HomeMy WebLinkAbout- - ZA-89-25 & ZA-92-10 (4) - 10/19/2010ATTACHMENT 2
MILES CHEIV LAW GROUP
Costa Mesa Planning Commission Meeting
August 9, 2010
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COSTA MESA PLANNING COMMISSION MEETING 2
[START AUGUST 9, 2010 PC ITEM 3 MP31
MR. JAMES RIGHEIMER: Okay, next item, item
number three.
FEMALE VOICE: Application number ZA-89-25
and ZA-92-10. Site address, 739 W. 19th Street.
Applicant, Jesse Garcia. Zone, C1.
Environmental determination, Exempt.
Description, from the meeting of July 12, 2010,
review, modification, or revocation of Minor
Conditional Use Permit Za-92-10 for a recycling
center with a maximum of two containers in a
commercial shopping center.
MR. RIGHEIMER: Staff? Mr. Lee.
MR. LEE: Yes, Mr. Chairman and
commissioners, the subject property is located
on the south side of W. 19th Street between
Wallace Avenue and Pamona Avenue. It contains a
multiple tenant retail shopping center. Major
tenants include Alturo Bravo Market [phonetic],
Lion's Den Night Club, and several food and
retail stores. The property is also bounded by
Wallace Avenue to the west, a Smart and Final
store to the east, residential properties to the
south, which would be to the rear of the
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1 COSTA MESA PLANNING COMMISSION MEETING 3
2 property, and to the north of property directly
3 across W. 19th Street, several commercial
4 properties including a pawn shop and a liquor
5 store. The property is zoned C1 and has a
6. gener.al.plan designation of general commercial..
7 The.property is-also-located within the cit.y.'.s
8. 1.9.West Urban Plan. The specific application
9 that's before you today .is actually two separate
10 minor conditional use permits that were
11 processed. fox.-this property.. The first one, was
12- zoning appl;cat;ion,ZA-89-.25, the 89 -signifying
13 the year in which.the application was first
14 approved. This was the first minor conditional
15 use permit that was processed and approved for
16 Garcia's Recycling. At that time, the approval
17 was for.the recycling container to actually be
18 directly adjacent to the W. 19th Street frontage..
19 In 1992, an amendment to. the application, ZA-92
20 10, was processed relocating that recycling
21 facility to its present location that you see in
22 the lower right hand portion of your screen.
23 The city's municipal code does allow the
24 commission to modify and/or revoke a planning or
25 zoning application if the following conditions
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COSTA MESA PLANNING COMMISSION MEETING 4
are found to apply: the use constitutes a public
nuisance, or the use does not comply with the
conditions of approval. These two zoning
applications were brought forward to the
commission at the request of Planning
Commissioner Mensinger on June 9, 2010. This
item was originally scheduled for your July 12
meeting. However, at the July 12 meeting the
applicant's legal counsel requested that the
item be continued to this meeting in order to
allow the applicant additional time to contact
the neighbors, work with the neighbors, and at
the commission's direction also develop some
best management practices for the use of the
facility. The reason that these issues came
into play was that in the years that Garcia's
Recycling has been operating at this facility,
and especially with the recent operation
beginning in July of 2009 to this date, several
concerns have been brought to light regarding
the operation of this use at its current
location. One issue is that the use is not
being operated in a manner to be deemed to be
compatible with surrounding properties and uses.
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2 Specifically, concerns have been raised
3 resulting from noise related to the pouring of
4 recycled .materials, cans and bottles, into the
5 containers at the facility., odors related to the.
6 used beverage containers'that are collected at
7 this facility, and.loitering and customers
8. parkingon adjacent.properties to.use the
9 recycling facility:. An issue was also raised
to regarding..negative visual impact due,to the
11 excessive signage that was:on the containers
12 that you can7see:in these photographs as well as
13 a lack of property maintenance that you can also
14 see in these photographs. The containers at
15 this location generally have a battered
16 appearance, and the landscape planners
17 surrounding the use have not been adequately
18 maintained as a result of the high use of the
19 facility by its customers. Also, because of the
20 high demand by customers for this facility, it
21 necessitated the staging of a truck in addition
22 to the existing recycling container that's on
23 the property. As I indicated, since July 2009,
24 staff has been working with the applicant to
25 resolve a lot of these issues. And attached in
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2 your original July 12, 2010 staff report is a
3 summary of the efforts staff has undertaken as
4 well as the applicant/operator has undertaken to
5 try to resolve the issues at this facility.
