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HomeMy WebLinkAboutPC Minutes 10-28-08MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION OCTOBER 28, 2008 7:00 p.m. CALL TO ORDER Given INVOCATION AND PLEDGE OF ALLEGIANCE ROLL CALL Present: Chair Puckett Chair Pro Tem Kozak Commissioners Kasalek, Murray, Thompson Staff present Elizabeth A. Binsack, Community Development Director David Kendig, Deputy City Attomey Kendra Camey, Deputy City Attomey Steve Lewis, Tustin Police Department Dana Ogdon, Assistant Community Development Director Terry Lutz, Principal Engineer Justina Willkom, Principal Planner Scott Reekstin, Senior Planner Amy Thomas, Senior Planner Alice Tieu, Associate Planner Cari Meyer, Assistant Planner Gordon Margulies, Tustin Police Department Brad Steen, Code Enforcement Officer Eloise Hams, Recording Secretary None PUBLIC CONCERNS CONSENT CALENDAR Approved 1. APPROVAL OF MINUTES -OCTOBER 14, 2008, PLANNING COMMISSION MEETING. It was moved by Murray, seconded by Thompson, to approve the Consent Calendar. Motion carved 5-0 PUBLIC HEARINGS Continued to 2. CONDITIONAL USE PERMIT 08-018 A REQUEST TO November 12, 2008, ESTABLISH A MASSAGE ESTABLISHMENT. THIS Planning Commission PROJECT IS LOCATED AT 1076 EAST FIRST STREET, meeting SUITE C, IN THE RETAIL COMMERCIAL (C-1) ZONING DISTRICT. Minutes -Planning Commission October 28, 2008 -Page 1 RECOMMENDATION: That the Planning Commission adopt Resolution No. 4101 approving CUP 08-018. 7:12 p.m. The Public Hearing opened. Meyer Presented the report. Thompson Asked for background and comparison between the previous use and what is being proposed. Meyer Responded that the business license records indicate that the previous use was acupuncture, which has similar requirements regarding parking. Thompson Asked for an explanation the training certificates required by the Tustin City Code. Reekstin Stated that massage technicians are required to obtain a massage permit from the City; in order to be eligible for this permit, the applicant must complete 1,000 hours of massage training from a recognized massage school and must also pass the National Certification Board examination for massage; this exam is administered throughout the country; if those requirements are met, an application may be submitted; these applications go through a rigorous process; for example, the Police Department does a background check that includes fingerprinting, past residences, past employment history, etc. Thompson Asked if there was a similar evaluation of the current applicant and business owner. Reekstin Replied that the massage operator must also have a City permit; the operator is not required to meet the quaycations to perform massage unless the operator is also a technician; in most cases, the operator is not a technician; there are no educational or training requirements for operators who do not perform massage. Thompson Asked if this applicant has been evaluated by the Police Department. Reekstin Responded that might be a question for the applicant. Director Stated that it was her understanding this applicant has been through the City's background check. Thompson Questioned whether this is considered a medical use. Meyer Indicated that one of the conditions requires that massage be offered by appointment only but not necessarily recommended by a doctor. Minutes -Planning Commission October 28, 2008 -Page 2 Thompson Asked how the permits are differentiated. Reekstin Stated that massage technicians often work in chiropractic, acupuncturist, or medical offices; the difference in those cases is that the doctor is not required to have a conditional use permit because the primary use would be medical; the business operator would need to have a massage operator's permit that requires a background check; the technicians would go through the same process; there are cases of massage occurring within a health spa or beauty salon; if there is no doctor present, the use requires a conditional use permit and massage permit. Director Added that in cases where there is an acupuncturist, medical doctor, or chiropractor, that person would be required to oversee the services being performed; that would not be the case with a pure massage establishment. Thompson Indicated that what he is trying to understand is how this would be different from a medical practice and what allows for private rooms and those types of features. Director Stated the City highly regulates these kinds of uses because of the possibility for misuse; a day spa does not require a prescription to have the benefit of providing massage services; an acupuncturist, chiropractor, physical therapist, or medical doctor often require a prescription for massage therapy; the use requested in this application would not require a prescription. Thompson Asked if staff had received any input from Broadmoor Park, the residential neighborhood to the east, or by the Tustin Chamber of Commerce. Meyer Answered that no comments were received. Thompson Asked if staff has gathered background information that was not included in the Planning Commission packets. Director Responded in the negative. Murray Asked for the historical perspective of this location. Director Suggested that Lieutenant Lewis should address that question. Lieutenant Steve Stated that he serves as oversight for the Design Review process and Lewis, North Area works in partnership with Director Binsack's staff; and, indicated he Division Commander, would answer questions regarding this site. Tustin PD Minutes -Planning Commission October 28, 2008 -Page 3 Murray Noted that he visited the location during the day- and night-time hours and has concerns regarding the aesthetics of the site and the calls for service to this site. Lewis Indicated that this building, but not this suite, and an adjacent location on Newport have received a considerable amount of police services; there have been 17 different operations and several arrests were made for various violations, from prostitution to business licensing. Murray Suggested that the lighting in the area is very poor; several lights were not functioning; there is heavy shrubbery; this presents a situation that could prompt problems. Asked for suggestions the Planning Commission should consider. Lewis Agreed that those are classic problems that cause law enforcement problems; the lighting should be in proper working order; the shrubs should be redesigned or cut back to allow for surveillance opportunities by law enforcement and passersby to ensure that nothing illegal is taking place. Murray Stated that he is familiar with some of the problems associated with massage parlors; and, asked if the City had anything in place to address the mixing of males and females on the site. Director Answered that the Tustin City Code indicates that if male and female patrons are to be treated simultaneously, the facility must provide separation; the floor plan before the Commission presents such an issue because a unisex facility is indicated. Murray Suggested that the conditions should be modified. Lewis Concurred with the Director regarding the separation of the sexes; unisex facilities create special problems in terms of policing. Murray Encouraged staff to make that modification. Director Asked if the Commission wished the staff to bring a modified set of conditions back to the Commission at the close of the Public Hearing. Puckett Answered in the affirmative. Kozak Stated his concurrence. Kasalek Questioned whether there are other massage parlors in the City. Staff Answered in the affirmative. Minutes -Planning Commission October 28, 2008 -Page 4 Kozak Stated that he has had experience with this type of application; Condition 2.2 provides that the applicant shall obtain a massage operator permit and all technicians shall obtain a massage technician permit; he suggested an addition requiring that