Title
Public Hearing to Consider Adoption of Resolution to Uphold the Planning Board Decision to Terminate the Use Permit for Automobile Repair at 1200 Park Street 60 Days After Final Action by the City Council. (Community Development 481005)
Body
To: Honorable Mayor and Members of the City Council
From: Jill Keimach, City Manager
Re: Public Hearing to Consider Adoption of Resolution to Uphold the Planning Board Decision to Terminate the Use Permit for Automobile Repair at 1200 Park Street 60 Days After Final Action by the City Council
BACKGROUND
Over documented objections from residents living near 1200 Park Street-including a concern about the impact the use would have on parking in the neighborhood--the Planning Board, in March 1979, conditionally approved a use permit for an automobile tire repair services business on the property located at 1200 Park Street. See Exhibit 1 (“Ex. 1”) at pps. 007-008. In an effort to address these concerns, the Planning Board at that time limited the term of the use permit to five years and imposed conditions requiring all automobiles serviced at the site be confined to the property itself, that parking of cars on the site be limited, that all work on the cars occur within the building, and that no cars be parked overnight on the property. Planning Board Resolution No. 1010 [Ex. 1, pps. 012-013.]
In 1982 a franchisee of Big O Tires became the operator of the business and applied for a use permit to operate at the Park Street location. As part of the application process, planning staff sent out notices to area residents, who then submitted letters objecting to the City’s granting a use permit for the business citing, for example, the parking problems in the neighborhood that the business had created and may continue to create. Ex. 1, pps. 014-028. The City determined, however, that the use permit issued in 1979 was still valid. Planning staff sent a letter to the operator summarizing discussions between staff and the operator that confirmed that the property must be used primarily to sell and install tires, that the use permit for tire sales/installation would expire in 1984 (but could be renewed), and that parking of vehicles must be restricted to the site. Ex. 1, pps 029-031.
Notwithstanding that the use permit was to sunset in 1984, the use was allowed to continue beyond 1984. In 1988, another use permit application was submitted to the City.
As they had nine years earlier, residents who lived in the areas near the site objected to the City issuing another permit for this site. Ex. 1, pps. 032-039. They argued that the operators of the business had not complied with the 1979 conditions of approval, in particular the restrictions to parking serviced vehicles in the neighborhood because the number of cars being serviced greatly exceeded the number of cars that could be reasonably parked on site and the operator was parking cars to be serviced in the adjoining neighborhood, thereby making it difficult for residents to find on-street parking. The staff report to the Planning Board reflected the neighbors’ concerns by pointing out that the number of on-site parking spaces for customers’ cars were inadequate, causing those vehicles to be routinely parked on City streets, thereby reducing the on-street parking opportunities for the adjoining residents. Ex. 1, pps. 040-042. At the Planning Board’s hearing, staff noted that the use had a impact on parking in the area and that a petition from residents objecting to the use permit had been submitted. Ex. 1, pps. 045-047.
The Planning Board conditionally approved a new use permit (Use Permit 88-36). To address the neighbors’ complaints about the overflow parking impacting street parking, the Board imposed a condition requiring the operators to “find an alternative long term parking site for customer cars, as well as for employees” within 60 days. Ex. 1, pps. 058-059.
In May, 1990 Planning staff sent a letter to the operator advising him that the use was not in compliance with the conditions of approval, in particular the continued parking of cars in the adjoining neighborhood and the failure to secure an alternative site to park cars to be serviced and to park employees’ cars. Ex. 1, pps. 060-061.
Between 1990 and 2013, the Planning Department’s files do not reflect whether residents in the area continued to experience parking related issues associated with the business.
In January 2013, however, Planning staff received a letter from an attorney representing a resident in the area, pointing out that the conditions of approval of the conditional use permit were being violated, including the business parking cars on City streets for long periods of time, thereby making it difficult for residents to find on-street parking close to their residences and/or parking cars on metered City streets, thereby taking up parking spaces intended for shoppers along Park Street. Ex. 1, pps. 062-065. The City continued to receive similar complaints about the operation of the business. Ex. 1 pps. 072-073; 076-091; 096-098.
The operators submitted an application on February 18, 2014 to amend the 1988 conditional use permit, including deleting the requirement that the operator find an alternative site on which to park its customers’ vehicles, and allowing minor automobile repair work to be done outside of the structure. Ex. 1, pps. 099-102.
