Modification to CUP - Withdrawn - 2009~.;.r.;~1,1J~
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CITY of CAMPBELL
Conu»tu~ity DeveloE~ment I~)zpartmei.c
June 11, 2009
BP West Coast P~
Attn: Kent Allen
4 Centerpointe D:
La Palma, CA 90
Ethel Barnhart
1860 W. Campb
Campbell, CA 9
Re: Notice
Arco ~
Dear Property
-1066
Avenue
08
oncompliance
'M ~ 1860 W. Campbell Avenue
Following the wi hdrawal (reference enclosure) of application PLN2009-12 for a Modification to a
previously appro ed Conditional Use Permit (UP 83-07) to allow 24-hour operation of an existing
service station a d convenience market located at the above referenced property, the unpermitted
24-hour operatio of this establishment is herein found in noncompliance with the Campbell
Municipal Code CMC) pursuant to CMC § 21.68.020.
The subject pro erty is classified by the City of Campbell Zoning Map as C-1 (Neighborhood
Commercial), su ject to the provisions of CMC § 21.10.040 pertaining to lands classified as C-1
(Neighborhood ommercial). CMC § 21.10.040 indicates that "late night activities," defined in
part by CMC § 2 .72.020 as "land use activities operating between the hours of 11:00 PM and 6:00
AM....," shall o ly be permitted with approval of a Conditional Use Permit allowing such use.
On July 26, 19 3, the subject property was granted a Conditional Use Permit (UP 83-07) for
construction and operation of a service station and convenience market with off-sale of beer and
wine, adopted b Resolution No. 2218 of the City of Campbell Planning Commission. In 1983, late
night activities ere not defined or specified by the Campbell Municipal Code as a use requiring a
Conditional Use ermit. Resultingly, Conditional Use Permit UP 83-07 did not permit or allow 24-
hour operation o the establishment.
Typically this si uation would not have effected or encumbered the subject service station and
convenience ma ket as the establishment could continue to operate as a legal non-conforming use
subject to CMC 21.58.040.
7(1 iVorrh First 5tre~r ~ Campbe~l_ California 9500~i-1 3? i ~ ~rr! 40S.~6G.2140 FAx 408.S71.i 140 ~rnn -i07.R('~r,.??~)U
Notice of Noncom liance - Page 2 of 2
Arco AM/PM ~ 18 0 W. Campbell Avenue
However, on Apr 1 3, 2001, the City of Campbell City Council adopted Ordinance No. 2002
requiring all busi esses with late-night activities within certain commercial zoning districts to
obtain a Conditio al Use Permit to allow such activity. The ordinance specified an amortization
period of 24 mont s from the latter of the effective date of the ordinance or the date the use became
non-conforming. fter such time, existing uses with late-night activities would have to come into
compliance with t e ordinance by either ceasing operation between the hours of 11:00 PM to 6:00
AM or by applyin for a Conditional Use Permit to allow activity during these hours.
As Conditional U e Permit UP 83-07 did not specifically permit or otherwise allow 24-hour
operation of the s bject service station and convenience market, the establishment was subject to
the amortization r quirement indicated by Ordinance No. 2002. As a result, the subject service
station and conve fence market, operating pursuant to Conditional Use Permit UP 83-07, is
permitted operatio only during the hours of 6:00 AM to 11:00 PM, unless a Modification to the
Conditional Use P rmit is granted allowing continued 24-hour operation. Otherwise, operation not
in compliance wit these hours is a violation of the Campbell Municipal Code.
Therefore, you are hereby notified that within fifteen (15) calendar days from the date of this letter,
you must either fi e a Modification application to allow the continued 24-hour operation of the
subject service sta ion and convenience market or cease all operation between the hours of 11:00
PM to 6:00 AM. I either of these two actions do not occur prior to Friday June 26, 2009, a date
will be set for a p blic hearing in front of the Planning Commission to consider the revocation or
modification of C nditional Use Permit UP 83-07, as allowed by CMC § 21.68.020. The public
hearing will be hel in conformance with the requirements of CMC § 21.64. You will be notified in
writing 10 days be ore the hearing date and have the right to speak and be heard at the meeting.
If you should have any questions, please do not hesitate to contact me at (408) 866-2731 or by
email at kirkHnu,ci vofcampbell.eom.
