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Planning Commission Meeting Minutes
WEDNESDAY FEBRUARY 23, 2005 7:00 P.M.
CALL TO ORDER: The meeting was called to order by Chairman Griffin at 7:05 p.m
PRESENT: Chairman Griffin, Commissioners Bailey, Francis, Hart, Price, Savage, Stopper
ABSENT: Commissioner Bailey
STAFF PRESENT: Chief Planner Rosen, Senior Planner Mullis, Assistant Planner Sowers, Assistant Planner Kusch, Engineering Director Hoppe, Senior Civil Engineer Voronel, and Recording Secretary Baker
FLAG SALUTE: Chairman Griffin
MINUTES: MOTION by Commissioner Savage, seconded by Commissioner Stopper, and CARRIED by a 5-0 vote, with Commissioners Hart and Bailey abstaining, that the Minutes of February 9, 2005, be APPROVED AS WRITTEN.
Chief Planner Rosen explained to the audience that Item No. 3 had been continued to March 9, 2005.

PUBLIC HEARING

ITEM NO. 1
PRJ04-00781 - ZON04-00077A. APPLICANT: DOUG BROWNE; PROPERTY OWNER: TIM DE FIESTA


Commissioner Savage recused himself and left the chambers. Deputy City Attorney Barlow explained that Commissioner Savage owned property within a 500 ft. radius of the proposed project.

Staff report dated February 16, 2005, was presented pertaining to a request to allow an approximately 130-seat church use in a 4,280 square-foot space in an existing industrial condo park, on property located at 1100 East Valencia Drive (southwest corner of Raymond Avenue and Valencia Drive) (M-G zone) (Categorically exempt under Section 15301 of CEQA Guidelines) (Continued from January 12, 2005).

Assistant Planner Sowers reported that a church was a conditionally permitted use in an industrial zone. She also explained that this item was continued from a prior hearing to allow the applicant to resolve parking availability discrepancies. She discussed the location, proposed hours of operation, required parking spaces, and also displayed the parking analysis. She reviewed the parking reconciliation handout, adding that staff had confirmed with the property owners which spaces were secured. Staff determined that 22 out of the required 44 spaces had been secured. After reviewing ownership information provided by the Orange County Assessor, Assistant Planner Sowers discovered a discrepancy, in that prior letters were sent to business tenants, and not the property owner. Staff recommended adoption of the resolution of denial because inadequate parking was available, which would be detrimental to the neighborhood and the surrounding area.

Commissioner Stopper asked for a review of the packet of information handed out. Assistant Planner Sowers displayed on the overhead the items and explained that employees had signed some letters instead of property owners, and other property owners had withdrawn their support after showing original support. She also stated that one letter of support was submitted before the meeting granting the use of three additional spaces, bringing the total to 25.

Commissioner Price asked if the letter which arrived late from unit 1166 was signed by the tenant or the property owner. Assistant Planner Sowers stated that in that case the tenant was the property owner.

Public hearing opened

William Kennedy, attorney for the Inland Empire Baptist Association, stated that there was a disagreement between the City and the church regarding the number of parking spaces acquired. He had sent a letter to Assistant Planner Sowers the previous week, but had not had a chance to meet with her. He believed that the church had acquired 52 parking spaces currently, and that the church's presence would alleviate crime, which often occurs on Sundays. He proposed to meet with staff and the church to discuss the parking spaces, since there was a difference of 30 spaces.

Deputy City Attorney Barlow asked if he was requesting that the item be continued, and Mr. Kennedy responded affirmatively. He stated that he was told by Mr. Klor, the Building Manager, that 18 unassigned spaces were non-exclusive and available for church use.

Commissioner Francis asked what the intention was for the 18 unassigned spaces, and Mr. Kennedy answered that they were for the general use of the entire complex. Mr. Kennedy did not feel there would be a conflict, since the church would use the spaces when the other tenants were not present.

Commissioner Price asked where the spaces were located, and staff pointed out on the map that they were located at the northeast corner of the property.

Commissioner Francis stated that they would not be assigned to the church. William Kennedy said that those spaces would not normally be used on Sundays and Wednesday evenings.