the permits shall be displayed so as to be plainly visible at all times for the benefit of the operator and the patrons. Thompson Suggested that the facility at Tustin Plaza had problems associated with the lack of separation of the sexes; he wants to ensure that this application avoids those same issues and problems. Director Indicated that staff can bring back an explanation of what went wrong at that facility; each application has to be considered on its own merits; the conditions and the ordinance the City has on the books are good; if someone has the desire to circumvent the rules, he or she can, just as an individual has the ability to construct a building on a weekend or do something else without the benefit of building permits. Puckett Invited the applicant to the lectern. Fanny Huang, 1076 Stated that the applicant wished for her to interpret. E. 1St Street, Tustin Quong Li, applicant Stated that she is the owner; she has a massage license and 1,000 hours of instruction; she would answer questions from the Commission. Murray Asked if this was her first opportunity to engage in this type of business. Ms. Li Answered in the affirmative. Murray Asked how much experience she has in this area. Ms. Li Replied about one and a half years. Murray Asked if she was the sole owner of the business. Ms. Li Answered in the affirmative. Murray Questioned whether Ms. Li would be working alone or hiring other people. Ms. Li Answered that she would hire one massage therapist and three facial assistants. Murray Asked if she would be working alone or partnering with her assistants and whether or not she would be on-site during the hours of operation. Minutes -Planning Commission October 28, 2008 -Page 5 Ms. Li Indicated that she will be attending school but would have a manager on-site in her absence. Murray Asked for information regarding the manager. Ms. Huang Stated that she would the manager. Murray Asked Ms. Huang to state her background. Ms. Huang Answered that she is a full-time cosmetologist and works in the salon full-time; she will alternate her hours when the spa opens in order to provide coverage. Murray Asked Ms. Huang to state which cities she has worked in. Ms. Huang Stated she has worked in the industry for nine years in Roland Heights. Puckett Asked if Ms. Li and Ms. Huang are related. Ms. Li Answered in the negative. Puckett Asked if the applicant had anything to add. Ms. Huang Stated that it is Ms. Li's intention to prevent any misuse of this property and to provide astress-relief environment. 7:43 p.m. The Public Hearing closed. Thompson Recapitulated the following open issues that needed to be considered during discussion: • Light/landscaping; recommendations from staff and the Police Department addressing these issues • Separation of the facilities concerning the sexes • Better input from the Chamber • Outreach to the residential neighbors Added that he would be inclined to continue this item to allow time for staff to address these issues. Murray Stated his concurrence with the concerns stated by Commissioner Thompson. Kozak Agreed with the above comments; the property owner needs to get involved because some of the issues are not the tenant's ~ ' responsibility; Condition 2.2 should be amended per his request ~ above. Minutes -Planning Commission October 28, 2008 -Page 6 Kasalek Asked if the police have routine monitoring of these uses. Lewis Answered in the affirmative; and, added there is a very aggressive team that monitors all such locations and the various advertising outlets that may be used. Puckett Stated he agreed that the item should be continued and requested a motion to do so. It was moved by Murray, seconded by Thompson, to continue this item to the next Planning Commission meeting, Wednesday, November 12, 2008. Kozak Asked if the two-week period would allow staff enough time to accomplish the Commission's requests for mod cations. Director Responded that the next meeting of the Commission would be acceptable. Adopted Resolution 3. REVOCATION OF CONDITIONAL USE PERMIT 98-029 AND No. 4103, with one LIVE ENTERTAINMENT PERMIT AT 14131 RED HILL mod cation, AVENUE IN THE RETAIL COMMERCIAL DISTRICT (C-1) recommending ZONING DISTRICT. revocation RECOMMENDATION: That the Planning Commission adopt Resolution No. 4103 recommending that the City Council revoke Conditional Use Permit 98-029 7:51 p.m. The Public Hearing opened. Thomas Presented the staff report. Thompson Referred to the fines assessed; and, asked for the amount required to be paid by this applicant. Thomas Indicated there was a settlement with Mr. Smith in the amount of $4,200; the total assessment exceeds $25,000. Director Provided further clarification that staff intended to proceed with the revocation at that point; the stipulated agreement required the payment of half the enforcement cost; because the business was being sold, the City agreed not to proceed with the revocation at that time if the sale proceeded and the new owner would comply with the conditions of approval; there are no fines or fees outstanding at this point; the purpose of the dollar amount shown was to indicate the actual cost the City has incurred to date since 2005, regardless of whether or not any reimbursement was received. Minutes -Planning Commission October 28, 2008 -Page 7 Thompson Stated that he trusts there is a mechanism for recovery of those fees should there be some sort of further due process. Director Replied that would require due process before the Planning Commission and the City Council for any reimbursement to occur. Thompson Asked for clarification regarding the role of the Alcoholic Beverage Control (ABC) in this situation. Kendig Answered that ABC and the City have a regulatory role; the City issues the conditional use permit; ABC issues the 47 permit. Thompson Asked if ABC relies on the City for due process or ABC is also processing some extermination of permits. Director Stated that staff had a discussion with ABC staff and were advised that there is a transfer pending; staff advised ABC staff of this revocation hearing, making it clear that the Planning Commission is only a recommendation body to the City Council; ABC staff asked what the timeframe might be because a determination needs to be made by them whether or not to approve the transfer within a certain amount of time; it was made clear that, at this time, there is a valid conditional use permit; ABC staff is inclined to approve the transfer based on the permit being in effect; staff informed ABC staff that the floor plan for a different use than. the one for the original condition use permit would require a different consideration and/or approval; ABC staff had not been made aware of that; ABC staff is waiting for the outcome of this revocation in order to determine on what to base their approval; if the City had never granted an approval and someone went before the Department of ABC to request a license, ABC would ask whether or not an approval use existed; if the City signed off on it, ABC would grant a license; since a conditional use permit has been granted, everything is in motion; if the ABC license is transferred, it is likely the Department of Alcoholic Beverage Control will not revoke the license. Thompson Questioned whether ABC would take action despite the concerns and the volume of violations. Director Stated that there is a possibility that, if the conditional use permit is revoked, ABC will not transfer the license; however, if there is a valid conditional use permit, the Department of ABC will likely transfer the license. Thompson Referred to the thoroughness of the report; and, asked why it would take so long to process a revocation. Director Replied that with the conditional use permit the property owner/ business owner have a property right; staff attempts to give Minutes -Planning Commission October 28, 2008 -Page 8 