Sincerely,
AI
Community Development Director
Encl: Confirmation~of Withdrawal, dated June 11, 2009
cc: Kirk Heinric s, Community Development Director
Ciddy Worde 1, Contract Planning Manager
William Seli mann, Campbell City Attorney
Susan Morga o-Grey, Code Enforcement Officer
Daniel Fama, Assistant Planner
Jonathan Ra os, Stantec Architectural, Inc., 1137 N. McDowell Blvd, Petaluma, CA 94954
Stephen Alle Jamieson, Esq., 426 Culver Blvd., Playa Del Rey, CA 90293
File No: PL 009-12
. ~~- • C.4~I//
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~,
~~,,~~,.
~I~~ o~ ~P.M)1'B~I~L
Communirv I_~evelopment DeErunr~ert
.Tune 11, 2009
Jonathan Ramos,
Stantec Architect
1137 N. McDowe
Petaluma, CA 94~
Re: Confirm
File No:
1860 W.
Dear Mr. Ramos,
Your request
approved Cot
station and cc
~l, Inc.
Blvd.
4
of Withdrawal of Application
009-12
Abell Avenue
withdrawal of application PLN2009-12 for a Modification to a previously
nal Use Permit (UP 83-07) to allow 24-hour operation of an existing service
fence market located at the above referenced property has been received.
The .Tune 9, 200 continued public hearing of the Planning Commission to review this item was
closed and no ac ion was taken. Due to the incurred staff cost of reviewing this application, no
refund of paid fe swill be tendered.
If you should
email at dani~
Sincerely,
,~1
~~~
G
Daniel Fama
Assistant Pla
cc: Kirk Heinri
Ciddy Wore
BP West G
Stephen Al
any questions, please do not hesitate to contact me at (408) 866-2193 or by
itvofcatnnbell.com.
s, Community Development Director
1, Contract Planning Manager
;t Products, Attn: Kent Allen, 4 Centerpointe Dr., La Palma, CA 90623-1066
Jamieson, Esq., 426 Culver Blvd., Playa Del Rey, CA 90293
70 1V'orri~ Firc; Stree~ €.ampbell. Californi.i `)SOOA-14~ ~ ~r..i_4O~s.86i~.214~~ ~~ rA~: ti0+', f371 5140 'ti~i~ 4U3.R(,(,.~.?~)(I
MEMORAINDUM
of ' cq,h
ne
V~• r
.
F L
•~2CH A0.0,
City of Campbell
Planning Division
To: Chai Ebner and Members of thenPlanning Commission
From: Dan'el Fama, Assistant Planner) F
Via: Kirk Heinrichs, Community Development Director
Subject: Wit drawal of Application
File o.: PLN2009-12 ~ 1860 W. Cam bell Ave.
Date: 6/9/2009
Staff has receiv d a withdrawal request for this application. The applicant will be informed that
the existing 24- ur operation of the subject service-station and mini-market is in violation of the
Campbell Muni ipal Code (CMC). Staff will issue a Notice of Noncompliance pursuant to CMC
§ 21.68 - Revoc tions and Modifications. The Community Development Director intends to set a
date for a public hearing to consider revocation or modification of the existing Conditional Use
Permit (UP 83-0 ).
Encl: Withdrawal Request
f
SWntec
June 9, 2009
File: 200716
City of Campl;
70 N. First Str
Campbell, CA
Attention:
Stantec Architecture Inc.
1137 North McDowell Boulevard
Petaluma CA 94954
Tel: (707) 765-1660
Fax: (707) 765-9908
- Planning Dept.
Fama
Dear: City of Ca pbell Planning Commission:
Reference: UP Modification (PLN2009-12)
rco Gas Station
860 W. Campbell Avenue
ampbell, CA
Mr. Fama:
VIA FACSIMILE & E-MAIL
RECEIVED
JUN Q 9 2009
CITY OF CAMPBELL
PLANNING DEPT.
Please accept t is letter as the applicant's withdraw) of the pending application for a modification of the
existing CUP to Ilow late night use (PLN2009-12). As a result of this withdraw) there will be no appearance
tonight at the PI nning Commission meeting and please take the hearing off calendar. There should be no
further processi g of the application and no decision given this withdraw).