Commissioner Stopper asked how long Mr. Kennedy had been legal counsel for the church. He stated that he had been employed for two weeks.

Pastor Wiley Drake, from Buena Park, believed that the request for a continuation was fair, and there needed to be an agreement. He read several verses from the Bible to the Planning Commission, and asked that the City allow this church to operate in the City.

Doyle Braden, Director of Missions for the Southern Baptist churches of Orange County, stated that it was the church's desire to be a good neighbor and not to be contentious. He knew Mr. De Fiesta, who was a good man and neighbor. Their organization had five other similar facilities, which were compatible in the industrial areas, with no conflicts. Saddleback Church has had 40 different buildings in its history, and this would most likely not be the final location of this church. He found that it takes approximately seven different moves before a church reaches the financial ability to purchase the property necessary for its use. He encouraged the Planning Commission to take attorney William Kennedy's advice and give the church more time. He said that the church wants to be a blessing to the owners of the complex.

Tim De Fiesta, pastor of Cornerstone Christian Fellowship, gave a presentation. He explained the proposed office hours, and the church schedule showing times of the day and days of the week for operation.

Mr. De Fiesta stated that he had the approval of the following people for parking spaces:

1104 Philip Maloney 4 spaces
1106 Richard Zele 5 spaces
1108 & 1112 Sky & Denise Eastin 9 spaces
1124 Soya Tayui 5 spaces
1164 Tom Kleihinz 4 spaces
1166 Dr. Zeineh 4 spaces
1172 Helen Huang 5 spaces Total 36 spaces

Mr. De Fiesta had pictures to display showing available parking on Saturdays and Sundays, but he was not able to access the presentation. He spoke about a parking easement referenced in Exhibit B from documents provided at the prior hearing and stated that he believed an additional 18 spaces were available in this area. He reported that he was unaware that some of the letters were signed by tenants, and not the property owners. He spoke to the other owners in attendance and said that he understood their concerns, but he felt the church would be a good change for the community. He thanked the commissioners and said that he hoped that as they made a decision they would search their heart and consider other values that a church brings.

Jack Abouchar, owner of three condos, said he agreed that the church would be a good neighbor, but still felt it was a poor location, and there were discrepancies in the count of parking spaces.

Doug Browne, applicant, felt that other property owners should be aware that a church was an appropriate use for this area. He felt that a finding of facts must be determined, and the Planning Commission may not only listen to testimony, but must decide on evidence to make a factual finding. He asked that the CUP be granted and then make a determination if sufficient parking existed.

Tom Whitney, owns three units and discussed:
  • security issues
  • concerns with safety
  • possibly adding shifts, requiring more parking
  • the parking issue had not been resolved after three meetings
  • it was not a compatible use for the area
  • referenced the photos of site conditions presented at the prior hearing
Max Ahmadi, land use consultant, stated that the church was a constitutionally protected activity, and disagreed with staff's findings. He suggested that the seating be modified to 85 seats. He discussed the higher standard of scrutiny in the court. He reviewed several findings and suggested a third party review. He referred the Planning Commission to Alameda Books vs. the City of Los Angeles regarding constitutionally protected institutions.

Lynn Abouchar, owner of units 1136, 1138 and 1140, stated that she favored churches, but would be against any assembly group that was going to bring 130 people and grow to possibly over 200. She felt staff did a great job in reconciling what actually was permitted parking. She hoped the church would grow, but felt it should be in a different location.

Commissioner Francis asked how long the Abouchars have owned the property, and Mrs. Abouchar stated that they have owned it for 26 years.

Ray Hover, Associate Pastor for the Cornerstone Christian Fellowship, reported that funeral services and weddings were never conducted in the church. He also stated that the church would grow and, if that would violate the law of the land, they would move.

Denise Eastin, owns two units and operates a machine shop in the same building as the applicant. She stated that she felt the church would be bound by the hours of operation stated in their application. She encouraged the Planning Commission to come to a wise, just, and reasonable decision.

The Planning Commission took a break for 15 minutes.

Reconvened at 8:30 p.m.

Reverend Jason Lang thanked the Planning Commission for their time, and felt that their actions would set a precedent. His church is currently hosting Cornerstone Christian Fellowship. There are three other churches campus waiting for a place to meet. He agreed that it was a difficult issue, but he would support the Planning Commission's decision.