individuals every opportunity to comply with the law and the conditional use permit property rights that have been granted to them; all City staff believed that the last business owner would comply with the conditional use permit; several hours were spent going over the '` conditions of a royal, askin If there were an pp g ' y questions or concerns with implementing any of the conditions of approval, and were assured there would not be; staff believed that business owner would thrive and be a welcome addition to the business community; unfortunately, that was not the case. Murray Complimented staff for the compilation of the detailed report; it seems the business owner had every opportunity to comply with the law; perhaps Code Enforcement and Public Safety could provide further information and opinion regarding this location.. Steen Stated that he spent a great deal of time documenting the violations and putting together the investigative report before the Commission; staff had every reason to hope the business owner would have a legitimate business and prosper in the City; as the evidence shows, that did not happen. Murray Asked if it was his professional opinion that the owner was provided every opportunity for these conditions to be corrected. Steen Answered in the affirmative. Margulies Stated that he has been a Tustin Police Officer was 18 years; he is the administrative assistant to the South Area Commander, Lieutenant Charlie Celano; at an early meeting with these new owners, all the law enforcement concerns were discussed and the new owners provided reassurance that things would be different; that has not been the case; the statistics show that the amount of hours spent in relation to this business are enormous. Added that the ABC investigators are sworn police officers; they are undercover and operate along with the City's undercover operatives. Murray Asked if there are other similar establishments in the City. Margulies Responded there are none that are pure nightclub operations with no restaurant facilities. Thompson Referred to the graph presented in the staff report; and, asked what the nature might be of the difference in these establishments. Margulies Indicated that any establishment that serves alcohol has the potential for police involvement; with an establishment whose income is based solely of the sale of alcohol, there are more problems; the other establishments on the graph as bona fide restaurants that serve alcohol; the more serious problem stems not just from the number of Minutes -Planning Commission October 28, 2008 -Page 9 calls but also the nature of the incidents and the number of officers required to respond, officers that may be needed elsewhere in the City. Murray Suggested that this is a quality-of-life issue and has citywide impacts. Margulies Concurred with that suggestion; and, stated that often calls come from the neighboring apartment building whose upstairs residents look down on the location and are often disturbed by questionable activities in the parking lot. Puckett Invited the applicant to speak. Charles Farano, Stated that he had very little time to review the document presented applicant's attorney this evening; much of the information was based on a time period that preceded his client's business operation; there were problems with the prior owner that should not be attributed to the most recent owner, Matt Huston; the primary use was as a restaurant; due to the lack of time to prepare for this hearing, he respectfully requested a continuation of the item. Kasalek Referred to Mr. Farano's mentioning that the primary focus of this business was a restaurant, not a bar; and asked if he had an answer for all of the flyers that refer to activities that are not related to serving restaurant guests. Mr. Farano Indicated that he would need to find out when those flyers were posted; he had no answers or excuses for the activities that were occurring outside the parameters of the conditions of approval; there were occasions when third parties sponsored and advertised events at the restaurant; Mr. Huston generally closed when he was required to under the terms of the conditional use permit. Kasalek Pointed out that many of the offenses clearly were presented under Roderick's, such as one advertised for Saturday, June 14, 2008. Mr. Farano Stated that, in looking at the report, it would be incumbent upon the Commission to present an accurate picture; any references to events before Mr. Huston's ownership should be eliminated; it is important to know what percentage of the violations involved Mr. Huston's restaurant; the accuracy of the graph representing similar uses should be more closely investigated, especially regarding the dates. Kasalek Noted that there is much more involved in the revocation than just the police activity; the flyers represent violations regardless of what the police involvement might have been; Mr. Huston was responsible and the owner should have known what activities were taking place. Minutes -Planning Commission October 28, 2008 -Page 10 Mr. Farano Agreed that was true; added that Mr. Huston should have an adequate opportunity to respond to the report; adequate notice was not provided for him to do that. Kozak Directed Mr. Farano's attention to Attachment F of the staff report that contains an investigative report; if one draws a line above the date Mr. Huston assumed ownership, there are multiple occurrences below that line of functions that did not comply with the conditional use permit; this clearly suggests the events did not promote the betterment of the community and clearly shows disregard for the rules and regulations imposed on this permit; revocation is not taken lightly by the City; it is important to stick to the facts; there is no reason to continue this item. Mun-ay Added that the record speaks for itself; the documentation provides the information required to make an appropriate decision. Thompson Noted that this is something that deserves detailed attention; and, asked for clarification regarding the February 2006 date as to whether that was the time of transfer of the business. Mr. Farano Answered in the affirmative; that was also the approximate time of a settlement by and between the old owner, Fitzgerald; the new owner, Huston; and the City. Matthew Huston, Stated that he is a businessman who tried to open a restaurant in the Roderick's owner City of Tustin; he opened his restaurant October 16, 2006; he invested approximately $50,000 to upgrade the equipment, hire an Executive Chef, etc.; he received this packet of information this evening; 75 to 80 percent of the information relates to the former owner; he was nominated for Business of the Year in 2007; he supported Miss Tustin and was a Chamber member; he held Tustin charity poker tournaments two years in a row for Miss Tustin; he hosted Chamber of Commerce luncheons, Tustin Lions' luncheons, etc.; one month after he closed the restaurant and two weeks before he was to close escrow, this revocation happens; he questions whether he is being evaluated on his merits, as the massage use would be. Thompson Stated that he was attempting to follow the suggestion of Mr. Huston's attorney to separate the past from the cun'ent; if July was the date of transfer, the first 14 attachments relate to the past; the remaining 24 attachments relate to Roderick's. Mr. Huston Interrupted to state he had every right to a DJ and dancing under the terms of the conditional use permit and his entertainment license; he did not begin the dancing until more than a year after he opened; he could not make it as a dinner house. Minutes -Planning Commission October 28, 2008 -Page 11 Thompson Stated that most of the attachments relate to the present; it was represented earlier in the staff report that what defines a bar versus a restaurant is the requirement that more than 