I wanted to thanl~ Staff and the City for their time and effort in processing this application to date.
This withdraw) is made after, and based upon, extensive research and consideration, both of the City files and
relevant statute nd case law. Based thereon it is clear there is no legal requirement for this long term
business with C nstitutionally protected vested property rights to apply for a CUP, and be subject to
Conditions that liminate or impair its ability to operate 24 hours as it has already operated that way for many
years.
BP, howev r, remains committed to being a good corporate citizen in Campbell, and being responsive to
the community i which it has done business for over 26 years at this location with these hours. BP can, if
the City so desir s, therefore voluntarily, between 11 p.m. and 5 a.m., do the following: shut down the pump
top video monito s, stop using the PA system, install light shields around the perimeter of the canopy to direct
light down, and top deliveries. BP can also voluntarily install signs prohibiting loitering as well as signs
requesting Gusto ers to be quiet in their use of and exit from the site.
For the rec rd, please find our legal analysis why the City of Campbell may not require the ARCO
AM/PM located t 1860 W. Campbell Avenue, Campbell, CA, to seek a Conditional Use Permit for late night
use as follows, a d therefore why this application is being withdrawn at this time:
Starrtec
June 9, 2009
Daniel Fama
Page 2 of 5
Reference: CU Modification (PLN2009-12)
Arc Gas Station
186 W. Campbell Avenue
Ca Abell, CA
FACTUAL BAICKGROUND
26 years ago, in 1983, the City of Campbell passed Resolution No. 2218, approving construction of a mini
market and gas tation, with an off sale beer and wine license at 1860 W. Campbell Avenue. Resolution No.
2218 at that tim provided conditions under which the ARCO AM/PM had to operate. That Conditional Use
Permit implicitly pproved 24 hours of operation. Since 1983, therefore, ARCO AM/PM has been operating
twenty-four hour per day.
ARCO AM/PM s been licensed by the State Department of Alcoholic Beverage Control, per a Type 20 ABC
license, to sell b er and wine at this location since its inception. There are no operating restrictions for hours
of sale in this A C license and thus, by State law, it has offered beer and wine for sale between 6:00 a.m.
and 2:00 a.m. fo as many years.
ARCO AMIPM as located in a C-1 zoning district (Commercial Residential), and continues to be in a C-1
zoning district to ay.
18 years later, o April 3, 2001, the City of Campbell adopted Ordinance 2002 which enacted CMC 21.66 et
al. That CMC C de Section purported to require businesses in Campbell's commercial zoning districts to
obtain a Conditi nal Use Permit if they operated between the hours of 11:00 p.m. and 6:00 a.m. For
businesses lega ly operating since 1993, an amortization period of twenty-four months was provided. It
further stated th t businesses operating since 1993 had until May 3, 2003 to either not operate between
11:00 p.m. and :00 a.m. or apply for a Conditional Use Permit to operate between these hours.
On April 6, 2004 however, the City of Campbell passed Ordinance 2043. Ordinance 2043 changed and
amended the Zo ing Code, Chapter 21 of the Municipal Code. In adopting Ordinance 2043, the City deleted
21.66 of the Mu icipal Code.
II. CHAPTER 2 .66 IS NO LONGER PART OF THE CAMPBELL MUNICIPAL CODE AND MAY NOT BE
USED AS A BA IS FOR REQUIRING ARCO AM/PM TO SEEK A CONDITIONAL USE PERMIT
The City's claim hat ARCO AM/PM must obtain a conditional use permit pursuant to Chapter 21.66 of the
Municipal Code erroneous. Chapter 21.66 is no longer in the Municipal Code. The amortization period
language has b n deleted from the City Code, and the late night use provision for CUP was adopted long
after the ARCO M PM was established and operating in the same manner it operates today. It is well
established law at an administrative agency may only act pursuant to power conferred to it by statute or the
constitution. Fer ig v. State Personnel Bd. (1969) 71 Cal.2d 96 at 103-104; Rich Vision Centers, Inc v. Board
of Medical Exa iners (1983), 144 Cal.App.3d 110 at 114; American Federation of Labor v. Unemployment
Ins. Appeals Bd. (1996) 920 P.2d 1314 Cal. at 1329-1330. Actions which exceed that power are void.