William Kennedy reminded the Planning Commission that the church was an owner, not a renter, and there might be a problem if their usage was denied.

Public hearing closed.

Chairman Griffin asked Deputy City Attorney Barlow to clarify any of the point presented.

Deputy City Attorney Barlow spoke to Mr. Browne's statement about listening to testimony as evidence. She stated that if a person offers information on their personal experience or observation it is valid to be considered as evidence. She also stated that Alameda Books was an adult book store and did not apply to what the Planning Commission was reviewing. She had previously explained RLUPA to the Planning Commission, and understands that religious uses cannot be treated differently than other assembly uses. They are not considering if a church was an appropriate use in this zone, they are considering whether this use was appropriate in this particular location.

Commissioner Price stated that this item has also been before the Planning Commission in October 2004, and January 2005. The applicant was advised in October that there were parking concerns, and Commissioner Price was not persuaded that the parking situation had been satisfied. He stated that no matter what type of assembly use is proposed, the applicant must demonstrate that adequate parking has been acquired. He stated that a conditional CUP could not be granted, as requested by Mr. Browne. He agreed with staff's analysis that there are only 22 spaces available, and felt that even if the 18 non-exclusive spaces located on Valencia are included, they still would not have adequate parking for this use. He stated that it was an incompatible use, and there was sufficient information provided in prior testimony given by Mr. Whitney where he displayed photos and discussed the business park operations and shared substantial risks of harm to the general public because of the juxtaposition of the industrial and proposed assembly use. Commissioner Price would not agree to a continuance, because it was his opinion that the applicant had sufficient time to convince the Planning Commission that sufficient parking has been secured. He could not support the project.

Commissioner Stopper stated that the issue was not whether the City will allow a church in Fullerton. It is about allowing an assembly of this size and whether they meet zoning and code ordinances. The Planning Commission does not consider financial net loss or gain, just proper land use. If there are safety hazards in the complex, there is a process in the city to handle it. He supported staff's request to deny without prejudice, which allows the applicant to return within six months.

Commissioner Bailey felt the church was incompatible with the industrial park and their growth would require more parking. He supported the recommendation to deny without prejudice.

Commissioner Francis agreed with other commissioners and felt this was established as an industrial zone from the beginning. He did not feel the church had an enforceable right to the parking. He supported staff's recommendation to deny without prejudice.

Commissioner Hart was concerned that the needs and rights of others in the complex were not being considered. The Planning Commission was asked to overlook the inadequacy of parking and the incompatible use of property to the detriment of other property owners. She supported staff's recommendation to deny without prejudice.

Chairman Griffin mentioned that Commissioner Price talked about a finding of incompatibility and asked the Planning Commission if they agreed to have that added to the resolution. Commissioner Price stated he thought it would be appropriate.

Deputy City Attorney Barlow recommended that after the Planning Commission took action they could direct staff to prepare a document to present findings and bring it back to the next meeting. They could consider and modify each proposed finding and conclusion, and then determine if the evidence supported the finding.

Commissioner Stopper asked Deputy City Attorney Barlow to explain the regular public hearing process. She said that there would not be a new public hearing, however, the applicant could speak to the findings as a regular consideration item.

MOTION by Commissioner Price, seconded by Commissioner Francis that the application for the CUP be DENIED without prejudice, and direct staff to make the appropriate resolution for consideration at the March 9, 2005 meeting. Motion passed unanimously by voting members present, 6 - 0.

Chairman Griffin asked Chief Planner Rosen to explain to the audience that staff would be preparing a resolution of facts and findings from the last three hearings to support approval for denial. It will be an agendized item at the March 9, 2005 meeting, the public can speak to the facts and findings, and the Planning Commission can take final action. There would be a 10-day appeal period after the adoption of the resolution.

William Kennedy asked for a point of personal privilege for a legal question. He asked if the applicant waived the right to the notice of hearing, could the Planning Commission go forward and perfect the appeal rights. City Attorney Barlow stated that the resolution had not been prepared with findings of incompatibility because they could not predict the outcome of the hearing so no resolution could be adopted at this meeting.