50 percent of the revenue be from the restaurant. Mr. Huston Indicated that the split has to be 50/50, not only with the City but also ABC; he was audited twice; his CPA, who works for the City of Tustin, audited his books and sent both audits to the Planning Commission [sic]; both met those standards. Thompson Indicated that the audits were inadequate due to no backup being provided. Mr. Huston Restated his CPA sent the letter. Thompson Suggested that a letter identifying revenues is not backup. Mr. Huston Insisted that staff had not provided him with any feedback related to the inadequacy of his audit report. Thompson Asked if Mr. Huston was made aware of the prior difficulties and challenges of this site. Mr. Huston Answered in the affirmative. Thompson Suggested, contrary to claim by the the applicant and his attorney, that most of the elements contained in the exhibits had been seen before; many of those documents were letters written directly to Mr. Huston or his attorney. Mr. Huston Indicated that was incon-ect; the problems about which he was noted were that Mr. Fitzgerald was not serving food at all, and the City was planning to revoke his conditional use permit because he made no attempt to serve food; he also did not supply financials to the City. Thompson Noted the point he was trying to make was that it was stated Mr. Huston had not seen the information before although most of the letters were addressed to him; and, questioned whether or not he had in fact not received the letters. Mr. Huston Stated that the only communication he received was from Mr. Steen regarding signs, banners, and "No Loitering" signs; whenever he was told this by Mr. Steen, he took care of the problem; when he received the letter regarding the financial report for an audit, he volunteered to print the information from his computer, provide it to a CPA that works for the City, and he would get the audit to the City; he got to know many police officers when he first opened, because they were accustomed to the activity at Fitz's; they always told him he had no problems similar to Fitz's; he closed the restaurant almost two months Minutes -Planning Commission October 28, 2008 -Page 12 ago; the police were called out fewer than five times; if they chose to put him under surveillance, he would like to see those complaints requiring so much police time. Thompson Suggested that Mr. Huston's response indicated he had received the letters; he may have taken some actions; in any case, he did receive the letters. Mr. Huston Asked for clarification. Thompson Referred to the July 21, 2006, letter. Mr. Huston Stated he opened October 2006. Thompson Indicated he understood, but Mr. Huston was the owner. Teresa Huston, wife Stated they did not transfer ownership until August 2006. of Matthew Huston Thompson Noted that was the third date he has heard: February from Mr. Farano, July from Mr. Huston, and now August from Mrs. Huston. Mrs. Huston Stated the transfer took place in August 2006; the restaurant ofFcially opened for business October 16, 2006; regarding the letters referred to by Commissioner Thompson requesting that an audit take place: those were responded to by Lany Friend, their CPA; those letters were then sent to the City; whenever the City contacted them, it was both at the restaurant and their home; they only found out about the other violations through their buyer; they have been closed since the last week of August or first week of September 2008; they have been in escrow; everything was being transferred; the buyer went to the Planning Commission [sic) to speak with them; he was told that the Hustons were in violation; he then called escrow with that information; the escrow officer called the Hustons; they indicated they did not know what he was talking about; if the Planning Commission wants to talk about the due process of law, pefiaps the Hustons should have had a fair amount of time to correct these problems; no one ever told them the audit was unacceptable; the Hustons were, in fact, operating as a restaurant in a beautiful dinner house; many of the people in attendance ate at Roderick's; the 2007 ManM/oman of the Year celebrated at Roderick's; Councilman Bone visited their restaurant every week; the Hustons could bring other people in to verify they operated as a restaurant. Kasalek Asked the Hustons if they were aware of the promoter of the various events showing MySpace ads indicating the closing time was 2:00 a.m. Minutes -Planning Commission October 28, 2008 -Page 13 Mr. Huston Answered in the afFrmative; whenever someone wished to have a private party, he insisted that a buffet be included, although the restaurant was not open for regular dinner items; there were occasions where he stayed open up to an hour later than allowed; he had to do that to survive; he did not have the types of problems that existed at Fitz's; to revoke the conditional use permit after he has been closed and when new owners want to take over is wrong. Larry Smith, the Stated that Mr. Huston was his tenant; if there had been any property owner notification to Mr. Smith of these problems, he would have been down there to confer with Mr. Huston and his wife to correct these problems; the first paperwork he received was the staff report this weekend; no prior communication was received by him; some of the locations referred to in the graph had fewer calls because they were closed. Puckett Referred to a letter dated September 18, 2006, to t_any R. Smith with the subject line: "violations of conditional use permit." Mr. Smith Indicated that letter was in reference to Fitz's; once Mr. Huston took possession and opened for business, not a single document was received addressed to him before the packet over the weekend; if the conditional use permit is cancelled, he will not be able to apply for a new one for a year, resulting in a blight on the City; the building had been boarded up for a number of years before he purchased and renovated it; the building was in terrible shape. Mr. Farano Reiterated that the only appropriate use for this building is a restaurant; the revocation of this conditional use permit will result in worse problems than exist now; he urged the Planning Commission to consider some action that would not prohibit a restaurant use. 9:21 p.m. The Public Hearing closed. Thompson Stated that revoking a conditional use permit is a very serious matter; he appreciates the sensitive balance between a family's income and the responsibilities of compliance; Condition 1.8 shows dates of 2005 that perhaps should have been 2008; the presentation provided should be made a part of the staff report to Council; Mr. Farano's comment regarding a distinction between the past and present activity should be considered; there are strong reasons for a reach back into the past to the prior business; the report states that; there is a tendency to make promises and then not deliver; Attachment 9 in a letter to Mr. Farano, May 6, 2006, contains information regarding prior violations; a letter dated May 3, 2006, from the Director, clearly states that certain activities would not be countenanced but aggressively pursued; the documentation proves the ongoing nature of the violations; it is with regret that he must support the recommendation for revocation of the conditional use permit. Minutes -Planning Commission October 28, 2008 -Page 14 Murray Indicated that Commissioner Thompson summed up Commissioner Murra~s concerns and thoughts; it is important to separate some of the issues from the past from the present issues; the historical perspective has substance; the Planning Commission would be negligent in ignoring the repetitive violations; the Planning Commission exists to promote business, but the aim is to address the issues for the community; based upon the information presented and staff's recommendation, he supports