main Street or EI Camino Real within the Old Town Commercial General Plan land use designation. To locate a dental office at the subject property, approval of a Conditional Use Permit is required and findings in support of the criteria listed in Section 9233c(y) would need to be made. The findings would need to include supporting documents and evidence stating that an office use would be more compatible with the existing and planned uses within the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies, such as the General Plan. Together,. these documents seek to revitalize Old Town and encourage more retail and pedestrian activity in Old Town. As such, staff may not be able to support your proposal for ground floor office In addition, the use must be in compliance with the parking requirement for medical -dental offices: one (1) space for each two hundred fifty (250) square feet of gross floor area for the first 4,000 square feet of medical space within a building or center. If you have any questions with regards to this letter, please feel free to contact me at (714) 573- 3118. Si erely, �r #eina Kapadia Assistant Planner Attachment: TCC Section 9233: Central Commercial (C-2) S:\Cdd\Reina\Zoning Confirmation\740 EI Camino Real.doc Exhibit M City Council Resolution No. 08-22 RESOLUTION NO. 08-22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN UPHOLDING THE PLANNING COMMISSION DECISION DENYING WITHOUT PREJUDICE CONDITIONAL USE PERMIT 07-020 TO AUTHORIZE A DENTAL OFFICE LOCATED AT 740 EL CAMINO REAL IN THE CENTRAL COMMERCIAL (C-2) ZONE AND FRONTING ONTO EL CAMINO REAL I. The City Council of the City of Tustin does hereby resolve as follows: A. That a proper application, Conditional Use Permit 07-020, was filed by Dr. Ashok Mehta, requesting authorization to establish a dental office in an existing stand-alone building at 740 EI Camino Real. That the property fronts onto EI Camino Real, is located in the Central Commercial (C-2) zoning district, and is designated as Old Town Commercial by the General Plan Land Use Policy Map; B. That a public hearing was duly called, noticed, and held for said application on December 11, 2007, by the Planning Commission; C. That at the December 11, 2007, public hearing, the applicant's legal counsel submitted correspondence and a Public Records Act request to the Planning Commission; D. That the Planning Commission continued the project to the January 8, 2008, meeting to allow the Planning Commission and City staff time to review and respond to correspondence and the Public Records Act request; E. That at the January 8, 2008, public hearing, the Planning Commission continued the project to the January 22, 2008 meeting, in order to conduct further research as to whether a conditional use permit was required; F. That at the January 22, 2008, public hearing, the Planning Commission adopted Resolution No. 4079, denying Conditional Use Permit 07-020; G. That on January 29, 2008, the property owner's legal counsel submitted a letter of appeal of the Planning Commission's denial of Conditional Use Permit 07-020; H. That a public hearing was duly called, noticed, and held for said application on March 4, 2008, by the City Council; That pursuant to Tustin City Code Section 9233c(y), professional and general offices fronting onto Main Street or EI Camino Real and located Resolution No. 08-22 CUP 07-020 March 4, 2008 Page 2 within the Old Town Commercial General Plan land use designation are conditionally permitted, subject to certain use criteria; J. That Tustin City Code does not define "fronting" and that the City Council has considered available definitions contained in the Tustin City Code and Webster's Dictionary to determine the meaning of "fronting" as follows: "Lot Front" is defined as "the narrowest dimension of a lot fronting on a street," which in the case of the subject property, is the portion of the lot fronting on EI Camino Real. "'Side and Front of Corner Lots' means the narrowest frontage of a corner lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the dwelling faces." Webster's Dictionary defines "frontage" as "Land adjacent to a building, street." In the case of the subject property, the land is adjacent to both EI Camino Real and EI Camino Way, thus it is fronting upon both streets. K. That the City Council determines that, like any property with any portion of the lot fronting on to EI Camino Real or Main Street and located within the Old Town Commercial General Plan land use designation, the subject property is subject to Tustin City Code Section 9233c(y). L. That the subject property fronts on EI Camino Real, therefore a conditional use permit is required to establish a dental office at the subject location. M. That the City Council has considered the matter and determined that the proposed project does not meet finding requirements needed to support the conditional use permit, in that: 1. Pursuant to Tustin City Code Section 9233c(y)(1), professional offices proposed at the ground floor level shall not be approved unless the approving authority finds, based on supporting documentation and evidence, that an office use would be more compatible with the existing and planned uses in the vicinity than a retail commercial use on the subject property and that an office use would be more beneficial in implementing applicable land use policies such as the Tustin General Plan, Tustin City Code, and any Tustin Community Redevelopment Agency Project Area Redevelopment Plan than a retail commercial use on the subject property. Resolution No. 08-22 CUP 07-020 March 4, 2008 Page 3 While some of the documentation may support approval of the conditional use permit, insufficient and/or inconclusive evidence exists to meet finding requirements that an office use would be more compatible than a retail commercial use on the subject property. In addition, approving an office use would not be more beneficial in implementing applicable land use policies such as the City Code and General Plan, as outlined below. 