The Planning Commission took a five minute break.

The Commission reconvened at 9:05 p.m.

Commissioner Savage rejoined the meeting.

ITEM NO. 2
PRJ04-01159 - SUB04-00012. APPLICANT AND PROPERTY OWNER: PAUL SMITH


This item was withdrawn.

ITEM NO. 3
PRJ04-00859 - ZON04-00087 - ZON04-00088 - LRP04-00017 - LRP04-00018 - SUB04-00006. APPLICANT: CONRAD SICK; PROPERTY OWNER: FULLERTON ELKS LODGE


MOTION by Commissioner Savage, seconded by Commissioner, and passed unanimously to CONTINUE this matter to March 9, 2005.

ITEM NO. 4
PRJ04-00865 - ZON04-00090. APPLICANT AND PROPERTY OWNER: MUNIR M. ALI


Staff report dated February 23, 2005 was presented pertaining to a three-month review of a Conditional Use Permit expanding an existing car rental agency to have more than 10 vehicles on property located at 824 E. Commonwealth Avenue (south side of Commonwealth Avenue, between approximately 124 and 244 feet west of Linwood Avenue (C-1 zone) (Categorically exempt under Section 15332 of CEQA Guidelines). A vicinity sketch was displayed.

Assistant Planner Kusch stated that the item came before the Planning Commission in November, 2004, and was approved, subject to certain conditions. In December 2004, staff presented to the Planning Commission a 30-day status update. That review found that the conditions of approval to be met within a 30 day time frame were satisfied. The Commission would now be conducting the three-month review. The conditions of approval that were to be completed within a three-month time frame were:
  • To relocate an existing fence outside the required front landscaped setback - which had been completed by the applicant
  • Knox box for the fence - has not been provided as of yet
  • Submittal of landscape and irrigation plans and installation of plantings
  • Installation of a trash enclosure, permits pulled, trenches dug. No footing or walls for trash enclosure.
Staff visited the site today and displayed photos. Staff received two e-mails from neighboring businesses. Hiltscher Photo Studio adjacent to Rent for Less was concerned that its property was being used for parking of rental cars and employees of Rent for Less, and they did not feel that the use was compatible in this neighborhood. A letter was forwarded to staff from Classic Ceilings, another neighboring business, which had the same concern with parking. Another e-mail was received from a neighbor to the south who felt that the use was not compatible with the adjacent residential use. The lighting is not being shielded, as required. Neighbors were also concerned with water drainage to their property. The previous owner had not paved the area along the rear property line7 and now that it was paved, the drainage problem was exacerbated.

Assistant Planner Kusch explained that one condition of approval restricted washing RVs until a water quality plan was submitted. The washing of RVs is still occurring and contributing to the drainage concern. Vehicle repairs are also occurring on site, which is in violation of a condition of approval. Customer parking is being used for employees and the current picture shows that the drive aisle was not clear. The construction of the trash enclosure temporarily offsets the available parking spaces. Rental cars were parked in the handicapped parking area, and the area assigned for employees and customers. They are not complying with the condition to maintain the required amount of parking for employees and customers. Assistant Planner Kusch identified on the map the apartment complex where the second story bedrooms receive glare from the lighting.

Chairman Griffin stated that the Planning Commission had received two e-mails and a letter, and asked that they be made part of the public record.

Commissioner Francis asked what staff recommended. Assistant Planner Kusch stated that this was a status report. The Planning Commission would not be taking any action, just receiving the report. With the evidence provided, the Planning Commission could set a hearing for discussion of possible revocation of the CUP. Staff is recommending that it be reconsidered in May. Chief Planner Rosen commented that because serious concerns have been raised by the neighbors, a full review of this item with all conditions will be held in May at a noticed public hearing.

Commissioner Francis asked if that hearing would be open to public comment. Chief Planner Rosen answered that any item on the agenda could be discussed by the public, and urged the applicant or others to speak at that time.