6 However, it is staff's opinion that many of the
7 issues still remain unresolved. According to
8 city records, the city has had no complaints
9 related to noise, odor, loitering, property
10 maintenance with regards to the other recycling
11 facilities that are located within the city of
12 Costa Mesa. These are some additional
13 photographs of the Garcia's Recycling location,
14 and these are photographs that show the other
15 locations in the city, the recycling center at
16 Orange Coast College in the upper left hand
17 corner of your screen. Recycling facility for
18 Earth Wise at the Stater [phonetic] Brothers
19 Market at Newport and 22nd in the middle upper
20 portion of the screen, and of course another
21 photograph of Garcia's Recycling on the right
22 hand portion of your screen, and the existing
23 recycling facility at Bonds [phonetic] Market
24 Shopping Center on E. 17th Street, which is at
25 the bottom portion of your screen. In your
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COSTA MESA PLANNING COMMISSION MEETING 7
original'July 12 planning:commission staff
report, staff presented three alternatives. One
alternative is to revoke the original zoning
application, ZA-89-25, and modify the conditions
of approval for ZA-92=10... We had recommended
several. additional.conditions of approval, which
is also incorporated in one of the alternative
resolutions in your packet this evening, in
order to minimize -and reduce the impact of the
op.erati.onal facility to surrounding properties...
.The secondalternativeis to revoke b.oth.minor,
conditional use permits, ZA-89-25 and ZA-92-10.
The reason that staff in both instances is
recommending revocation of the original 1989
minor conditional use permit is, as I indicated,
that was for the old location of the recycling
facility right on the 19th Street frontage, which
of course no longer applies, because that
condition use permit was superseded by the one
in 1992. The second alternative would be.to
actually revoke both conditional use permits
based upon the finding that the property
.constituted a public nuisance. Included in your
packets this evening is actually an addendum
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2 memorandum that was printed on yellow paper that
3 actually incorporated some additional findings
4 that were reflected in the original July 12
5 planning commission staff --
6 MALE VOICE: Where was that again?
7 MR. LEE: It's your supplemental memorandum
8 on the yellow sheet. It's a revised resolution,
9 if the commission chooses to revoke both minor
10 conditional use permits with some additional
11 findings that were incorporated reflecting the
12 items that were discussed in the staff report.
13 And the third alternative is to basically
14 receive and file the report, which basically
15 would mean the commission would take no action
16 to either modify or revoke the minor conditional
17 use permits and would basically allow the
18 facility to continue to operate as is. For your
19 packets this evening, we did prepare an updated
20 memorandum that reflects some of the issues that
21 the legal counsel for Garcia's Recycling raised
22 in their letter dated July 12, 2010.
23 Specifically, there are two items that the
24 attorney raised in the letter that I do want to
25 address this evening. The first is that the
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1 COSTA MESA PLANNING COMMISSION MEETING 9
2 applicant's legal.counsel made a statement in'
3 the letter that basically if the commission were
4 to take the action to revoke both of the
5 Garcia's Recycling minor conditional use
6 permits, the alternative .two, that basically two.
7' convenient zones.would be in violation of the.
8 .statelaw with regards to recycling. It's known ..
9 as the Bottle Bill. Staff did contact a
10 representative of Cal Recycle, which is the
11 Cal'if.ornia agency that does oversee recycling
12 centers in the area. They didprovideus this
13 exhibit which shows the convenient zones in the
14 immediate area of Garcia's Recycling. By
15 further definition, a convenient zone is how Cal.