2. Pursuant to Tustin City Code Section 9233c(y)(2), approval of professional and general office uses shall meet one or more of the following criterion: a. The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office uses pursuant to an approved building permit. The original building permit does not exist, but records dating back to 1972 indicate that the building was occupied as an office since the building was relocated to and first occupied in Tustin. The last business license issued for this property prior to the establishment of a tutoring facility was for EI Camino Chiropractic whose business license expired in 1995. Thus, the office use has lapsed for more than twelve (12) consecutive months and pursuant to Tustin City Code Section 9273 (Non -conforming Structures and Uses) any subsequent use shall comply with current City Code. The intent of a non -conforming code in the City's Zoning Code is to permit the continuation or maintenance of a building and/or use to enjoy the benefit of a prior right/regulations until such time that a building and/or use is no longer used for the prior purpose, at which time the use and/or building should be brought into compliance with current codes. To further the non -conformity of a use and/or building does not meet the intent or purpose of a non -conforming code section and may set a precedent for other nonconforming sites when the use has been discontinued and the desire is to reestablish a non- conforming use contrary to the standards set forth in the Zoning Code and goals and objectives of the General Plan. On October 9, 2006, the Zoning Administrator approved CUP 06- 014, permitting a tutoring and counseling facility including a retail area, which currently occupies the building and further invalidating the continuance of the property as an office use. Resolution No. 08-22 CUP 07-020 March 4, 2008 Page 4 b. The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments. The existing building's site and orientation at the prominent crossroads of EI Camino Real and EI Camino Way at the entry to Old Town Tustin make it a prime location for a retail establishment. The property, with minor modifications, presents a significant potential for retail uses or for redevelopment of the site to accommodate retail at least at the ground floor. Approving another office use at this location would lengthen the non- conforming use indefinitely and hinder the potential for retail or redevelopment. Evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish new office uses. There is inadequate evidence that modifying the building to accommodate retail uses is impractical. c. The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments. The existing building, with some modifications, could be suitable to accommodate service-oriented retail uses that are outright permitted in the C-2 zone. The building is currently oriented towards the interior of the lot, but the addition of some storefront elements along the elevation on EI Camino Real could feasibly transform the structure to accommodate retail by capitalizing upon its corner location. However, establishment of a dental office at this location would necessitate tenant improvements to the building, thereby impairing the opportunity for retail at this location in the reasonable and foreseeable future. Also, evidence presented by the applicant about the cost to modify or alter the building to accommodate retail establishments indicated that the costs were similar to the costs to establish proposed new office uses. There is inadequate evidence that modifying the building to accommodate retail establishments is economically infeasible or impractical. d. The proposed use is to be located in a multi -tenant retail center and is ancillary but complementary to the remaining mixed uses with respect to type of use, hours of operation, convenience, and parking demand. Resolution No. 08-22 CUP 07-020 March 4, 2008 Page 5 This criterion is not applicable, since the proposed use is to be located in a single -tenant building. However, the site is located adjacent to EI Camino Plaza and other shopping centers, which feature a large variety of retail commercial operations. e. The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments. The subject property is located within the Old Town Tustin District, which is a walkable neighborhood district. The intent of the office provision in the C-2 zoning district is to encourage pedestrian activity in the retail area. Although the applicant has indicated that the dental office use would bring increased foot traffic to the