Title
Public Hearing to Consider Modification of UP-88-36 to Operate an Automobile Tire Service at 1200 Park Street to Revoke UP-88-36 to Terminate the Use Permit within 60 Days of Final Action by the City of Alameda
Body
To: Honorable President and
Members of the Planning Board
From: Andrew Thomas, Assistant Community Development Director
Date: May 8, 2017
Re: Public Hearing to Consider Modification of UP-88-36 to Operate an Automobile Tire Service at 1200 Park Street to Revoke UP-88-36 to Terminate the Use Permit within 60 Days of Final Action by the City of Alameda
Background
In July 2015, November 2015, and on November 28, 2016, the Planning Board held public hearings to address continued violations of conditions of approval for the use permit for tire repair services at 1200 Park Street. On November 28, 2016, staff cited the history of violations dating back to 2013, and recommended that the Planning Board amend the use permit to terminate in July 2017. After considering the staff recommendation and hearing from the property owner and the Big O Tire company (Big O) representatives, the Planning Board directed staff to continue to monitor the activities at the site and then schedule a new hearing in March or April of this year. Since the November 2016 public hearing, staff has witnessed and documented two violations of the use permit and received documentation from neighbors of additional violations.
Automobile repair and automobile tire services are prohibited by the Alameda Municipal Code (AMC) on properties that face Park Street. The current operation is permitted as a result of a 1979 conditional use permit, provided the use is in compliance with the use permit conditions, as amended over the years.
As documented in Exhibit 1, violations of the use permit conditions began as early as 1988, and have continued through March 2017. On-going violations of the use permit conditions resulted in Planning Board public hearings in July 2015, and on November 15, 2015, November 28, 2016. Since the November 2016 hearing, staff has documented two more violations of the Use Permit conditions.
The first Use Permit for automobile tire repair services on the property was approved by the Planning Board on March 19, 1979, over objections from neighborhood residents. At that time, because the Planning Board was concerned about the potential impacts of the use on the neighborhood, it approved a use permit for a period of five years. The 1979 use permit includes conditions that require that all automobile parking necessary to support the business be confined to the property (condition #2), that parking of cars on site be limited in duration (condition #3), that all work on cars will occur within the building (condition #4), and no cars will be parked overnight on the premises (condition #7). In 1982, Big O Tires took over the operations at the site.
On January 30, 1989, the Planning Board held a public hearing and revised the Use Permit (UP-88-36) to address non-compliance with condition #2. The 1989 use permit describes the use as a non-conforming use for automotive repair and adds a new condition requiring that the applicant “find an alternative long term parking site for customer cars, as well as for employees” within 60 days.
On May 10, 1990, the City sent a letter to Henry C. Cohen indicating that the use was not in compliance with at least two of the conditions regarding parking and the requirement to acquire an “alternative long term parking site.”
In 2013 and 2014, the City of Alameda received a number of complaints from adjacent property owners regarding violation of the conditions of approval by Big O Tires. In 2013, City staff notified Big O Tires that it was not in compliance with the 1989 conditions of approval because the company had not acquired or leased an alternative long term parking site and was using public city streets instead.
In 2015, the Planning Board held two public hearings, one in July and one in November, to consider the violations of conditions of approval by the current operator of the site for automobile repair. At the hearings, the Big O Tires franchisees acknowledged the violations and agreed to stop using city streets for storing vehicles left in the care of Big O Tires. In addition, Big O Tires described its efforts to acquire another, larger property located in a zoning district that permits tire repair services to avoid the continued problems at the current site.
Shortly after the November 2015 hearing, the current operators notified City staff that they had acquired a new site and were planning to move the entire operation to the new location, and that they had changed their name to “Big Discount Tires Pros” as a result of a disagreement about their proposed move from the Big O Tires corporation. The relocation to the new site will take place when the existing lease for the Park Street property expires in July 2017.
The Park Street property is owned by the Garfinkle family who would like to sell the property to the Big O Tire Company, which would like to establish a new Big O Tire franchise at 1200 Park Street, once Big Discount Tires Pro’s lease expires this summer.