Wilmot v. Comm ssion on Professional Competence (1998), 75 Cal.Rptr.2d 656 at 665; American Federation
of Labor v. Une ployment Ins. Appeals Bd. supra ;Rich Vision Centers, Inc v. Board of Medical Examiners,
supra.
Starttec
June 9, 2009
Daniel Fama
Page 3 of 5
Reference: CU Modification (PLN2009-12)
Arc' Gas Station
188 W. Campbell Avenue
Ca abell. CA
The City may n longer rely on Chapter 21.66 as a basis to require ARCO AM/PM to apply for a conditional
use permit. To o so clearly exceeds the City's power.
III. MUNICIPA CODE 21.58.030 AND 21.58.040 EXEMPT LEGALLY EXISTING NONCONFORMING
USES FROM O TAINING A CUP
The City of Cam bell's municipal code, §21.58.030 defines a nonconforming use as:
use or activity which was lawful prior to the adoption, revision or amendment of the Zoning
Code, but which fails by reason of such adoption, revision or amendment to conform to the current use
regulations fort a zoning district in which it is located.
21.58.040(6) pr vides that a "nonconforming use of a structure lawfully established before the enactment of
rezoning, reclas ification, or change of regulations, may be continued only in compliance with the provisions
of this chapter." Municipal Code 21.58.040 then enumerates restrictions on nonconforming uses. Subsection
H of Municipal de 21.58.040 states:
a use th t was established with conditional use permit approval but is a use no longer allowed by this
Zoning Code wit in the applicable zoning district may continue in operation, but only in compliance with all of
the provisions o the original conditional use permit. If the conditional use permit specified a termination date,
the use shall be iscontinued in compliance with that termination date.
In the insta t matter, the City of Campbell's Planning Commission issued a conditional use permit to
build the minim rket and gas station in 1983. The conditional use permit does not have a termination date.
ARCO AM/PM h s been operating continuously, 24 hours per day, since 1983 in compliance with the original
conditional use ermit. Since section 21.58.040(H) is the only potentially applicable Municipal Code section,
the ARCO AM/P may continue operation without the requirement of a CUP for 24 hour use.
IV. STATE LAV'(I EXEMPTS A LEGAL NONCONFORMING USE FROM THE REQUIREMENT OF
OBTAINING A ONDITIONAL USE PERMIT
Even if the City c
permit, which it c
conforming use i
that time in nonc
The rights of use
protected." Edm
of Supervisors (1
a conditional use
is limited. Bauer
continuously, any
ordinance, the C
Los Angeles, 44
f Campbell's Municipal Code explicitly required ARCO AM/PM to obtain a conditional use
oes not, state law nevertheless exempts ARCO AM/PM from that requirement. A legal non-
a "lawful use existing on the effective date of the zoning restriction and continuing since
nformance to the ordinance." City of Los Angeles v. Gage (1954) 127 CA2d 442, 443.
s of property under a nonconforming use "are well recognized and have always been
nds v. County of Los Angeles (1953) 40 C2d 642, 651; Hansen Bros. Enters., Inc. v. Board
996) 12 C4th 533, 552. Once a legal nonconforming use exists, the City's power to require
permit pursuant to a zoning ordinance enacted after the nonconforming business' existence
v. City of San Diego, 75 Cal.App.4th 1281, 1294 (1999). When the business operates
its character, mode of operation and use remains the same after enactment of the zoning
ty cannot require the preexisting business to seek a conditional use permit. Suzuki v. City of
al.App.4th 263 (1996).
Stattt,;ec
June 9, 2009
Daniel Fama
Page 4 of 5
Reference: CU Modification (PLN2009-12)
Arc Gas Station
18 W. Campbell Avenue
Ca Abell. CA
Here, ARCO A /PM has maintained the service station and mini market in the same condition and manner,
24 hours per da ,since 1983. Under state law, the City of Campbell cannot now force ARCO AM/PM to
obtain a conditi nal use permit for late night use.