revocation of the conditional use permit. Kozak Reiterated that the process is not a casual exercise; he appreciates the comments of staff, the applicant, property owner, and the operator's attomey; he has separated the facts between the past and present operators; his decision is based on current facts and events; promises and representations were made and not kept; the body of evidence is overwhelming for the revocation of the conditional use permit. Kasalek Asked for clarification from Lt. Lewis whether or not the owners are notified when such violations occur. Lt. Lewis Answered that the notification depends upon the situation; multiple surveillance operations took place; he was not privy to the overall tactics or goal; the Police Department might have been building information to perhaps present to ABC or staff to devise a game plan to address the problem. Director Added that, once the Community Development Department was notified that the conditions were being violated, Code Enforcement began building a case, because it did not appear this was going to be a legitimate operation; there were complaints from residents that the business operations were being conducted more like a club or bar than a restaurant facility; per the settlement agreement, Mr. Smith and Mr. Farano told staff the conditions of approval would be complied with; once staff discovered there was no backup to the audit requests, it was determined to be functioning as a club, not a restaurant. Kasalek Questioned whether the contacts with the attomey and the owner were consistent from the beginning. Director Replied that the contacts began with Mr. Fitzgerald, Mr. Smith, and Mr Farano; when the permit transferred, staff met with Mr. Huston, Mr. Smith, and Mr. Farano. Kasalek Indicated she was somewhat concerned that the City perhaps had not communicated as much as it should have; the total change in the operation from a good restaurant to promoters remains her concern; adjacent to that property is a two-story apartment building with families, a market, and people coming and going, which makes this a Minutes -Planning Commission October 28, 2008 -Page 15 poor choice on Mr. Huston's part; this violated the conditional use permit; there were too many violations reported that were unacceptable, making her support for revocation the only choice. Puckett Stated that, during his years on the Planning Commission and City Council during the 1980s and nearly four years this time around, this is probably the most difficult decision he has been faced with; he was at the grand opening of Roderick's, had dinner upstairs with another couple, the food was wonderful, the Hustons were great host and hostess; he was pulling for their success; later it became apparent the nature of the restaurant had changed with the dancing in the lobby; it was no longer conducive to the family atmosphere he was looking for, given everything that has been said and staffs presentation, he supports the recommendation to City Council for revocation of the conditional use permit; it will be the Council's decision; the properly owner and business owner should have ample time to prepare for that hearing. Thompson Moved adoption of Resolution No. 4103 with special consideration for processing a new conditional use permit through the system based upon current economic challenges. Kozak Stated he would second the motion for discussion. Kendig Stated there were items to be identified before the final vote. as follows: The table on pages 8 and 9 of the staff report ident~es dates of violation; for all but the first, there are dates in 2008; the Commission should determine whether or not to include or delete Condition 1.8 in Resolution No. 4103. Thompson Referred back to his comment regarding whether or not those were typographical errors on some of those dates. Thomas Clarified that the violation dates of 9-18-06, 3-30-06, 11-1-06; ;and 2- 17-06 were addressed to Fitz's; the Exhibits would be 5, 8, 15, and 16. Thompson Asked for verification that all the dates were accurate. Thomas Responded that the dates are as stated above. Puckett Questioned whether there are dates that need to be included that took place after [the Hustons took over]. Kendig Indicated he was not suggesting the dates be changed; he was suggesting the Commission needed to consider whether Condition 1.8 had been violated; if not, that condition should be removed from the resolution. Minutes -Planning Commission October 28, 2008 -Page 16 Thompson Referred to several letters that were sent in 2008 requesting financial audits for which backup was not sent although a letter was sent; and, asked if Mr. Kendig was offering an opinion. Kendig Answered that he was no opining; he was raising the question: if what was received was adequate, then arguably there was not a violation of Condition 1.8. Puckett Suggested that since there were no specific dates listed after the time of the transfer, it probably would be a good idea to delete that condition. Murray Concurred with that suggestion. Kendig Stated the motion should be modified to indicate that, if staff believes there is additional information in support of that condition, that information may be brought to the City Council when the applicant would have a thorough opportunity to respond. Thompson Amended the motion to include the deletion of Condition 1.8. Motion carried 5-0. REGULAR BUSINESS Adopted Resolution 4. DESIGN REVIEW 08-001 (CONDITION AMENDMENT) A No. 4102, denying the REQUEST TO WAIVE CITY ELECTRICAL CODE SECTION request 8402(A) AND MODIFICATION OF CONDITION 3.14(A) OF DESIGN REVIEW 08-001, WHICH REQUIRES THAT ALL UTILITY LINES MUST BE UNDERGROUND IN ASSOCIATION WITH THE RECONSTRUCTION OF A NEW 1,811 SQUARE FOOT RESTAURANT. THIS PROJECT IS LOCATED AT 1022 EAST FIRST STREET IN THE RETAIL COMMERCIAL ZONING DISTRICT (C-1 ). RECOMMENDATION: That the Planning commission adopt Resolution No. 4102 denying a waiver request of Tustin City Code 8402(a) and Condition 3.14(a) of Design Review 08-001. 9:45 p.m. The Public Hearing opened. Tieu Presented the staff report. Kasalek Asked why the third utility pole (the liquor store) is involved in this, whether KFC was giving power to that pole, and whether an independent engineer has been able to offer alternatives to that pole being taken down; she was confused by the reference to a second Minutes -Planning Commission October 28, 2008 -Page 17 underground transformer on the KFC site and the possible loss of a parking place. Director Stated that staff met with SCE and believed that there might be alternatives and options available; however, few options seemed available unless Chipotle, KFC, and the liquor store wanted to bear equal burden of the costs; it did not appear the utility provider was willing to provide any of the services. Kasalek Indicated that she assumed that the utility provider would step forward since the utility pays for a lot of the required pulling of wires, etc. Director Suggested in the affirmative. Kasalek Stated she is trying to find a way that the third pole does not become the sole burden of KFC. Director Indicated the third pole is different from the other two. Murray Asked for confirmation that SCE installed the pole for Chipotle without consent of the City. Tieu Answered in the affirmative. Murray Suggested that it would be in their best interests to correct both problems simultaneously and have combined collaborative efforts to mitigate the situation. Director Answered in the affirmative. Kasalek Reiterated her question regarding an independent analysis by an electrical engineering firm had been done. Director Responded in the negative. Thompson Asked if there have been any reports from SCE representing the costs or possible solution. Director Suggested the Commission might want to address that question to the SCE representative; the dollar amount expressed