The URL can be used to link to this page

Home My WebLink AboutPH 1 USE PERMIT 87-6 06-05-89 · ' ~ PUBLIC HEARING A No. DATE: JUNE 5, 1989 ~~/~~ - I TO: FROM: SUBJECT: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL COIq~NITY DEVELOPMENT DEPARTMENT EXXON APPEAL OF A PLANNING CONHISSION DETEPJ4INATION ON EXPIRATION OF USE PERHIT 87-6 FOR OFF-SITE BEER AND IJINE SALES AT 14082 RED ~ HILL AVENUE RECOMHENDATION It is recommended that the City Council by Minute Motion uphold the Planning Commission decision that Use Permit 87-6 expired on June 1, 1988. BACKGROUND On April 24, 1989, the Planning Commission determined that Use Permit 87-6 had expired on June 1, 1988. This Use Permit originally authorized off-site beer and wine sales for an Exxon Mini Market and gasoline sales outlet at 14082 Red Hill Avenue (at Nisson Road). On May 1, 1989 the applicant filed an appeal, of the C6mmission's decision to the City Council and subsequently requested that - the matter be heard by the City Council on June 5, 1989. A public hearing notice identifying the time, date and location of the public hearing on this matter was published in the Tustin News. Property owners within 300 feet of the site as well as Parents Who Care were also noticed by mail. The applicant was also infdrmed of the availability of the staff report on this matter. As of Wednesday, May 31st, 137 petitions had been received by the Community Development Department opposing both the sale of alcohol at the subject location and any reversal of the Planning Commission's decision that the Use Permit had expired. These petitions are available upon request. DISCUSSION Based on advice from the Tustin City Attorney, the Tusttn Community Development Department on July 8, 1988 notified Exxon that their Conditional Use Permit 87-6 to conduct off-site beer and wine sales at an existing mini-market and gasoline station was null and void since Exxon had failed to use the subject premises for off-site beer and wine sales and had not applied for an extension of the Use Permit wtth4n the time period required by the Tustin City Code. City Council Report Use Permit 87-6 June 5, 1989 Page -two In response to the City's determination that Use Permit 87-6 was null and void, Exxon filed a petition for Writ of Mandate with the Orange County Superior Court to compel the City to' {1) reinstate Use Permit 87-6 and (2) to notify the California Department of Alcoholic Beverage Control (ABC) of such reinstatement. On January 6, 1989, the Honorable William Rylaardam denied Exxon's petition without prejudice. The basis for denial was that Exxon had failed to exhaust its administrative remedy of requesting a hearing and having the'matter first determined by the Tustin Planning Commission. Subsequently, in correspondence to City dated March 13, 1989, Exxon requested that the following issue be presented to the Commission for a hearing: "Did Exxon make sufficient use of Use Permit 87-6 between June 1, 1987 and June 1, 1988, such that it did' not expire?" After a lengthy Planning Commission public hearing on April 24, '1989, and review of the facts, the Commission determined that Use Permit 87-6 expired on June 1, 1988. The Planning Commission decision was supported by the following background information' Tusttn City iCode..and its Administration - Tustln City Code Section 9293{b) states that a Use Permit' "shall be null and void if not used within one year from the date of approval thereof or within any lbnger period of time if so designated by the Planning Commission or the City Council." In administering the above section of the Tustin City Code, it has been and is the Community Development Department's' policy to require that the holder of a use permit request an extension of the permit if the holder of the permit anticipates that they may not be .able to commence upon or complete construction of or initiation of the use prior to the expiration date of the permit, which is one year from the date of approval. Such r. equests for extension of time must be filed before the oneFyear period expires. This requirement is stated on all Use Permit appl i cart on ma teri al s recei red by appl i cants. A1 though Exxon knew' of the City' s policy and procedure for administering Tustin City Code Section 9293(b), Exxon failed to timely request an extension of Use Permit 87-6. Based upon the above circumstances, it has been the City's Community Development Department City Council Meeting Use Permit 87-6 June 5, 1989 Page three ,position that the subject use permit became null and void on June 1, 1988 and a new use permit application for the proposed off-site beer and wine sales was required The following is further discussion of the aforementioned facts which support the Planning Commission decision that Use Permit 87-6 expired on June 1, 1988' 1) Exxon Corporation's agent, Tri-State Engineering was aware of the City's Use Permit expiration policy and code provisions. Through Tri-State, Exxon requested on September 10, 1987, an extension of their Use Permit 86-30 to construct a mini-market and gas station at 14082 Red Hill Avenue approximately one month prior to the expiration of the Use Permit. At a public hearing before the Planning Commission on October 12, 1987, Exxon attorneys and agents presented evidence of their efforts to commence construction, which had not yet taken place. The Planning Commission approved a six month extension of Exxon's Use Permit 86-30. 2) By separate application filed on February 27, 1987, Tri-State on behalf of Exxon, applied for a second Use Permit (Use Permit 87-6) to sell beer and wine in conjunction with the mini-market operation authorized by Use Permit 86-30.' This s~parate application was approved by the City Council ion' June 1, 1987 after a denial by the Planning Commission. Subsequent to Exxon's Use Permit approval for off,-site sales of beer and wine, the City heard nothing further from Exxon, Tri-State or anyone else acting on their behalf with respect to Exxon's efforts to commence the sale of beer and wine. 3) To the City's knowledge, Exxon has never received an Alcoholic Beverage Control (ABC) license to sell beer and wine at the subject property and has never sold any beer or wine in conjunction with their mini-market and gasoline sales at the subject property. It should be noted that even if Exxon had a valid Use Permit, the ABC has previously recommended denial of Exxon's application for an ABC license on the grounds that the mini-market was too close to residences and because there was overwhelming protest received from members of the community (see ABC materials attached). Since the January 6th Superior Court hearing, the City ~has also learned that Exxon's dealer has formally withdrawn the application before the Alcoholic Beverage Control Board for an uff-site beer and wine license. By letter dated April 18, 1989, Exxon submitted its legal argument and evidence it would offer in support of a Planning Commission finding .that Use Permit 87-6 did not expire on June 1, 1988 (see attached Exhibit B .of Planning' Commission report dated April 24th). ,Exxon argued that the Community Development Department City Council Report Use Permtt 87-6 June 5, 1989 Page four central Issue ts whether Exxon "showed a good fatth tntent to proceed wtth the use". _._ It is the oplnlon of the City Attorney that Exxon should have shown the Planntng Commission 1ts "good fatth tntent to proceed with the use" before June 1, 1988, and that Use Permlt 87-6 became null and void on June 1, 1988, pursuant to Tusttn Ctty Code Sectton 9293(c) in the absence of such showing by Exxon. CONSLUSTON Based on the above decusslon, it is advised that the City Council uphold the Planntng Commt'ssion dectston that Use Permit 87-6 expired on June 1, 1988. CAS:pef Attachments: Planning Commission Report and Exhibits dated April 24, 1989 Planning Commission Minutes dated April 24, 1989 Community Deve~'opment Department