V. EVEN IF T E COURT WERE TO FIND ORDINANCE 2002 AND CMC 21.66 SOMEHOW APPLICABLE,
A TWO YEAR ORTIZATION PERIOD IS UNREASONABLE
The City Code, nd State law, recognizes that a City may impose an amortization period to strip a
nonconforming se of its legal status. However, the amortization period must be a reasonable amount of time
in light of the in stment involved. United Business Com. v. City of San Diego (1979) 91 Ca3d 156, 189. To
determine what s a reasonable amortization period, the Court must weigh the public interest vs. the interest
of the business i volved. Metromedia, Inc. v. City of San Diego (1980), 26 Cad at 882 rev'd on other grounds
in Metromedia, I c. v. City of San Diego (1981) 453 YS 490. Factors to be considered include: "the amount
of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax
purposes, salva a value, remaining useful life, the length and remaining term of the lease under which it is
maintained, and the harm to the public if the structure remains standing beyond the prescribed amortization
period (citation nd quotations omitted]." Tahoe Regional Planning Agency v. King, (1991) 233 Cal.App.3d
1365 at 1397.
The ARCO AM/PM at issue has been operating in the same location since 1983, 24 hours per day.
Over the past t my-six years, ARCO AM/PM has continued investing in the business. As such a two year
amortization per od is insufficient and thus legally invalid.
VI. UNDER B SINESS AND PROFESSIONS CODE §23790, ARCO AM/PM IS EXEMPT FROM
OBTAINING A ONDITIONAL USE PERMIT FOR LATE NIGHT USE SINCE TO DO SO WOULD
ILLEGALLY AP LY SUCH A REQUIREMENT TO A PREVIOUSLY AND CONTINUOUSLY EXISTING
STATE LICENS D ALCOHOL USE.
Business a d Profession's Code §23790 allows preexisting premises, licensed by the Department of
Alcoholic Bever ge Control, as this one, exemption from zoning ordinances enacted later. §23790 preempts
local governmen ordinances.
In Bocatto .Hermosa Beach, (1994) 29 Cal.App.4th 1787, the City of Hermosa Beach enacted an
ordinance requir ng that all off-sale liquor stores, including those preexisting the enactment of the ordinance,
obtain a CUP to ontinue operation. supra at 1800. Relying heavily on Korean v. American Legat Advocacy
Foundation (199 ) 23 Cal.App.4th 376, 394-395, the Bocatto Court held that Business and Professions Code
Section 23790 " xempts from zoning ordinances off-sale liquor stores that predate the enactment of such
ordinances provi ing the two conditions are met." The two conditions of Section 23790 referenced allow
premises, which have obtained an ABC license prior to the "effective date of the zoning ordinance," to
continue ooerati n where:
Starrtet
June 9, 2009
Daniel Fama
Page 5 of 5
Reference:
Modification (PLN2009-12)
~ Gas Station
~ W. Campbell Avenue
Abell, CA
The premises retain the same type of retail liquor license within a license
classification.
The licensed premises are operated continuously without substantial change in mode
or character of operation(...]
CA BUS &IPROF Section 23790.
Here, AR AM/PM has maintained the same type 20 alcoholic beverage license since 1983.
Furthermore, A CO AM/PM has operated the licensed premises without substantial change in mode or
character of op ration since that time. The City of Campbell's Ordinance 2002 was not enacted until 2001
and not codifie as CMC 21.66 until 2002, then it was deleted in 2004. The addition of a requirement for a
CUP for late ni t use did not exist at all when the ARCO AM PM started operating back in 1983. Therefore,
Business and P ofession's Code §23790, which preempts the local ordinance, is applicable. As long as
ARCO AM/PM ontinues to operate its licensed premises in the same manner that it has always done, it
cannot be requi ed to obtain a conditional use permit for 24 hour use.
VII. CONCLU
Because this is long standing site with constitutionally protected vested property interests, no CUP for late
night use is req fired and thus this application is withdrawn. BP is hopeful, however, that the City will
appreciate the ffer to voluntarily do those things that are referenced above to address any concerns of the
neighbors. Ple se let us know.
Sincerely,
than Ram
P ject Manag
el: (707) 765-1
Fax: (707) 765-f
jonathan.ramos(
ITECTURE INC.
Campbell Planning Commission Minutes for June 9, 2009
Page 2
AGENDA MO IFICATIONS OR POSTPONEMENTS
There were n agenda modifications or postponements.