to staff was about $70,000. Thompson Asked what Chipotle's reaction or response has been to the violation. Director Indicated that Chipotle has not responded. Kasalek Asked if anyone had been in touch with the medical building that needs the 120/240 power and whether or not that is actually required since 120/208 is often sufficient. Minutes -Planning Commission October 28, 2008 -Page 18 Director Stated she is not aware of anyone contacting them; however, the service being provided to the medical facility is not necessarily desirable in the manner it is being provided; it may, in fact, be non- conforming; this might be an opportunity for the utility provider to establish a conforming method of service to that facility. Kasalek Mentioned the possibility of losing two parking places. Director Stated that parking was one of the issues that came up with Chipotle; SCE decided to put a pole on the site so that a space would -not be lost; for that site, there was never supposed to be an aboveground facility; the site was to receive the service from an underground facility off-site; no parking space would ever have been lost; that is also true for the KFC site; if it is on-site, there are drive aisles, landscaped areas, and other places and opportunities where a facility can be located below ground. Thompson Asked ff the underground as discussed is more costly. Director Answered in the affirmative. Steve Jordan, Stated that the letter from Mark Raber contained in the staff report Tarios & Associates aptly outlined the request for a waiver; the original request was made on January 8, 2008, with the understanding that, because of the amount of work being done with KFC, the request would not have to go before the Planning Commission for approval but would be done on the staff level; it took five months to get the conditions of approval; the discussion regarding that particular item has been going on since June 11 when the conditions of approval were received. Presented to the Planning Commission an e-mail (incorporated herein by reference) not contained in the packet that was sent to Justina Willkom on August 5, 2008; this page and a half outlines the issues that SCE had with this particular project and how the electrical service is distributed along with property line; this overhead electrical service is at the back of the property between two commercial properties; the Chipotle restaurant is the end of the line; the line continues east behind the KFC and liquor store, across the parking lot for the medical building, behind that property and north and south down to Bryan and behind the Albertsons store on First Street at which point the overhead line drops to a transformer that feeds Albertsons. Added this type of line is typically at the back, not on the street, is visible and has power poles with transformers mounted on the pole. Indicated that the services in the back include two services to the medical building, one off the liquor store pole and another off the KFC pole; that may be the reason it is anon-conforming installation; perhaps the SCE representative can comment in that regard. Minutes -Planning Commission October 28, 2008 -Page 19 Jordan continued Stated that the power pole at the liquor store serves the primary ovefiead power into the Chipotle pole and is referred to as a dip conduit which comes down the pole and goes underground to the building; that is what is installed at Chipotle; there are no overhead ` wires to the building; KFC does have ovefiead wires that feed the current building; with the new construction, conduit would be put down the pool and underground to the building. Regarding the Electrical Code referred to in the staff report, it states "provide direct service to the property being developed"; the intention is that the direct service is the power that comes down the pole in the conduit and underground to the building, and not the overhead primary wires that run across the property; the contention is that the power is being undergrounded as stated. Referred to the fact that Chipotle was before the Planning Commission two years or so years ago for the conditional use permit which was granted; documents were submitted with exhibits that showed the site plan and design; that project, as submitted, did not include a power pole; no conditions were provided to underground the electrical because it was not shown on the plan; when it was constructed, it was determined that a power pole was necessary, was installed, the service run down the pole, underground, and into the building; the Building Division had to see if the site was in conformance with the approved documents, and the Certificate of Occupancy was approved with the pole. Noted that there is an option to underground to Chipotle and the new KFC which would require connecting to an underground vault that is in the intersection of First Street and Newport and setting a box with a transformer on the back comer between the two properties with an easement for the electrical line; the issue is that the pole that exists on the KFC property could not go away because it services the building behind it; the transformer that could be installed would not be able to service the medical building to the south; the pole that everyone is talking about eliminating could not be eliminated until the medical building decides to do something or the liquor store goes away. Stated that to deny KFC's request is unfair and inconsistent with what has been happening on these properties. Kozak Referred to the option referred to involving the connection to the First and Newport vault; stated that it occur-ed to him that the pole on the liquor store site also serves the medical building; and, asked if it would be feasible to consider the pole at the liquor store to provide both services or in some other comprehensive way provide the best available service to the medical building. Minutes -Planning Commission October 28, 2008 -Page 20 Mr. Jordan Indicated he could not answer that; he is not an electrical engineer; there are three transformers on the pole that serves Chipotle, three on the pole that serves KFC, and only one transformer on the pole that serves the liquor store and medical building; SCE could possibly change the service provided to both of those buildings. Kozak Stated that it seems that all the entities need to get together with SCE and find a solution to the problem. Thompson Referred to the photographs from the staff report; and, asked what the proposed $70,000 undergrounding represents in the terms of the photographs. Bob Stiens, Southern Stated that he is not the technical expert; that was a very rough California Edison estimate of the cost for the developer to do the trenching and put in the conduit to come off a vault at approximately First and Newport to the back of the property where a transformer could be installed. Thompson Suggested the pole in question entered into the picture contrary to the conditions of approval and got passed and has now been brought to the attention of Chipotle; though that may be an issue in this scenario, it is not a requirement of KFC to deal with that issue; the pole served by SCE does more than service KFC. Mr. Stiens Stated that was correct. . Mr. Jordan Added that it is also a continuation of the service to the Chipotle pole; it that pole goes down, there will be an impact on Chipotle. Thompson Stated he understands that overhead lines are a blight and the reason for the conditioning is to try to slowly eliminate them; it cannot be the burden of one property to fix everything in the area; the question is how to get the transformers underground if the pole cannot go away; he believes the Chipotle question needs to be resolved between SCE and Chipotle and is not something for the Planning Commission to consider; the applicant understands that the overhead lines will go away