When the Planning Board heard the amendment to the use permit in July 2015 planning staff did not recommend eliminating that requirement, noting that the business’ use of public parking spaces impacted the neighborhood and the operator should confine its operation to its own property because to do otherwise impacts the adjoining neighborhood and other businesses along Park Street. Ex. 1, pps. 131-136. Numerous letters and petitions signed by approximately 150 persons requested the Board deny the amendment to the use permit on grounds that customers’ vehicles are parked throughout the neighborhood and on Park Street, making it very difficult for residents to find parking near their homes and impacting other businesses on Park Street. Ex. 1. pps. 105-130. In addition, at the Planning Board’s hearing, about 23 speakers addressed the Planning Board, about half of whom were in opposition to allowing the use to continue in that location on grounds that the business negatively impacted parking in the surrounding neighborhood and along Park Street. Speakers in support of the use permit cited the operator’s use of the valet service, the success of this Big O, and that the use of on-street parking by other businesses is not unique to this neighborhood. Ex. 1, pps. 141-146.
The Planning Board voted to continue the item in order to give the operator additional time in which to find an alternative site for the overflow parking. Following that meeting, the operator advised Planning staff that it had identified a site that would be large enough for the entire operation to locate there within two years. Planning staff re-noticed the public hearing on the amendment of the use permit for November 9, 2015. Ex. 1, pps.148-150.
In recognition that the operator had represented that a different location had been found on which to move the entire business operation, the Board on November 9, 2015, amended the conditions of the Use Permit to require the operator continue its efforts to secure a long-term parking site for its customers’ and employees’ cars. Ex. 1, pps. 156-157; 160-161.
Nevertheless, in August 2016, planning staff received a petition from about 20 residents in the area of the business requesting a public hearing to review the use permit because of their long-standing position that the property was too small for this type of business and the overflow parking needs of the business continued to impact the neighborhood. Ex. 1 pps. 162-163.
The Planning Board conducted a public hearing on November 28, 2016, to consider the Planning staff’s recommendation that the use permit be terminated. Ex. 1, pps. 184-189. Representatives from Big O Tires, who had an interest in continuing to conduct the business after the current operators left the site, and the property owner, requested the Board not terminate the use permit without additional and current information that the conditions of approval were not being observed. Ex. 1, pps. 191-195; 177-181. The Planning Board agreed to that request and directed the Planning staff to continue to monitor the activities of the business concerning compliance with the conditions of approval and then schedule another public hearing in the spring of 2017. Ex. 1, pps. 194-195.
Thereafter, Planning staff documented instances where the conditions of approval were not being observed, including employees of the operator parking customers vehicles on City streets. Ex. 1, pps. 203-207; 210.
The Planning Board conducted another public hearing on May 8, 2017, to consider whether to terminate the use permit or to modify the conditions of approval in order to allow the use to continue. Ex. 1, pps. 255-261. After receiving documentary and considerable testimony from residents who chronicled the lengthy history of the operators not complying with the conditions of approval, receiving testimony and documentary evidence from the property owners and representatives of Big O Tires who urged the Board not to terminate the use permit, and discussing the matter at length. Ex. 1 pps. 230-254 and pps. 269-275 The Planning Board, as a practical matter, voted to terminate the use permit by modifying the use permit to include a condition that the use permit and non-conforming use of the property for auto repair shall terminate within 60 days of final action by the City of Alameda. Ex. 1, pps. 263-265.
The property owner filed a timely appeal of the Planning Board’s action. Exhibit 2. The grounds for appeal include (1) the taking of property rights, (2) lack of evidence of street parking problems caused by the use, (3) failure to provide notice (of the violations) to the property owners and (4) failure to document violations of the conditions.
DISCUSSION
The Alameda Municipal Code does not allow this type of use on Park Street and has not allowed this type of use for many years. This property is zoned Community Commercial (C-C) and the Zoning Ordinance provides the property owners with a wide range of uses that are consistent with the property’s zoning, any one of which will provide the owners with a viable, economic use of the property. Planning staff has advised the property owners of their options both verbally and in writing. (Ex. 1. P 164.)Termination of this particular use permit has no bearing on the property owners’ rights to use the property consistent with the Alameda Municipal Code, the same as any other Park Street property owner. Accordingly, there is no merit that terminating this use permit rises to the level of a taking of property rights or is otherwise fundamentally unfair.
Second, the records that go back nearly 40 years provide compelling evidence the operators of this business have failed to comply with the conditions of approval and it is not realistic to believe, given the nature of the business, that if the use is allowed to continue, a new operator will not park customers’ cars on City streets. For example, when this use was originally before the Planning Board in 1979, adjacent residents objected to the use, fearing-as it turns out correctly-that the use would negatively impact parking in the neighborhood. In an effort to address those concerns, the 1979 Use Permit for the property clearly stated that the business should not be parking customer vehicles in the neighborhood and that the cars should be contained on-site.