Commissioner Bailey asked if the property owner operated without a permit for a year, and Assistant Planner Kusch answered affirmatively. Commissioner Bailey asked if the water plan had been submitted, and not yet approved. Assistant Planner Kusch answered affirmatively, adding that there were corrections to the plan regarding the drainage of the property going to the street, instead of the adjacent properties. Commissioner Bailey asked how they could mitigate the lighting problem, and Assistant Planner Kusch answered that lighting shields could be used. Commissioner Bailey discussed groundcover concerns. Assistant Planner Kusch stated that what was installed did not match the landscape plan, and staff was working with the applicant on this item.

Commissioner Stopper discussed allowing the applicant to proceed with the list of conditions. He asked if anything on the list of conditions is not being handled. Assistant Planner Kusch stated that the neighbors' comments about parking relate to the compatibility issue. Because the applicant is not in compliance, it is causing a compatibility problem with their neighbors. Also, they are not maintaining a drive aisle. The condition was to allow for fire access, parking for customers, employees and rental vehicles in the back of the property. Assistant Planner Kusch stated that there was not sufficient parking available when he visited the site. Commissioner Stopper asked if Assistant Planner Kusch was comfortable with the applicant's understanding of the feedback. Assistant Planner Kusch did not feel that the applicant had showed good faith in complying with the conditions, and a revocation hearing might be needed.

Chairman Griffin asked if there had been calls to code enforcement or police about parking issues or water runoff. Assistant Planner Kusch stated that there have not been any subsequent complaints, other than the letters received since the original CUP was approved. There was a pending code enforcement case which was contingent upon approval of the CUP.

Commissioner Savage asked how the drainage was being addressed. Assistant Planner Kusch stated that it is being addressed by the required water quality management plan. He stated that the current wall has a hole for drainage and the neighbor believes that the new pavement has exacerbated the drainage situation and the washing of RVs has added to the problem.

Commissioner Bailey asked if the Knox Box was for Fire Department access, and was it primarily a safety issue because of flammable materials. He also asked if the Fire Department would allow them to continue business without a Knox Box. Assistant Planner Kusch explained that staff was concerned with maintaining the drive aisle to access the property, since there is the likelihood of flammable materials being stored in the back of the property.

Public hearing opened.

Munir Ali, property owner, stated that they are working hard, but the rain has delayed their work for the last two weeks. He explained that the City had required that a new driveway now needs to be created, and the Fire Department has requested a 36-inch gate in the fence. The handicapped parking spaces are open, and his employees have been parking in the neighboring spaces because of the construction. He denied having heard from the neighbors previously.

Commissioner Stopper asked if Mr. Ali had copies of the e-mail the Planning Commission received, and Mr. Ali answered negatively.

Commissioner Bailey referred to the e-mail from Mr. Hiltscher which stated that "35 polite visits were made to Rent for Less" and asked Mr. Ali to comment. Mr. Ali stated that he had not heard any complaints in the past, and did not have a copy of the letter.

Commissioner Savage asked why the landscaping did not match the landscape plan, and why a Knox box had not yet been installed. Mr. Ali stated that they are still working on it and he could not answer until he communicated with the contractor and the architect.

Commissioner Francis asked what was stated on the business license as to the nature of the business. Mr. Ali replied that he was the property owner, and not the business owner, and did not know what was listed on the business permit.

Chairman Griffin asked if all concerns had been clarified, and Mr. Ali answered affirmatively.

Commissioner Savage questioned how soon a revocation hearing could be scheduled. Chief Planner Rosen answered that this item could be heard at the April 13, 2005 meeting.

Commissioner Francis asked about the business license. Assistant Planner Kusch stated that he signed it and it limited them to rent 10 vehicles or fewer. He stated that originally they complied.

Commissioner Hart asked how many vehicles could be washed without a water quality plan. Assistant Planner Kusch replied that a commercial operation required a water management plan, regardless of how many vehicles are washed. Heavy fines would be imposed if a business does not abide by State and Federal rules, and the water must be treated before leaving the property. Chief Planner Rosen was not sure what type of filtration or clarifying system would be needed before the runoff reached the sewer or storm drain.

Chairman Griffin felt that even if one vehicle was being washed, it would require a NPDES plan.