area, the nature of the patron for this type of activity is more single -use oriented than a multi -trip retail customer that might visit a travel agency or bank, or drop off children at an educational/tutoring facility, for example. The proposed use is not complementary to surrounding retail establishments in that office uses do not encourage pedestrian activity in the neighborhood in the same way that retail or service-oriented uses do. 4. The proposed project must be determined to be in conformance with the City's General Plan. The project as proposed appears to be in direct conflict with the following policies set forth in the Land Use Element of the General Plan: Provide for and encourage the development of neighborhood -serving commercial uses in areas of Tustin presently underserved by such uses. Encourage the integration of retail or service commercial uses on the street level of office projects (Policies 1.2 and 10.6). Encourage the elimination of non -conforming uses and buildings (Policy 4.4). The project proposal is for a dental office to fully occupy a single - story building located in an area identified for retail commercial uses. The Old Town neighborhood has been recognized by the City Council and Chamber of Commerce as underserved by retail commercial uses. The proposed use does not further the land use goals set forth in the General Plan because it does not fill a land use need of the neighborhood. Tustin City Code Amendment 06-004 was adopted to address this deficiency and encourage much- needed retail uses in the heart of Old Town Tustin. In addition, grating the CUP for an office use would further the non -conforming status of the property, in direct conflict with General Plan Policy 4.4. Resolution No. 08-22 CUP 07-020 March 4, 2008 Page 6 The City's zoning code and general plan provide for several areas throughout the City where professional offices may locate. Dental offices are permitted outright in the Professional (Pr), Retail Commercial (C-1), and Commercial General (CG) zoning districts, as well as in the Central Commercial (C-2) district when not fronting on to Main Street or EI Camino Real and located outside of the Old Town Commercial General Plan land use designation. N. That the project is categorically exempt pursuant to Section 15270 (Projects Which are Disapproved) of the California Code of Regulations (Guidelines for the California Environmental Quality Act); II. The City Council hereby upholds the Planning Commission decision denying without prejudice Conditional Use Permit 07-020 to authorize a dental office in an existing building at 740 EI Camino Real in the C-2 zoning district and Old Town Commercial General Plan designation. JERRY AMANTE MAYOR PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 08-22 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 4th day of March, 2008 by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK EXHIBIT N Interoffice Memo from City Clerk and letter from McCormick, Kidman.& Behrens, dated February 27, 2008 **-—.,1ot DATE: FEBRUARY 28, 2008 nter - C O m TO: MAYOR AMANTE AND MEMBERS OF THE CITY COUNCIL FROM: MARIA HUIZAR, DEPUTY CITY CLERK6� SUBJECT: APPEAL OF PLANNING COMMISSION DENIAL OF CONDITIONAL USE PERMIT 07-020 The City Clerk has received correspondence from McCormick, Kidman & Behrens, LLP, legal counsel to Dr. Sayed Mirrafati, owner of the property subject to this application. The letter, which sets forth the grounds for the appeal of the Planning Commission denial of Conditional Use Permit 07-020, was received at the City on February 27, 2008. This letter has been forwarded to the Community Development Department and City Attorney's office. Due to the late submission of the letter, there has not been sufficient opportunity to review the submitted materials in depth and thus the materials have not been addressed in the Agenda Report. However, based upon initial review of the matter, the letter repeats many of the arguments that have been previously made, and most if not all of the issues raised in the recent letter appear to have been addressed in the Report to the Council dated March 4, 2008. Additional material may be submitted to the City Council after staff has the opportunity to review the letter. Attachment: Letter from McCormick, Kidman & Behrens, dated February 27, 2008 S:\Cdd\Reina\CUP\CUP 07-020 740 EI Camino Real\EBMemotoWAH.doc MCCoRmicK, KIDMAN & BEHRENS, LLP LAWYERS H. L. (MIKE) McCORMICK" ARTHUR G. KIDMAN* RUSSELL G. BEHRENS' SUZANNE M. TAGUE*t DAVID D. BOYER* DANIEL J. PAYNE* BRADLEY D. PIERCE* ELIZABETH L. MARTYN* JOAN J. SENNETT BOYD L. HILL EDDY R. BELTRAN HANNAH BENTLEY** TRAM T. TRAIN JOHN P. GLOWACKI KARA E. GERMANE 'A PROFESSIONAL CORPORATION tCERTIFIED SPECIALIST - PROBATE ESTATE PLANNING 6 TRUST LAW THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION -OF COUNSEL Via personal delivery City Clerk City of Tustin 300 Centennial Way Tustin, California 92780 650 TOWN CENTER DRIVE SUITE 100 COSTA MESA, CALIFORNIA 92626 TELEPHONES (714) 755-3100 (800) 755-3125 FAX (714) 755-3110 www.mkblawyers.com February 27, 2008 CITY OF TUS-T4N,- HILLS OFFICE: 23601 MOULTON PARKWAY SUITE 220 2008 FEB 2lLAti L1NAHHVy 949) 454-2205CALIFORNA 653 Re: Sayed Mirrafati, M.D. Planning Commission Resolution No. 4079 (CUP 07-020) Dear Sir or Madam: Please allow this correspondence to present the evidence in support of the appeal filed by Dr. Sayed Mirrafati of the City of Tustin Planning Commission's denial of CUP 07-020 by Resolution No. 4079. As set forth in Dr. Mirrafati's appeal letter, and pursuant to Tustin City Code section 9294, he appeals: (1) the Planning Commission's determination that a Conditional Use Permit is necessary for a dental office at 740 El Camino Real in Tustin; and, (2) the Planning Commission's denial of Dr. Ashok Mehta's application for a Conditional Use Permit for his dental practice at 740 El Camino Real in Tustin, CUP 07-020 and Resolution No. 4079. This letter sets forth the grounds for the appeal. With the Council's permission, additional evidence will follow under separate cover up to and through the hearing of this matter. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 2 I. Background. The three Staff Reports do not contain all the relevant facts. Dr. Mirrafati is a cosmetic surgeon who has practiced in Tustin for many years. He purchased 740 El Camino Real ("the Property") in August 2004; the building previously had alternate addresses on both El Camino Real and EI Camino Way. The building was moved to its current location in 1972. At the time Dr. Mirrafati purchased the building, it was being used as professional offices for an engineering firm. Before that, the property housed an osteopathic doctor and a chiropractor. Dr. Mirrafati purchased the building in order to relocate his own office there. Before buying the property, Dr. Mirrafati confirmed with Planning Staff that the office building on the property could be used for a physician's office. In 2005, he provided the City with architectural drawings for his own office at the Property. Planning Staff indicated, over the course of the next year, that they would "work with" Dr. Mirrafati. Staff also represented that pending amendments to the Tustin Municipal Code would support his proposal. Now, the only reason Planning Staff puts forth in the various Reports that the office use lapsed is this delay by Planning Staff while the amendments were implemented. By 2006, Dr. Mirrafati determined that he would sell the property because of the position taken by Planning Staff. However, when potential buyers approached the City to inquire about uses, they were told that at least fifty percent (50%) retail use was required at the Property. Earlier, Planning Staff administratively granted a Conditional Use Permit ("CUP") for the property for Tutor Whiz. Tutor Whiz is not a retail operation, but primarily offices, and only incidentally sells study materials as part of its educational programs. This CUP remains in effect but apparently staff does not consider the use to be "long-term." In fact, Tutor Whiz is vacating the Property, at which point the Property will sit empty indefinitely. In late 2007, Dr. Mirrafati finally found another buyer for the property — at a reduced price. Dr. Mirrafati and Dr. Mehta have finalized a purchase -sale agreement for the property and have entered into escrow. As a condition of his purchase, Dr. Metha, who also practices in Tustin, seeks to relocate his dental practice within the City to the Property. When Planning Staff told him he could not do so without a CUP, he applied for CUP 07-020. To obtain permission, Dr. Mehta has graciously agreed to extend the escrow period by several months. II. No CUP is Necessary. With that background, Tustin City Code section 9233 comes to the foreground. That section states that professional offices are permitted in the Central Commercial District. Section 9233, subsection (y) only requires a CUP for: MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 3 "Professional and general offices fronting onto Main Street or El Camino Real and located within the Old Town Commercial General Plan land use designation, subject to the use criteria for office development provided herein..." (Emphasis added.) As Resolution No. 4079 acknowledges, the Tustin City Code never defines the phrase "fronting onto" or the term "fronting." (Res. No. 4079, ¶ I -G.) The first definition in Merriam - Webster's Online Dictionary for the term "fronting" is: "to have the front or principal side adjacent to something." (Emphasis added.) The definitions relied upon by the Planning Commission either do not apply, in the case of definitions taken from elsewhere in the Tustin City Code, or are incomplete, as in the case of the definition taken from Webster's Dictionary. The office building on the Property inarguably faces El Camino Way, not El Camino Real. The entrance to the parking lot is on El Camino Way; the only door faces directly toward El Camino Way; the only path from the parking lot to the door faces El Camino Way; the principal windows face El Camino Way. The "front" and "principal side" of the buildingon the Property face directly away from El Camino Real and towards El Camino Way. (Exh. A, photographs of the Property taken from El Camino Way.) Indeed, the only portion of the building that faces El Camino Real is certainly its backside: there are only a few small windows facing El Camino Real; no door faces El Camino Real; no parking lot faces El Camino Real, but only an exit from the lot. (Exh. B, photographs of the Property taken from El Camino Real.) The