and the transformers undergrounded. Asked how much it would cost to underground those transformers. Mr. Stiens Indicated that there might be an initial cost to the restaurant but over time that cost could be refunded through allowances; the cost is based on usages and allowances; a service can be designed that would serve both an underground service to both KFC and Chipotle; the City, SCE, Chipotle, and KFC can get together and work this out; SCE cannot force the medical building to reconfigure their electric service; if that building were to be remodeled, the City could put those conditions on the medical building. Minutes -Planning Commission October 28, 2008 -Page 21 Kozak Restated what he suggested regarding the feasibility of moving the transformer that currently exists on the KFC pole that serves the medical building to look at the possibility of putting those transformers on another existing pole. Mr. Stiens Responded that he would need to check, but he believes that the transformers on the pole are only serving KFC; the service to the medical building is being fed off the transformer behind the liquor store. Kasalek Questioned what the problem would be if that is the case. Mr. Stiens Replied that the Public Utilities Code, which governs SCE, sets the safety standards; it has to do with a line crossing the roofs and a walkway; the lines would not be high enough to be above what is considered a walkable surface. Thompson Stated that it is understood that the lines that drape across need to go underground; the expectation is that those transformers would be underground so that the only function of that pole would be to receive the lines and drop the service underground; going to that other pole farther back on the left would require the applicant to go off the property, under the wall that is not theirs, and would present a hardship; perhaps the better solution would be to put those transformers underground, receive the lines, and everything after that goes off to the right would involve a mutual resolution among SCE, Chipotle, and KFC and to work out what those numbers are; if there is still a hardship, that would have to be brought back to the Commission for a better understanding of the details; it needs to be clarified what goes away and what remains. Director Added that during the discussion staff held with SCE, it was identified that that pole would need to remain to provide service to the medical building; it does not need to be there for the benefit of KFC; in staffs recommendation that the utilities be provided underground and not on that pole and KFC were able to work things out with Chipotle, the pole would still remain; SCE indicated that they might be able to remove the top half of the pole; staff has looked into other issues that would allow the wires to be moved to the pole that serves the liquor store if SCE would be willing to do that; the easements already exist. Mr. Jordan Stated that he would like to change the wording from underground to a pad-mounted transformer; in a situation like this transformers would not typically be put into an underground vault. Director Indicated it was staffs intention that the pole not be used for the KFC facility; Chipotle and KFC would need to be on separate underground transformers. Minutes -Planning Commission October 28, 2008 -Page 22 Mr. Jordan Restated that it would not be an underground transformer but apad- mounted transformer. Director Indicated that staff could look at what is being proposed to determine if it can be effectively screened; the current Code requires that all utilities be underground. Mr. Stiens Suggested that there would seem to be a way to underground both the KFC and Chipotle, either with apad-mounted transformer or, if required, an underground; there are many methods of screening pad- mounted transformers; the pole would have to remain, although a portion of the top could be removed. Mun'ay Stated that there seems to be some opportunity for collaboration; and suggested that this item be deferred to allow appropriate time for things to be worked out. Puckett Indicated that it might better to approve the resolution denying the request with the stipulation that everyone get together and reach a solution. Director Indicated that the recommendation is to approve staffs recommendation. Zorah Hamedany, Pointed out that the expert, Jill Bowers, did very detailed research KFC representative regarding how the poles are mounted and who is served from each pole and what options are available; her conclusion was that the design option that would be most favorable to Edison would be to leave all the overhead poles as they are and to underground the transformer bank on the pole that serves KFC; a $70,000 amount assessed to KFC might kill the project; this issue has been holding up the project for quite some time and is becoming a hardship on KFC. Thompson Asked how long the construction is expected to take. Ms. Hamedany Replied that the actual time of construction is about 90 days. 10:34 p.m. The Public Hearing closed. Thompson Thanked the applicant for waiting through the prior business of the Commission. Stated he would like to propose something different from what has been proposed by staff as follows: • Allow a delay in this requirement • That effective resolution between the parties be brought to the table to resolve the undergrounding business and fees and to do that within 30 days Minutes -Planning Commission October 28, 2008 -Page 23 • If a resolution cannot be made, a sufficient deposit be made for the appropriate portion of the fare share among KFC, Chipotle, and SCE. Murray Indicated his concern is setting a precedent; and, stated his desire that the Commission follow staffs recommendation. Kozak Indicated he understands the need to move forward; it is desired that pole blight be removed; the parties should be allowed to get together and reach a compromise and pefiaps bring that back to the Commission. Kasalek Agreed that the KFC project should be allowed to move ahead, but it is her understanding that KFC needs to be know what the cost will be before moving forward; allowing a 30-day delay may not take away those cost concerns; ideally, she would like to see the poles gone. Puckett Stated that he wants to see that new KFC facility but is in agreement with staff that the waiver should be denied and the parties be allowed to get together and find a way to reach the desired results. It was moved by Murray, seconded by Kozak, to adopt Resolution No. 4102. The motion carried 3-2; Kasalek and Thompson voted no. STAFF CONCERNS 5. REPORT OF ACTIONS TAKEN AT THE OCTOBER 7, 2008, CITY COUNCIL MEETING. Director reported The City Council awarded the graffiti removal contract to Graffiti Control Systems, the same company that has been removing graffiti in Tustin for several years. COMMISSION CONCERNS Thompson Stated that he attended the Planners Forum; the organization and information were excellent; he appreciated the involvement of City staff: kudos for a job well done. Indicated that on October 17, he attended the BIA installation dinner for officers for the coming year. Added that on October 22, he attended the City Council debate and was impressed. Murray Reported that he was happy to see Tustin included in the newspaper article referring to cities that are delaying development fees in order to provide some relief during these economic times. Minutes -Planning Commission October 28, 2008 -Page 24 Murray continued Noted that the kitchen at the Senior Center has reopened. Reminded everyone that the Thanksgiving Breakfast takes place November 20. Stated he attended the Total Wine ribbon-cutting and was very impressed with that facility. Kasalek Reminded everyone that the Dinosaur Dash is this weekend; she is on the committee and knows the event is for a good cause. Kozak Stated that he attended the Old