16 Recycle sets up the criteria for determining
17 whether a recycling facility needs to go into a
18 certain area based upon a number of supermarkets
19 that are in that area. As you can see in this
20 exhibit, in addition to Garcia's Recycling,
21 which is this actual symbol here, is the
22 recycling center at the Bonds Market, which is
23 this symbol here. As you can see, the
24 convenient zones actually overlap in this area,
25 and according to Cal Recycle, if the commission
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1 COSTA MESA PLANNING COMMISSION MEETING 10
2 were to take the action to revoke both minor
3 conditional use permits, it would not results in
4 what's called an un -served convenient zone by
5 state definition, because the area would
6 continue to be served by the existing recycling
7 facility at Bonds Market. Furthermore, if you
8 go to the frequently asked question page on the
9 Cal Recycle website, they also state on their
10 website that multiple overlapping convenient
11 zones can be served by a single recycler. The
12 second issue the applicant's legal counsel
13 raised in their letter was that in fact if the
14 commission were to take the action to revoke
15 both minor conditional use permits, it would
16 potentially compromise the city's integrative
17 waste management plan. The staff did contact
18 the Cost Mesa Sanitary District, which of course
19 is involved in overseeing the integrated waste
20 management plan and did confirm that in addition
21 to independent recyclers like the Garcia's
22 Recycling, the Orange Coast College, and other
23 recycling facilities, the city of Costa Mesa
24 Sanitary District does in fact, as part of the
25 waste division program, does recycle items out
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2 of.the regular waste stream and diverts those
3 materials to a recycling facility. The actual
4 documentation is attached to your staff report
5 that's included.in today's packet. And we also
6did receive a separate written confirmation from
7 :the Costa Mesa. Sanitary District also stating
8 that they do.p:rovide.thei-r own..recycling in
9 compliance with the state regulations for waste
10 divers i.on..
11 MR. RIGHEIMER: Mr.:_ Lee, that's .the August
12 9th letter, .2010, from. the Cos-ta Mesa .Sanitary
13 District?
14 MR. LEE: Yes,' that is correct.
15 MR. RIGHEIMER: Okay. I want to just put
16 that.in the record and make sure that the.
17 applicant has a copy of that.
18 MR. LEE: Yes, that is correct.
19 MR. RIGHEIMER: Okay, thank you.
20 MR. LEE: So that basically brings you up to
21 date on the status of the continued hearing or
22 the review of zoning application ZA-89-25 and
23 ZA-92-10. This concludes my presentation. I
24 can respond to any questions any of the
25 commissioners may have.
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1 COSTA MESA PLANNING COMMISSION MEETING 12
2 MR. RIGHEIMER: Commissioners questions for
3 staff.
4 MR. COLIN MCCARTHY: Mr. Chair.
5 MR. RIGHEIMER: Commissioner McCarthy.
6 MR. MCCARTHY: I'm looking at the new
7 proposed findings, and it mentions the city's
8 2000 general plan and the fact that 19th Street
9 is in the urban path, quote, unquote. What is
10 that referring to?
it MR. LEE: W. 19th Street is designated as
12 what is known as an Urban Path. In other words,
13 it's a major arterial, where it's targeted for
14 overall improvement and enhancement. Of course,
15 the city undertook a beautification project
16 several years ago with the repaving and the new
17 light standards and basically new development
18 also has to comply with development standards in
19 terms of landscaping, building architecture,
20 things of that nature. So that's basically what
21 that's making reference to.
22 MR. MCCARTHY: Okay, and then my other
23 question, and I don't know if this is for you or
24 for counsel, Municipal Code Section 1329, which
25 provides a basis for the modification and
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2 revocation of the CUP provides an or. There's
3 the public nuisance or the failure to meet the
4 conditions, correct?
5 MR. LEE: Yes, that's correct.
6 MR': MCCARTHY: It's not a requirement of
7.. -both. .You don -It need to find their not. .meeting
8•..their.-conditions of approval and it's a public..
9 nuisance.
10 MR. LEE: That i s correct .
11. MR_...MCCARTHY: So .it could.be found by .this
12 body to be a.-nu.isance_- and modifi-ed or revoked
13 or it could be found to be not operating within
14 the conditions of approval and modified or
15 revoked, correct?