Planning Commission determined that the Property is "fronting onto" both El Camino Real and El Camino Way because it is adjacent to both streets. (Res. No 4079, ¶ I -G.) This determination ignores the plain meaning of the word "fronting" as explicitly referring to "the front or principal side" of a building. There is no credible argument that the building faces El Camino Real. When moved from its prior location, the building was plainly oriented to face El Camino Way. Indeed, while appellant does not contend it is dispositive on the issue, Dr. Mirrafati will testify and provide correspondence demonstrating that the Property's address was on El Camino Way at the time he purchased it. It was only after he purchased it that the City approached him and asked him to change the address to one on El Camino Real "to avoid confusion." The City did not mention the impact this change would have on the ability to develop the property. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 4 Furthermore, the Planning Commission determined that, "any property with any portion of the lot fronting on to El Camino Real or Main Street ... is subject to Tustin City Code Section 9233(y)." (Res. No. 4079, ¶ I -H.) Planning Staff compared the Property to several nearby buildings at page four of the Staff Report submitted prior to the January 22, 2008, meeting. Each comparison was inappropriate. As shown in the photographs submitted herewith, the front or principal sides of each other building — Tustin Glass, Tustin Garage, and Quinn's — inarguably face El Camino Real. (Exh. C, photographs of comparison properties.) It is plain to see from the photographs that there is no credible argument that any one of those businesses occupied space that is not "fronting onto" El Camino Real. Based on the foregoing, no CUP is necessary here. In the Commercial General zoning district, a dental office is a use as of right. Appellant urges the City Council to determine that the Planning Commission's determination that the Property is "fronting onto" El Camino Real was erroneous. The property is unique among the buildings in the Old Town Commercial General Plan land use designation in the Central Commercial (C-2) zoning district. It should be treated accordingly. III. The Requirements for a CUP Have Been Satisfied. Even if a CUP were necessary to operate a professional office at the subject property, the requirements for issuing a CUP have been met. Resolution No. 4079 inadequately addresses the factors set forth in Tustin Municipal Code section 9233, subsection (y). As to subsection (y)(1), the professional office use would be more compatible with existing and planned uses in the vicinity than retail commercial use on the subject property. This final phrase is crucial, as it underscores the only possible intent of subsection (y): to carve out a statutory exception for properties that simply do not fit into the City of Tustin's scheme for this neighborhood_ The same must be said for the second portion of subsection (y)(1), as the proposed office use would be more beneficial in implementing applicable land use policies on the subject property. Subsection (y)(2) articulates the specific scenarios under which subsection (y)(1) is satisfied. Any other reading of the ordinance would render subsection (yx2) meaningless, as the City would never have any occasion to implement the recently -added statutory exception articulated in great detail in subsection (y). That is to say, when any of the five criteria set forth in subsection (y)(2) is satisfied, then the finding necessary under subsection (y)(1) to approve the requested CUP arises. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 5 Certainly, Resolution No. 4079 is woefully inadequate in explaining the Planning Commission's determination. It acknowledges evidence supporting approval of the CUP but blandly labels that evidence "insufficient and/or inconclusive" without any analysis at all. These conclusory statements do not justify denying this property owner his rights. The reality is that a dental practice would fit very nicely into the area. As the evidence submitted to the Planning Commission showed, and as the evidence that will be submitted on this appeal will show, a dental practice encourages retail traffic in the neighborhood. Indeed, this conclusion is practically self-evident, as it is quite common for a parent or adult patient to run errands in the neighborhood before, during, and after dental visits. Given the economic and practical realities discussed below, Dr. Mehta's dental practice would be an ideal neighbor. A. Subsection (y)(2)(a): Office Use. Moving specifically to the five criteria under subsection (y)(2), subsection (y)(2)(a) states: "The proposed use is to be located in an existing building originally designed, built, and occupied as offices or converted to office use pursuant to an approved building permit." It is undisputed that the existing building on the Property was originally designed, built, and occupied as offices. Planning Staff acknowledges a history of office use as far back as 1972, and the office use continues to the present day. Architect Richard Crane testified before the Planning Commission and will testify to the full Council, in part, that the existing building is laid out as an office. Internal photographs to be submitted on this appeal underscore this testimony, as do the plans submitted with the original application. There is no retail storefront and the layout inside the building is not conducive to a retail use; rather, the exterior and interior of the building on the Property are ideal for an office - professional use. Multiple real-estate agents and brokers have dealt with the Property, and all have and will testify that inquiries on the property when exposed to the market have been predominantly from office -professional users. The only retail users who have inquired have sought extensive renovations by Dr. Mirrafati as a condition of sale or required short-term leases in order to ascertain the viability of a retail concern at the Property. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 6 Resolution No. 4079 entirely ignores the facts set forth above and the language of Tustin City Code section 9333, subsection (y). Instead, the Resolution and Staff Reports focus only on the purported lapse of the non -conforming use. As noted above, the only reason an argument that office use lapsed for more than twelve (12) months after adoption of the new retail requirements, is that Planning Staff delayed Dr. Mirrafati's progress. Indeed, Tutor Whiz is a predominantly office use as opposed to retail, and that CUP was granted weeks before the new ordinance took effect. As such, pursuant to Tustin City Code section 9273, the purportedly nonconforming use is "grandfathered" into compliance. The Property meets the criterion in subsection (y)(2)(a) and, as such, a CUP is warranted. B. Subsection (y)(2)(b): Design and Orientation. Subsection (y)(2)(b) states, "The proposed use is to be located in an existing building that because of its design and orientation is impractical to modify or alter to accommodate retail establishments." The evidence establishes that the Property meets this criterion. Again, Architect Crane has testified and will testify that the existing building is designed and oriented for office -professional use. The real-estate agents have and will testify similarly, and add that inquiries from potential lessees and purchasers have been almost exclusively office - professional in nature. And, of course, the photographs and plans submitted to the Planning Commission and City Council amply demonstrate the simple fact that the Property contains an office -professional, not a retail, building. There can be no dispute that this is an office - professional building. Furthermore, the building faces directly away from El Camino Real. No retail elements face El Camino Real to entice automobile or pedestrian retail traffic. The only evidence on this point will show that modifying or altering the existing office -professional building on the Property for retail use would cost more than $450,000. Dr. Mirrafati only paid approximately $600,000 for the Property. Spending three-quarters of the purchase price to convert a building is the very definition of impractical as used in subsection (y)(2)(b). Resolution No. 4079 concludes that the building is a "prime location for a retail establishment," and that may well be true based only on its location. However, subsection (y)(2)(b) does not contain the word "location" anywhere at all, but instead focuses on the "design and orientation" of an "existing building." No evidence supports the Resolution's conclusion that "minor modifications" would be sufficient for retail use. Indeed, the Resolution is borderline incomprehensible when it suggests that "minor modifications" might include adding a story or stories to the building. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 7 While the costs for modification to support a professional use might approach the costs for modification to create a wholly -new retail use, Resolution No. 4079 ignores the evidence submitted showing that potential buyers are willing to undertake the former cost but not the latter. Subsection (y)(2)(b) does not call out whether or not modification is "possible" — indeed, any building could be torn down and a new building raised — but rather speaks to whether or not modification is "impractical." Practicality must include economics and market forces, both of which compel an office -professional use in the existing building. Balanced against testimony from Dr. Mirrafati, Dr. Mehta, Architect Richard Crane, and Real Estate Agent J.R. Shah, Resolution No. 4079 is supported by no evidence. Plainly, the Property satisfies subsection (y)(2)(b) and the CUP is warranted. C. Subsection (y)(2)(c): Economic Feasibility. Subsection (y)(2)(c) states, "The proposed use is to be located in an existing building requiring significant reconstruction that is not economically feasible or practical to accommodate retail establishments." This criteria is similar to subsection (y)(2)(b) and the critical facts are the same. Evidence from Architect Crane and Real Estate Agent Shah establishes that the existing building would require significant reconstruction to accommodate any retail use and it is not economically feasible. Architect Crane and Real Estate Agent Shah both testified, and will testify again, to the feasibility and practicality of placing a retail establishment in the existing building. In sharp contrast, Resolution