In March 2016, staff was contacted by Big O Tires, who indicated that its company wished to acquire the property with the existing use permit, since the current business “Big Discount Tires Pros" was planning to relocate. In a March 7, 2016 email to Big O (see Exhibit 1), staff advised Big O: that the use permit might be “modified or revoked at any time”, that the Planning Board recently modified the use permit on the assumption that the current operators were working to move the use to “a more appropriate location”, and that staff “would not recommend this site to someone looking for a long-term location for a successful tire sales and repair business.”
On August 4, 2016, the City received a petition from local residents requesting that the use permit be terminated once Big Tire Pros vacates the site. The petition requests a public hearing to review the existing use permit for 1200 Park Street with the intention of considering an expiration date on the permit when the current tenant vacates the property within the next year. The petition list three reasons for considering termination of the current use permit, including the size of the lot, the nature of the business, and the incompatibility of the use with the surrounding neighborhood.
On November 28, 2016, the Planning Board held a public hearing to consider staff's recommendation to terminate the Use Permit on July 31, 2017. The Planning Board also considered the arguments of Big O's legal representatives that the Board should not take action to terminate the use permit without more current documentation of use permit conditions violations. In response, the Planning Board directed staff to confirm whether violations of the use permit were on-going.
On December 27, 2016, December 28, 2016, and February 14, 2017, staff witnessed and documented additional violations of the use permit conditions including employees using public parking on Park Avenue for storing customer vehicles.
ANALYSIS
As noted above, Big O Tire Company would like to purchase the property with the existing use permit in place from the Garfinkle family. The company would like to establish a new tire repair service on the property after Big Tire Pros relocates to its new location on Oak Street.
Big O believes that it will be able to ensure that a future franchise would successfully comply with all of the existing conditions. To that end, Big O is requesting that the Planning Board amend the use permit to allow continued use of the site for tire repair services as described in its letter to the Planning Board (Exhibit 2). In addition, the Garfinkle family has provided a letter in support of the future tire repair services on the property. (Exhibit 3)
On the issue of future violations, Big O proposes the following language be added to the Use Permit:
a. In the event that the property owner and/or its tenant (collectively, the "responsible party") fails to satisfy any of these conditions, the City shall provide written notice of the alleged noncompliance to the owner and tenant prior to initiating any enforcement action described herein. This notice shall describe the noncompliance with specificity, including the date(s) of noncompliance, a reference to the condition of approval or City Code section that is the basis of the noncompliance, a description of the conditions that gave rise to the allegation, and notice of the City's intent to assess a civil fine if action to correct the noncompliance is not commenced within 45 days after receipt of said notice. The noncompliance must be remedied within a period of not less than 60 days after receipt of said notice, unless the City agrees to extend the period to correct the noncompliance.
b. Commencing on the day following the expiration of the period to remedy the violation as set forth in section 12.a. above, the City may impose a civil fine of up to two hundred and fifty dollars ($250) per day for each day that the responsible party fails to correct the violations identified in the City's written notice. In determining the amount of the fine, the City shall take into consideration any timely and good faith efforts by the responsible party to remedy the violation. Fines and penalties collected pursuant to this section shall be directed to local nuisance abatement programs. The responsible party may appeal the fine imposed on his/her property pursuant to this condition. A request for an appeal hearing must be filed in writing with the Planning Department within fifteen days after the City provides notice of its imposition of a civil fine, and the request must state the grounds for the appeal. Failure to timely submit an appeal or to pay the appeals processing fee constitutes a waiver of the right to appeal and a failure to exhaust administrative remedies.
c. The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law. Notwithstanding the foregoing, the City shall not initiate use permit revocation proceedings until the written notice and time periods identified above have occurred and elapsed.
Staff is not convinced that the mere existence of this language will eliminate future violations of the use permit conditions by a future Big O franchisee. Furthermore, the proposed language is inconsistent with existing AMC enforcement provisions which set citation issuance procedures and appeal requirements, weakens the City’s regulatory powers, and creates an unworkable enforcement mechanism that is to the favor of Big O.