Commissioner Bailey stated that:
  • The applicant was notified 1 years ago of the need for the correct permits
  • Citations were written
  • Nine months later the CUP hearing was held
  • After three months, the applicant has still not complied with all conditions
  • He did not feel comfortable that they are working on all the issues
Commissioner Bailey also asked when the item returns to the Planning Commission, if that would be for a revocation hearing. Chief Planner Rosen stated that typically it would not be, it is normal to have a six-month review and then, if necessary, a revocation hearing would be set. Chief Planner Rosen felt that sufficient information had been presented by the neighbors and, since the applicant has not complied with all conditions, staff could set a revocation hearing to apply additional conditions or revoke the CUP.

Earnest Oliver 154 S. Yale Avenue, questioned the soundness of the structures on this property. He felt it was an eyesore to the community; it was an old structure with add-ons that were possibly not permitted and were not sound, with perhaps faulty plumbing and electrical. He felt the sidewalk in front was very limited, and a safety hazard. He asked that the building be condemned and removed and a nice structure be built to replace it. Commissioner Bailey assured Mr. Oliver that City staff is reviewing all aspects of this project and the plumbing and electrical would have to be to code.

Commissioner Stopper concurred that a May hearing should be set to give the Planning Commission options for action. He requested that Code Enforcement inspect the property and answer possible questions beforehand.

Commissioner Savage added that the May hearing should include possible revocation action because of the long history of lack of total cooperation.

Commissioner Francis stated that if the original intention was to rent 10 or more cars, neighbors would have been noticed. He felt this was backwards, that they should have gotten the CUP first. Chief Planner Rosen stated that the notice would be as if it was a new CUP. The applicant would have to show full compliance with the conditions of approval and the Planning Commission will either accept, modify, add conditions, or revoke the CUP.

Commissioner Price emphasized that the Planning Commission could not take action tonight, they could only receive the item.

MOTION by Commissioner Stopper, seconded by Commissioner Hart, and CARRIED unanimously to receive and file the staff report.

OTHER MATTERS

ITEM A Staff report dated February 23, 2005 was presented pertaining to a resolution of intent regarding amending Title 15 of the Fullerton Municipal Code regulating the renting of parking spaces in multi-family developments.

Chief Planner Rosen reported that this amendment would prohibit or restrict the renting of parking spaces in multi-family developments. A complaint was received by a member of the community indicating that landlords have been renting several spaces to tenants in the complex, in some cases not leaving an on-site parking space for another tenant. Staff intends to rewrite the zoning code to ensure that at least one space will be provided for each tenant.

The title of Resolution No. PC-05-04, ADOPTING a Resolution of Intention to consider AMENDING Title 15 of the Fullerton Municipal Code regulating the renting of parking spaces in multi-family developments was read and further reading was waived. MOTION by Commissioner Price, seconded by Commissioner Savage, and PASSED unanimously, that said Resolution be ADOPTED AS WRITTEN.

COMMISSION/STAFF COMMUNICATION

Commissioner Stopper discussed the recent approval by the City Council of the review of downtown Fullerton. Chief Planner Rosen reported that the Redevelopment Agency authorized staff to contract with a consulting/planning firm to update the transportation study done in 1995, and look at possibly expanding the study area.

Commissioner Francis asked if this was the study done originally by the Arroyo Group. Chief Planner Rosen answered affirmatively, but added that another group was selected for the update.

Chairman Griffin thanked Commissioner Stopper for his diligence on this matter. He felt it was an excellent investment and worth the effort.

Commissioner Bailey stated that the Technology Commission had successfully launched the Wireless Access network and it is working in the downtown area.

Commissioner Francis asked if the Elks Lodge item scheduled for 3/9/05 could be considered at 4 p.m. Chief Planner Rosen responded that since that agenda had already been advertised for 7 p.m., it would not be possible to begin a 4 p.m. However, snacks and coffee would be provided.

REVIEW OF COUNCIL ACTIONS

Already discussed under Commission/Staff Communication.

PUBLIC COMMENTS

There was no one from the public who wished to speak on any matter within the Commission's jurisdiction.

AGENDA FORECAST

The next regularly-scheduled Planning Commission meeting will be held on March 9, 2005, at 7:00 p.m.

ADJOURNMENT

There being no further business, the meeting was adjourned at 10:00 p.m.
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