Town Art Walk on October 18 and enjoyed the various mediums and artists; Chad from Parks and Recreation indicated that the programs had sold out during the first few hours. Referred to the earlier item on tonight's agenda; and, suggested that as older properties are redeveloped every effort should be made to interconnect, make communities more pedestrian friendly, and make every attempt to improve the traffic flow; in other words, modernization should be the goal. Reminded everyone to vote on November 4. Puckett Stated that he also attended the City Council debate and was impressed with the candidates; a straw poll was taken that indicated former Chair Nielsen was the top vote-getter. Thanked Chair Pro Tem Kozak for standing in for him during the October 14 Planning Commission meeting while Chair Puckett was enjoying a deep dish pizza in Chicago. Indicated that he also attended the Planners Forum and thought the various presentations were excellent. Noted that he attended the Total Wine ribbon-cutting and was happy to report that a $10,000 donation was presented by Total Wine to the Tustin Community Foundation. Asked staff whether any progress is being made regarding the code enforcement issues at the Post Office Director Explained that Chair Pro Tem Kozak had requested the information left at the dais; and, added that only minor improvements have been made at this point. Thompson Indicated he noticed the landscaping has been ripped out. Minutes -Planning Commission October 28, 2008 -Page 25 Kozak Stated that he had overlooked two comments: 1) thanked staff for the items on tonight's agenda; the Roderick's report was accurate, thorough, and complete; and, 2) thanked staff for their involvement in the Planners Forum. Noted that the appearance of the Post Office has been a concern of his for quite some time; and, thanked the Director for providing the letter and attachments. 10:55 p.m. ADJOURNMENT The next regular meeting of the Planning Commission is scheduled for Wednesday, November 12, 2008, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way. .~ ,. ;- ~ _.___ ~~~~ "; Gl ~ ~ Charles E. Puckett Chairperson Elizabeth A. Bi ck Planning Commission Secretary Minutes -Planning Commission October 28, 2008 -Page 26 -----Original Message----- From: 7ill.Bowers@sce.com [mailto:7ill.Bowers@sce.com] Sent: Tuesday, August 05, 2008 12:03 PM To: Willkom, 7ustina Cc: mraber@tarlos.com; Jeri.Brannon@sce.com Subject: SCE design for KFC at 1022 East 1st Street, Tustin Good morning 7ustina, With regard to the new KFC at 1022 East 1st St., in Tustin, I am of the understanding that the City of Tustin is requesting that all existing overhead lines and facilities be transistioned to underground cable and equipment. In an effort to ease costs associated with this sort of undertaking, I am writing to help the city of Tustin understand how much, and what manner of work would be required to accommodate the city's ordinance. In order to eliminate all overhead service at and beyond KFC's lot, the following actions would have to take place: Removal of 45 foot electrical pole # 1677513E on the KFC property. This pole carries a 120/240 volt, 3 phase transformer bank that not only serves KFC, but also a medical office in the neighboring office building that requires 3 phase service to run some of its equipment. The address of this medical office is 1076 E. 1st St., Unit F. Taking down this pole and subsequently the 120/240 volt, 3 phase transformer bank would leave the medical office without a source for 3 phase power, as the rest of the office building is served from a single phase transformer on pole# 1581576E, the next pole east. Also affected by the removal of pole # 1677513E on KFC's lot is pole # 4686417E which carries a 120/208 volt 3 phase transformer bank serving the new Chipotle restaurant on the corner of Newport Avenue and 1st Street. This pole was installed less than two years ago, and no question of undergrounding existing overhead facilities was raised at that time. If we remove pole #1677513E, the primary (12,000 volt) overhead lines which run from the next pole east, pole # 1581576E will have to be taken down as well, as we cannot have an unsupported span of overhead conductor for that distance. This would leave us with no primary conductor to feed the transformer bank on pole # 4686417E. That would require a padmounted transformer be installed to serve Chipotle and the new KFC, but would still leave the doctors office without a source for 3 phase power as Chipotle and the new KFC will both be utilizing 120/208 volt, 3 phase power, and the doctor's office requires 120/240 service. To install the padmounted transformer to serve the new KFC and the existing Chipotle restaurant, we would have to run an underground primary (12,000 volt) feed from pole # 1581576E west to the site of the new padmounted transformer, which would have to occupy approximately a 19'x12' space at the rear of the KFC building, possibly taking space away from the required trash enclosure and parking spots. Also, for your consideration, is the issue of intercepting Chipotle's existing service duct once a new padmounted transformer was installed. The fresh hardscape and landscape would have to be cut into, and possibly even a portion of their trash enclosure undermined. All of this would not only be at considerable cost to KFC, but also to Edison. From a fiscal standpoint, Edison has to take into account the manpower, equipment, and material costs that went into building a system to serve Chipotle when they opened for business last year. Now more manpower, equipment and material costs will be incurred to undo all that work and rebuild the system to serve everyone affected by this ordinance. Of course, still of primary concern, is how to serve the medical office in the building next door. Not only will a second padmounted transformer have to be installed to serve them with the 120/240 service voltage they require (meaning that KFC will have to give up additional parking lot space), but an underground service duct would have to be installed to their panel and that panel possibly replaced altogether if it cannot accommodate underground entry. Their panel is currently located in a breezeway accessible only from the other side of the building. Running a new service in underground duct is most likely not actually possible at the current location of their panel as the service duct cannot run underneath a structure. If their panel had to be relocated, the wiring to that panel would have to be redirected, again, at considerable cost to KFC and the medical office, as this type of work would lead to extensive time without service for the medical office. The design option that would be most favorable to Edison is to leave all overhead poles as they are, and to simply upgrade the transformer bank on the pole that currently serves Chipotle. This would allow us to continue to reliably serve the medical office next door. We would then require that a handhole be installed at the base of the pole and both Chipotle and KFC's services would extend out from that handhole. KFC would trench from that new handhole, around the Chipotle trash enclosure to their panel location on their new structure. I just though it prudent to advise you of all factors affected by your request for all overhead conductors to be placed underground in conjunction with this project. I would be happy to clarify any of the points made in this note or answer any questions you might have. You can reach me by e-mail or at 714-973-5453, or 714-415-8178 which is my mobile phone number. I look forward to reaching a compromise that works for all parties involved. Thank you in advance, Jill M. Bowers Jill M. Bowers Service Planner Santa Ana District 141 S. Grand Ave. Santa Ana, CA 92705 714-973-5453/PAX 52453 Fax: 714-973-5790/52790 Mobile: 714-415-8178 fill. bowers@sce.com