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CC Resolution 12073RESOLUTION NO. 12073 BEING A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL APPROVING AN APPEAL AND OVERTURNING THE PLANNING COMMISSION DETERMINATION THAT A NONCONFORMING USE (LIQUOR ESTABLISHMENT) HAD DISCONTINUED FOR A CONTINUOUS PERIOD OF SIX-MONTHS (PLN2016-293), THEREBY LOSING ITS VESTED RIGHT TO CONTINUE OPERATION ON PROPERTY LOCATED, AT 260 E. CAMPBELL AVENUE. After notification and public hearing, as specified by law and after presentation by the Community Development Director, proponents and opponents, the hearing was closed. The City Council finds as follows with regard to the discontinuation of a nonconforming use (PLN2016-293): Environmental Finding 1. The project is Categorically Exempt ..under Section 15321(a) of the California Environment Quality Act (CEQA), pertaining to enforcement actions by regulatory agencies to enforce or revoke an entitlement for a use issued, adopted or prescribed by the regulatory agency. Evidentiary Findings 2. The project site is located at 260 E. Campbell Avenue, Campbell CA 95008. 3. The project site is located on the south side of E. Campbell Avenue, east of S. Second Street and west of S. First Street. 4. The subject property is zoned C-3 (Central Commercial) and has a General Plan Land Use Designation of Central Commercial. 5., The Cardiff Lounge, under different ownership and name, had continuously operated as a bar in its present location since the 1960's, before the enactment of the current zoning ordinance. 6. On July 23, 1979, the City Council approved (by minute action) UP 79-16 for 260 and 266 E. Campbell Avenue allowing for the remodel of 266 E. Campbell Avenue. 7. On November 28, 1988, the City Council approved aCity-Initiated zone change of the Downtown Core Area to C-3, thereby enacting requirements for liquor establishments to be approved by a Conditional Use Permit. 8. On December 14, 2004, the Planning Commission adopted Resolution No. 3618 approving a Conditional Use Permit to allow late night activities and live entertainment in association with the existing bar. City Council Resolution No. Determination of Discontinued Use (PLN2016-293) Paae 2 of 3 9. A bar is defined as a liquor establishment pursuant to CMC21.72.020.L. Definitions, "L.". and means a retail activity that is primarily devoted to the selling of alcoholic beverages as a stand-alone bar or tavern, or in conjunction with a restaurant or nightclub facility, for consumption on the premises. 10. The C-3 zoning district requires a Conditional Use Permit to establish a liquor establishment. 11. While both Use Permits, UP 79-16 and PLN2004-63, serve to acknowledge the presence of the existing bar, neither serves to establish a Use Permit for the operation of a liquor establishment. 12. The liquor establishment, therefore, existed as a nonconforming use due to a lack of a Conditional Use Permit. 13. The evidence (e.g. sales receipts, emails, payroll documents, coordination with ABC) shows that the operators have been exercising an intent to continue operation of the liquor establishment. 14. Pursuant to CMC 21.10.60.E (Nonconforming uses and structures in the C-3- (Central Business District) zoning district: Whenever a nonconforming use has been abandoned or discontinued for a continuous period of six months, the nonconforming use shall not be reestablished, and the use of the structure and site shall comply with the regulations for the C-3 zoning district. 15. The City of Campbell lacks a codified definition for what constitutes an `abandoned' or `discontinued' use. 16. The City of Campbell lacks a codified definition for what constitutes a 'month'. 17. Campbell Municipal Code Section 21.72.10 provides that when a word is not defined, the most common dictionary definition is presumed to be correct. 18. Merriam-Webster defines `Abandoned' as: given up: left empty or unused <abandoned houses>. 19. Merriam-Webster defines 'Discontinue' as: to break the continuity of: cease to operate, administer, use, produce or take. 20. Merriam-Webster defines 'Month' as: a measure of time corresponding nearly to the period of the moon's revolution and amounting to approximately 4 weeks or 30 days or '/z of a year. Based upon the foregoing findings of fact, the City Council further finds and concludes that: 21. Cardiff & Cocktails did not discontinue operation of the liquor establishment for a continuous period of six months. City Council Resolution No. Determination of Discontinued Use (PLN2016-293) Page 3 of 3 THEREFORE, BE IT RESOLVED that the City Council adopts a Resolution approving an appeal and overturning the Planning Commission determination that a nonconforming use (liquor establishment) had discontinued for a continuous period of six-months (PLN2016- 293), thereby losing its vested right to continue operation at 260 E. Campbell Avenue; and the Council further recognizes that the use (bar/liquor establishment) is non-conforming and that the previously approved Use Permits (PLN2004-63 & UP 79-16) do not serve to establish any vested rights to the operation of a bar or liquor establishment as an approved conditional use; and this action shall be subject to the attached requirements (attached Exhibit A). PASSED AND ADOPTED this 1 st day of November, 2016, by the following roll call vote: AYES: COUNCILMEMBERS: Kotowski, Resnikoff, Cristina, Gibbons, Baker NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAIN: COUNCILMEMBERS: None APPROVED: 6~ ~ ' ~~- Ja on T. Baker, Mayor ATTEST: - (~ d Wendy od, City Clerk EXHIBIT A Determination of Discontinued Use (PLN2016-293) Where approval by the Director of Community Development, City Engineer, Public Works Director, City Attorney or Fire Department is required, that review shall be for compliance with all applicable conditions of approval, adopted policies and guidelines, ordinances, laws and regulations and accepted engineering practices for the item under review. Additionally, the applicant is hereby notified that he/she is required to comply with all applicable Codes or Ordinances of the City of Campbell and the State of California that pertain to this development and are not herein specified. COMMUNITY DEVELOPMENT DEPARTMENT Planning Division Sign: The `Open' sign on the front fagade shall be removed within fourteen (14) calendar days. Please be advised that this sign had been installed without the benefit of a building permit and does not comply with the C-3 (Central Business District) sign requirements (which prohibit exposed neon lighting). Building Permits: The Building Division shall conduct an inspection to determine whether or not building permits are required for the recent tenant improvements (e.g. reconstructing the bar), and require the operator to obtain building permits for the work performed if required.