ORAL REQUESTS
There were
oral requests.
***
Chair Ebner
1. PLN200
Ramos,
Agenda Item No. 1 into the record as follows:
2 Continued Public Hearing (from the Planning Commission
meetings of April 28, March 24, and May 12, 2009) to consider
the application of Mr. Jonathan Ramos, on behalf of Stantec
Architectural Inc., for a Modification (PLN2009-12) to a
previously-approved Conditional Use Permit (UP83-07) to
allow 24-hour operation of an existing Arco service station
(convenience market and service pumps) on property owned
by BP West Coast Products located at 1860 W. Campbell
Avenue in a C-1-S (Neighborhood Commercial) Zoning
District. Staff is recommending that this project be deemed
Categorically Exempt under CEQA. Planning Commission
action final unless appealed in writing to the City Clerk within
10 calendar days. Project Planner: Daniel Fama, Assistant
Planner
Chair Ebner advised that staff has received a memo from the applicant requesting the
withdrawal of heir application. He asked staff what is the next step.
City Attorney illiam Seligmann advised that there is nothing to act on any more. He
added that he suspected that this item would be back at a later date either voluntarily,
through a Co a Enforcement proceeding or for action to modify or revoke the existing
Use Permit.
***
REPORT OF ~fHE_COMMUNITY DEVELOPME
There were n~ additions to this report.
Commissione Rocha stated that this applicant appears to have gone out of his way to
waste the tim of the Planning Commission and staff. That is very bad form. He
added that h hoped that they would have at least come before the Commission to
explain their c se. He expressed disappointment.
Chair Ebner concurred.
Item No. 1
of ' cAM~~
~~ ~
V r
0 0
y
E
ARCH ARC'
PLN2009-12
Ramos, J.
CITY OF CAMPBELL • PLANNING COMMISSION
Staff Report • June 9, 2009
Continued Public Hearing to consider the application of Mr. Jonathan
Ramos, on behalf of Stantec Architectural, Inc. for a Modification
(PLN2009-12) to a previously approved Conditional Use Permit (UP 83-
07) to allow late night operational hours (24 hrs) for an existing service-
station and mini-market (Arco-AM/PM) on property owned by BP West
Coast Products, LLC located at 1860 W. Campbell Avenue in the C-1
(Neighborhood Commercial) Zoning District.
STAFF RECOMMENDATION
That the Plannin Commission take the following action:
Adopt a R solution, incorporating the attached findings, approving a Modification
(PLN2009-1 ) to a previously approved Conditional Use Permit (UP 83-07) to allow late
night operati ns hours from 4:00 AM to 12:00 AM, Monday -Sunday for an existing
service-statio and mini-market (Arco-AM/PM), subject to the attached conditions of
approval.
ENVIROiYME TAL DETERMINATION
Staff recornmen s that the Planning Commission find that this project is Categorically Exempt
under Section 15 O1, Class 1 of the California Environmental Quality Act (CEQA), pertaining to
minor alterations to existing private structures.
PROJECT DA
Net Lot Area:
Gross Lot Area:
Bui!di,i~J, ~ rea:
Parking Provi
Parking Requ
2.1,869 sq. ft. (.50 acre)
33,225 sq. ft. (.75 acre)
2,849 sq. ft.
7
14 (1 space for each 200 sq. ft. of retail building area)
Requested Oper Tonal Hours: 24 hrs., Monday -Sunday
Recommended perational Hours: 4 AM to 12 AM, Monday -Sunday
Recommended usiness Hours: 5 AM to 11 PM, Monday -Sunday
SurroUnd:rig U
North: Single-Family Residential
South: Multi-Family Residential
East: Multi-Family Residential (San Jose)
West: Commercial
Staff Report - Pl
PLN2009-12 - 1
1g Commission Meeting of June 9, 2009
W. Campbell Avenue
Page 2 of 5
BACKGRO
The followings marizes the review of this application to date:
• January 2 , 2009: Application received.
• February 18, 2009: Application deemed incomplete
• March 2, 009: Revised application deemed complete.
• March 24 2009: First Planning Commission hearing held. Continued for two meetings at
the reque t of the applicant.
• April 28, 009: Second Planning Commission hearing held. Continued for one meeting at
the reque t of the applicant's attorney.