16 MR. LEE: Yes, that is correct.
17 MR. MCCARTHY: Okay. Thank you, Mr.
18 Chairman.
19 MR. RIGHEIMER: Commissioners.
20 MR. SAM CLARK: Mr. Chair.
21 MR. RIGHEIMER: Vice Chair Clark.
22 MR. CLARK: Mr. Chair, I'd like to ask
23 counsel a couple of questions with regards to
24 the letter and/or packet that we received from
25 Ms. Chen dated August 6. Mr. Adams, on page
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1 COSTA MESA PLANNING COMMISSION MEETING 14
2 two, item number two, she references revocation
3 of the Garcia Recycling Conditional Use Permit
4 is unjustified and would amount to an abuse of
5 planning commission discretion and then sites
6 Goat Hill Tavern versus City of Costa Mesa.
7 Could you comment on that for me?
8 MR. ADAMS: Yes. Goat Hill Tavern is a much
9 more complicated case that what is indicated in
10 the findings here. The finding of whether it is
11 a public nuisance is not a legal conclusion.
12 That is a factual conclusion that this
13 commission has within their purview to make.
14 Goat Hill Tavern is a completely different type
15 of case. It was based on different issues, and
16 there's nothing there that I would say prevents
17 you from looking at this matter and making the
18 determinations that you need to make.
19 MR. CLARK: Okay. And then, item number
20 three she mentions revocation of the permit is
21 subject to CEQUA, California Environmental
22 Quality Act. Could you comment on the accuracy
23 of that as well?
24 MR. ADAMS: Well, there is a CEQUA review,
25 and the staff has addressed that in the report.
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2 There's an exemption applied.
3 MR. CLARK: Thank you very much.
4 .MR. RIGHEIMER: Commissioners, are there
5 questions for staff? I have a question, Mr.
6 Lee.-. I --1m sorry. .
.7. _MR.: STEPHEN MENSINGER: Mr. Chair.
8 MR..RIGHEIMER Commissioner Mensinger,
9 please.
:10 MR. M.ENSINGER: Mel, this is a question for
'11 you. .When=Garcia's"originally received their:
12 CUP forrecycling wasn't :there a facility
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13 located in the back of the shopping center,
14 toward the houses?
15 MR. LEE: Yes. Actually, the 1989 minor
16 conditional use permit was for the location
17 along .the W.. 19th Street frontage. What had
1.8 happened was they had actually moved the
19 containers to the rear of the property, which of
20 course resulted in complaints from the neighbors
21 that are immediately butting into it to the
22 south. So as a result of that, that is what led
23 to the 1992 revision that basically put it out
24 back towards the front of the street but at the
25 location that it's located at today.
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2 MR. MENSINGER: Second question, in 2000,
3 this item was pulled up it looks for review, the
4 CUP was pulled up for review by the planning
5 commission. Do you have any information on
6 that?
7 MR. LEE: I did see in the packet a request
8 to bring it up for review. Actually, I'm not
9 certain if that review ever went forward.
10 Perhaps at that time the applicant had modified
11 their operation to address whatever issues were
12 in effect at that time. But I was not able to
13 actually find a record where that request to
14 bring it before the commission was actually
15 brought forward to the commission.
16 MR. MENSINGER: And the third question, as
17 it relates to Garcia's, it's my understanding
18 that the counsel for Garcia's came forward about
19 a year ago asking for an expansion of their
20 facility. Can you enlighten us as to what the
21 request was a year ago?
22 FEMALE VOICE: Chair and commissioners, the
23 request was just to address the violations that
24 staff had said they were in on the property. It
25 was not to expand it.
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I COSTA MESA PLANNING COMMISSION MEETING 17
2 MR. MENS.INGER: Okay.. Is the volume of
3 recyclables today the same as it was when they
4 originally received their CUP. Is it the same
5 operation?
6 MR. LEE:: It .is the same operation in terms
7: of the numberof containers,.yes..
8 MR. MENSINGER: Okay... Very good. Thank
9 you.
10 MR. RIGHEIMER: Okay, the question I have,
11 and I. think.you-just touched on it. The May 22
12_ lett er-of 2000 that went -.to Garcia-looked-like-
13
arcia looked-1ike13 it was generate from staff, signed by Wullah
14 [phone.tic]. Here, and it basically was ,telling
15 them to, discussing their MCUPs. However, the
16 findings used to justify the MCUPs can no longer.