By 1989, the failure of the operators of the business to comply with the conditions of the use permit was well documented. At the Planning Board’s 1989 public hearing, the Board discussed the violations of the use permit and modified it to require that the operators acquire an off-site lot to park vehicles to be serviced. Within a year, Planning staff, in response to continued complaints from the adjacent residents, had to send communications to the operators about their continued lack of compliance with the use permit conditions. Years later, Planning staff received complaints from neighboring residents complaining about the City’s lack of enforcement of the conditions of approval and documenting continuing violations of the use permit conditions. Moreover, by 2013-fourteen years after the operators were to find an alternative site to park vehicles to be serviced--the operators had still not purchased or leased such a site and, in violation of the use permit, continued routinely to use City streets to park customers’ vehicles, to the detriment of the neighboring residents.
Third, the property owners’ claim that they have received insufficient notice about these matters is without merit. Over the course of the past two years, the property owners have been fully engaged in the Planning Board’s discussions and deliberations. In July 2015, and again in November 2015, the Planning Board held public hearings to discuss the violations. One of the property owners attended the July 2015 meeting and assured the Planning Board that the parking problems would be resolved. The property owners and their representatives were also at the November 2016 Planning Board public hearing, where they argued against staff’s recommendation to terminate the permit. Finally, the property owners and their representatives attended and spoke at great length at the May 8, 2017 public hearing, again urging the Planning Board not to terminate the use permit.
The property owners also take issue with the staff’s January and February 2017 violation letters which reference a violation of “Condition #3”, which condition provides the “business vehicle(s) shall be stored on the site, not on adjacent residential streets”. But as made clear in the letters, the violations occurred because employees of the business had parked customers’ cars on, and then retrieved the cars from, City streets in order to service the vehicles at the business. The inspection logs that accompanied the violation letters also reflect instances where employees are retrieving customers’ vehicles parked along Jackson Park in order to return them to the business to be serviced. Ex. 1 pps_203-207. That activity has been the main objection of the residents for 40 years. Accordingly, even if the January and February 2017 violation letters erred in the condition reference, the failure of the operators either to secure or to use an alternative site on which to store customers’ cars-which is also a condition of the use permit-had routinely occurred in the past and was observed by staff in January and February 2017.
In conclusion, there is substantial evidence in the record to support the Council’s decision to terminate this use permit. The use of the property as conditionally approved in 1979, and later in 1988, is not appropriate in that the operators failed over the course of 40 years to satisfy the conditions of approval, notwithstanding the commitments from the operators of the business and the property owners that the conditions would be met. In particular, the inability to secure an off-site location on which to park customers’ vehicles to be serviced has led to an adverse impact on those vehicles being parked on City streets, thereby exacerbating what is already a parking shortage. Accordingly, not only is the current use not consistent with the Zoning Ordinance but it also (a) is not proper in relation to adjacent uses, (b) is materially detrimental to the character of the immediate neighborhood and (c) the conditions of approval that were intended to protect the best interests of the surrounding neighborhood have not been observed.
Moreover, it is not realistic to think a different operator, especially a successful one, will not be faced with the same challenge. Planning staff cannot be expected to monitor the activities of this use on a daily or weekly basis to ensure compliance. It is within the Council’s authority to terminate this use permit and termination of the use permit does not affect the property owners’ rights to use the property consistent with the Alameda Municipal Code.
A notice for this hearing was mailed to property owners and residents within 300 feet of the project site, published in the Alameda Journal and posted at the subject property.
Staff supports the Planning Board’s decision to terminate the use permit and ensure that all future uses of the site be consistent with the requirements of the Alameda Municipal Code. Staff recommends that the City Council uphold the Planning Board’s decision to terminate the use permit.
FINANCIAL IMPACT
There is no financial impact on the General Fund by adopting a resolution to terminate the use permit; the property owner has paid the processing fees for the appeal.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
General Plan Land Use Element policies support pedestrian friendly retail on Park Street and support efforts to minimize commercial off-site impacts on adjacent residential uses.
The Alameda Municipal Code/Zoning Ordinance prohibits automobile repair business on Park Street facing properties in the Park Street CC Community Commercial District.
ENVIRONMENTAL REVIEW
Terminating the use permit is Categorically Exempt from additional environmental review pursuant to California Environmental Quality Act (CEQA) Guidelines, Section 15321-Enforcement Action by a Regulatory Agency.
RECOMMENDATION
Hold a public hearing to consider adoption of resolution to uphold the Planning Board decision to terminate the Use Permit for automobile repair at 1200 park street 60 days after final action by the City Council.
Respectfully submitted,
Debbie Potter, Community Development Director
By,
Andrew Thomas, Assistant Community Development Director
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. Administrative Record Concerning the Use Permits for 1200 Park Street
2. Petition for Appeal dated May 15, 2017