• May 12, 009: Third Planning Commission hearing held. Continued for two meetings at
the reque t of the applicant s attorney.
• June 9, 2Q09: Fourth Planning Commission hearing scheduled.
This application as been continued at the applicant's request so that the applicant's counsel and
the City Attorn y could discuss and research the applicant's concerns regarding the City's
authority to requ re a modification to BP's Conditional Use Permit that could limit the hours of
the station and i pose new conditions.
Additionally, the applicant has also taken the provided time to reach out to affected property
owners by arran ing an on-site meeting to discuss what measures could be taken to lessen the
impact of the sta ion's 24-hour operation. Staff has also engaged in further discussions with the
applicant with re pest to their willingness to further restrict the use of the electronic screens, and
have modified th conditions accordingly.
DISCiJSSION
A licant's Pro oral: The applicant is requesting approval of a Modification to a previously
approved Condit oval Use Permit (UP 83-07) to allow late night operations (24-hours) for an
existing service- ation and mini-market (Arco-AM/PM) located at 1860 W. Campbell Avenue,
west of the Kirk. ood Shopping Center (reference Attachment 5 -Location Map).
Public Commentk Qver the, course of this application's review, staff has received four letters
regarding this ap lication ;reference Attachment 6).
Protect Hist~: n April 3, 2001 the City Council adopted Ordinance No. 2002, which was
intended to brin into conformance those non-conforming or illegal uses operating late night
hours. The ordin nce requires businesses in the City's commercial zoning districts to obtain a
Conditional Use ennit to operate between 11:00 PM and 6:00 AM. Even businesses that were
previously "gran fathered" were required to comply with the standard hours of operation or
obtain a Conditio ial ~Jse Permit by the effective date of the ordinance in 2003.
At its meeting o duly 2n, 1983, the Planning Commission approved a Conditional Use Permit
(UP 83-07) peen sting construction of the service station and mini-market with off-sale of beer
and wine on the ubject property. As this Use Permit approval did not specifically allow for late-
~ught hours of peration, the service station is subject to the restrictions of the late-night
Staff Report - Pl nning Commission Meeting of June 9, 2009 Page 3 of 5
PLN2009-12 - 1 60 W. Campbell Avenue
ordinance. The service station has been operating 24-hours a day continuously since its
establishment. B West Coast Products (BP) was unaware of the restrictions imposed by the
late-night ordin ce. As part of a franchising transition of its service stations BP was informed
by staff that this location was not permitted 24-hour operations. BP was further informed that if
it wished to op ate the subject service station 24-hours a day, it would need to apply for a
Modification tot e existing Use Permit to allow for extended hours.
ANALYSIS
General Plan Desi nation: The General Plan land use designation for the project site is
Neighborhood C mmercial. The proposed late night operational hours in conjunction with the
existing service ation is consistent with this land use designation.
Zoning Desi n ion: The zoning designation for the project site is C-1 (Neighborhood
Commercial). T e C-1 Zoning District allows late night uses with approval of a Conditional Use
Permit.
Late Ni ht O er tions: The applicant is requesting approval for 24-hour operation of a service
station and mini- arket. No change in floor-layout or other physical change is proposed.
The project site buts multi-family residential dwellings (R-2 zoning) to the south and southwest,
and a higher den ity multi-family development in San Jose to the west. Additionally, the site is
adjacent to singl -family residential properties across Campbell Avenue to the north (reference
Attachment 7 - erial Image). Due to the proximity of residential uses, staff does not support the
applicant's requ st for 24-hour operations. Staff recommends, instead, granting the service
station two addit onal hours of operation in the morning and one additional hour in the evening,
for operational h urs of 4 AM to 12 AM with business hours (open to the public) of 5 AM to 11
PM.
A standard cond tion of approval has been added that allows for review of the Conditional Use
Permit by the Pl nning Commission if verified complaints are received by the City. If staff is
unable to imrne iately resolve the matter with the business owner/operator, the Community
Development Di ector may immediately modify the hours of operation, subject to the project
being brought ba k to the Planning Commission for review.