No. 4079 and the Staff Reports it is based upon lack any evidence of feasibility or practicality. Resolution No. 4079 basically ignores the pertinent language of the ordinance in favor of self-serving, groundless assertions. The Resolution suggests that the multi -room office building could accommodate retail with, "the addition of some storefront elements along the elevation on El Camion Real." If that were the case, potential retail users would be lining up to purchase the property. That is simply not the case. Placing a sign on a bare wall will not transform this office -professional building into retail space. Truly converting the building into a retail space would require significant reconstruction including replacement of support structures, or, to do it right, completely tearing the building down and replacing it. The Resolution unconvincingly argues, without evidentiary support, that tenant improvements necessary to accommodate the dental practice would render the building less compatible with retail use. That argument begs the question, however, and ignores the critical point: there are no businesses interested in acquiring this Property for retail use in the first place. MCCoRmicK, KIDMAN & BEHRENs, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 8 By suggesting that modifications might render the Property into retail space, Resolution No. 4079 acknowledges in its comments on this element that the current use is as an office and that the building's design and orientation are best suited to office use. There is no evidence that modification to a retail use is economically feasible or practical; all the evidence cuts the other direction. The Planning Commission's determination that this criterion is not satisfied lacks support. As stated above, the evidence has and will show that modifications for retail use would cost, conservatively, $450,000. That is simply not economically feasible or practical. The Property satisfies subsection (y)(2)(c) and the CUP should be granted. D. Subsection (y)(2)(e): Fitting in with the Neighbors. Subsection (y)(2)(e) states, "The proposed use is determined to be beneficial, complementary, and compatible with surrounding neighborhood and nearby retail establishments." The Resolution states, in analyzing subsection (y)(2)(e), that a dental practice would not attract "multi -trip retail" customers to the extent that a travel agency or tutoring facility would attract. This is mere conjecture based on no evidence at all. One might just as easily conclude that patrons of dental offices do visit additional businesses in the same trip. That a dental practice attracts multi -trip retail customers is self-evident. The Resolution's blanket refusal to acknowledge this basic point demonstrates the Planning Commission's absolute, unwavering, and predetermined intent to deny the CUP regardless of the facts. IV. Potential Resolutions. Dr. Mirrafati has approached the City on numerous occasions through the Planning Staff and Planning Commission legal counsel to discuss compromising this matter. Despite issuing a Request for Proposals in the mid -1990's for a potential redevelopment project encompassing the Property, the City apparently is disinterested in utilizing redevelopment resources to assist any owner in transforming the Property to conform to the City's vision for the Old Town area. That is unfortunate, as Resolution No. 4079 makes clear that the City views this property as the "gateway" to Old Town Tustin. View as a whole, Resolution No. 4079 and the three Staff Reports submitted to the Planning Commission on CUP 07-020 suggest that the repeated refusals to let Dr. Mirrafati make use of his property are based in something other than fact. Planning Staff steadfastly refused to consider the evidence submitted to it. Based on the record, affirming the Planning Commission's denial of CUP 07-020 would constitute an abuse of discretion. Dr. Mirrafati intends to pursue his rights in the Property as far as the law permits. MCCORMICK, KIDMAN & BEHRENS, LLP LAWYERS City Clerk, City of Tustin Re: Sayed Mirrafati, M.D. February 27, 2008 Page 9 At this point, Dr. Mirrafati simply wants to part ways with the Property and move on to a different project. Dr. Mehta, meanwhile, desires strongly to move his existing dental practice from elsewhere in Tustin to the property. Given the dearth of retail interest in the property and the length of time it sat on the market, the reasonable solutions seem to be for the City either to: (1) acknowledge that this Property does not front on El Camino Real such that the dental practice is permitted as of right; or, (2) to invoke the statutory exception it recently adopted in Tustin City Code section 9233(y) and grant the requested CUP 07-020. Either determination would only benefit the City, the parties to the transaction, the neighboring businesses, and the residents of the City of Tustin. We respectfully hope the City Council will reverse the determination of the Planning Commission in Resolution No. 4079 and grant the requested relief. Very truly yours, McCORMICK, KIDMAN & BEHRENS, LLP 0�/ ;LIZABE/TH L. MARTYN JOHN PAUL GLOWACKI JPG:ddb Enclosures as stated cc: Sayed Mirrafati, M.D. (via U.S. Mail) David Kendig (via electronic mail at dkendig@wss-law.com and U.S. Mail) �l oto 6 49