Under the proposed Big O language, Big O would have 45 days to move a vehicle parked on a neighborhood street before the City could cite Big O for violating the use permit conditions. As such, the City would never be able to revoke the use permit if the car is moved within 45 days. The language also establishes the need for appeal hearings of the fine amount and prohibits the City from terminating the use permit in the future, until and unless, the provisions of the language above have “occurred and elapsed”.
Although this language is not acceptable and it could be removed or modified, staff is more concerned that the Planning Board not adopt any new conditions that imply or set an expectation for the Alameda community that City staff is available to monitor this use on a daily or on-going basis. If the Planning Board wishes to retain the tire repair services use permit on the site, the Planning Board should consider removing those conditions of approval that have been violated repeatedly since 1979.
Based upon the 28-year history of the use permit violations on the property by Big O Tires and Big Tire Pros, staff does not believe adding new or modified provisions, or deleting conditions, to the old use permit will resolve the problems associated with this use on this site.
Staff believes that operation of a tire replacement and repair service will continue to generate the on- and off-site parking, noise, and other impacts associated with the shuffling of automobiles on and off the site to accommodate the needs of the business customers. The very nature of the commercial business creates a financial incentive to maximize the number of vehicles serviced in a day, which in turn increases the need to shuffle cars between the site and the neighborhood, which in turn increases the impacts of the business on the neighborhood and Park Street.
Termination of the use permit for tire repair services preserves all of the property owner’s rights to lease or sell the property for uses consistent with the Park Street CC Zoning District, which are the same rights and limitations that are enjoyed by other property owners of property facing Park Street. With a few exceptions, no other property owner of property facing Park Street has the right to service cars on Park Street. The exceptions are the few remaining legal non-conforming auto repair businesses north of Lincoln Avenue.
Termination of the use permit does not prohibit Big O Tires from establishing a new Big O Tires franchise in Alameda. The CC Zoning District and the North Park Street Zoning District conditionally permit automobile repair in a number of locations in the vicinity of Park Street and Webster Street.
Termination of the use permit will bring the use of the site into compliance with the CC district zoning and General Plan policies for Park Street.
For these reasons, staff recommends that the Planning Board amend the use permit to include the following condition:
This use permit and the non-conforming use of the land for automobile repair shall terminate within 60 days of final action by the City of Alameda.
Adding this condition will provide for a timely transition of the current operations to its new location on Oak Street and provide notice to the property owner and all prospective buyers of the property that future uses of the property must be consistent with the AMC. As written, the 60-day timeline will begin upon the Planning Board’s decision to add the condition, or upon final decision by the City Council upon appeal.
In conclusion, there is no question that this use has not been able to satisfactorily comply with the conditions of approval for the use. Violations of the conditions of approval started in 1988, and have continued to date.
Therefore, the Planning Board must decide whether the problem is the use of this property for automobile repair or if the problem is that the use permit prohibits use of public streets for customer cars and on-site outdoor repair.
Staff is recommending that the Planning Board revoke the use permit in its entirety because the use is not consistent with the underlying zoning requirements for the site, and as documented in Exhibit 1, the use has consistently violated the conditions of approval for this use on this site.
Alternatively, if the Planning Board believes that tire repair is an appropriate use of the property, then the Planning Board should remove the conditions of approval related to parking in neighborhood areas and the repair of cars in the lot. Twenty-five years of experience prove that these activities cannot be avoided by this use, and if the Planning Board wishes to allow this use to continue, the Board should remove these prohibitions from the conditions of approval.
Environmental REVIEW
Modifying the Use Permit to terminate at a date certain is Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to the CEQA Guidelines Section 15301, Existing Facilities.
RECOMMENDATION
Hold a public hearing and approve the draft Resolution (Exhibit 4) modifying the use permit to terminate within 60 days of final action by the City of Alameda.
Respectfully Submitted by:
Andrew Thomas
Assistant Community Development Director
Exhibits:
1. Record of Use Permit Violations
2. Big O Tire Company proposal
3. Letter from Garfinkle Family with photographs
4. Draft Resolution