Gasoline Deliver
occur in the ear.
deliveries as nef
gasoline deliver
peak hours to li
As this project
deliveries is to 1
Therefore, staff
~s: The applicant's written statement indicates that gasoline deliveries typically
morning hours, but that the station needs the flexibility of being able to handle
~d, 24/7. Past Use Permit approvals for service stations have restricted hours of
s to varying degrees. Recent approvals limited deliveries to the evening/non-
it potential traffic impacts on adjacent intersections (reference Attachment 8).
to is not located at a major intersection, the primary reason to restrict fuel
pit noise impacts to adjacent residences in the early morning or late night hours.
commends that fuel delivery trucks be restricted to 7 AM to 10 PM, daily.
Parkin: The se vice station and mini-market is developed with seven parking spaces (not
including fuelin area queuing spaces). The mini-market requires one parking space per 200 sq.
ft., yielding a arking requirement of 14 spaces for the 2,849 square-foot building. The
Staff Report - Pl nning Commission Meeting of June 9, 2009 Page 4 of 5
PLN2009-12 - 1 60 W. Campbell Avenue
application for 2 -hour operations does not include an expansion of the tenant space nor another
change that wou d incur a greater parking demand.
f;lectronic Scree s: The subject service station is equipped with television screens located above
the fuel pumps. standard condition of approval requires that noise generated by such devices
not be audible "t a person of normal hearing capacity from any residential property." Given the
abutting resident al properties, these devices present a potential noise nuisance. Staff has added a
condition of app oval indicating that these devices may only be turned during the hours of 5 AM
to 10 PM.
Police De artme t Review: The Campbell Police Department has reviewed this application and
has i'lo objection to the applicant's request. Due to the proximity of residential properties to the
service station a d potential for adverse impacts to nearby residents, staff requested that the
Police Departure t provide a log of calls-for-service for the past two years related to the project
site. Police Depa ment staff indicated that the number of calls-for-service to this location are not
unusually high, nd are generally common for alate-night hours gas-station. The log shows
complaints rega ing power-washing late at night, loud noise from the displays on the gas
purnps, minor ltercations, petty thefts/shoplifting, general disturbances, and suspicious
behavior. Of the pproximately 131 calls-for-service received in the last two years (from March),
61 were received during the hours of 12AM to 6AM and 50 between 6PM and 12AM.
Architecture: Th s application does not propose changes to the building or to layout of the
subject property. However, the applicant has since filed for a building permit for an interior
remodel and an `image upgrade." The scope of the exterior work includes repainting the mini-
market building and fueling canopy, and refacing of the existing fuel dispensers. This work
constitutes a min r alteration, which is currently under review by staff.
Site and Archit ctural Review Committee: The Site and Architectural Review Committee
(SARC) did not review this application as no changes to the exterior of the building or site
configuration we e proposed at the time the application was submitted.
AL'TER`~ATIV
The service stati n has operated for 25 years as a 24-hour operation in compliance with its Use
Permit and with ut serious incident. Additionally, staff believes that the added conditions of
approval will mit gate most of the issues expressed by surrounding neighbors related to late night
operation. There ore, if the Planning Commission wishes to grant approval of the applicant's
re~,zest for 24-ho r operation, the Commission may take the following action:
1. .Adopt a Res lution, incorporating the attached alternate findings, approving a Modification
(PLN2009-1 to a previously approved Conditional Use Permit (UP 83-07) to allow late
night operati ns hours (twenty-four hours) for an existing service-station and mini-mart
(Arco-AM/P ), subject to the attached alternate conditions of approval.
Staff Report - Pl
PLN2009-12 - 1
~g Commission Meeting of June 9, 2009
W. Campbell Avenue
Page 5 of 5
Attachments:
1. Findings for .
2. Conditions o-
3. Alternate Fin
4. Alternate Coy
5. Location Mai
6. Public Comn
7. Aerial Image
8. Planning Cor
9. Written Desc
0. Project Plans
11. Site ;~hoto~r~
Prepared by
Approved by:
,pproval of File No. PLN2009-12
Approval for File No. PLN2009-12
'kings for Approval of File No. PLN2009-12 (24-hours)
ditions of Approval for File No. PLN2009-12 (24-hours)
mission Resolution Excerpts: No. 3797 & 3879
ption
~z. -__
Daniel Fama, Assistant Planner
Kirk H~iricl~s, Community Development Director