17 be made and the conditions approved are not
18 consistently complied with. Therefore, the
19 recycling needs to be discontinued. What.you're
20 saying is we have no record of what happened
21 after that.
22 MR. LEE: That's correct.
23 MR. RIGHEIMER: Okay, and then on page 22
24 we've got a spreadsheet here that shoes the
25 amount of recycling done for aluminum cans,
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1 COSTA MESA PLANNING COMMISSION MEETING 18
2 plastic, HDPE number two, and glass. Where did
3 that document come from?
4 MR. LEE: This document was supplied by the
5 applicant's legal counsel, so they can probably
6 provide information as where this information
7 came from.
8 MR. RIGHEIMER: Okay. It came from the
9 applicant's counsel.
10 MR. LEE: That's correct.
11 MR. RIGHEIMER: Okay. Okay, any other
12 questions for staff?
13 MR. MENSINGER: Mr. Chair.
14 MR. RIGHEIMER: Commissioner Mensinger.
15 MR. MENSINGER: Mel, just so I understand
16 the landscape here, Mr. Banella [phonetic] is
17 the owner of that shopping center. Is that
18 correct?
19 MR. LEE: Yes, that's correct.
20 MR. MENSINGER: Okay, and is it customary
21 for a recycling center like Garcia's to have a
22 rental agreement with Mr. Banella to lease that
23 space?
24 MR. LEE: Yes, a lease agreement, yes.
25 MR. MENSINGER: Is that public record, do
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1 COSTA MESA PLANNING COMMISSION MEETING 19
2 you know?
3 MR. LEE: We do not have a.copy of that
4 least agreement, no, so it would not be part of
5 the public record.
6 MR. MENSINGER: Okay, thank you.
7 :. MR. RIGHEIMER: Any other questions for
8. staff? Okay., I'm going to report any ex parte.
9 communications.. Anybody met with or talked with
10 the _applicant or any other neighbors in.the area
11 at all since'.the last. .meeting? None? Okay.
12 MALE VOICE: Mr. Chair; I-did speak with,,-.a
13 couple of neighbors in the area.
14 MR. RIGHEIMER: Okay. Anybody else speak
15 with some neighbors in the area. You don't have
16 to say you spoke. We have to say we spoke.
17 It's okay. You're allowed to speak to us.
18 MALE VOICE: Mr'. Chair, I believe I received
19 a couple of email.s .
20 MR. RIGHEIMER: Emails. I think I also
21 received, and those would be in the record.
22 MALE VOICE: As did I, Mr. Chair.
23 MR. RIGHEIMER: Okay, thank you. Okay, I'm
24 going to go ahead and open the public hearing.
25 Do we have the representative of Garcia's here?
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Yes, please. You can come around. It's a
little easier. You get a side profile on TV.
You're looking good.
MR. STEPHEN MILES: Good evening, Mr.
Chairman, members of the commission. Stephen
Miles on behalf of Miles Chen Law Group.. We
represent Garcia Recycling. Just by way of
protocol, I'm not aware of how much time
allotment I have, but I'd like to start with
some introductory comments and concepts and hand
it over to my partner, Patricia Chen, to kind of
get into the nuts and bolts.
MR. RIGHEIMER: Yes, we're not going to
limit the time that you have in there. Just
understand, you know, if it goes really long,
you know.
MR. MILES: Great. Thank you.
MR. RIGHEIMER: Go ahead.
MR. MILES: I'm going to talk about three
main topics. I'm going to get into the
procedure of the proceeding that is before us
today. I'm going to talk about the underlying
land use law that applies with respect to the
review of a conditional use permit. I'm also
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I COSTA MESA PLANNING COMMISSION MEETING 21
2 going to -touch on the evidence that has been
3 presented in this case and some of the
4 evidentiarystandards that apply to the
5 conditional use permit. My partner, Patricia
.6 Chen, .is going to.go int o more detail on that..
7. And then, I'm going to finish with the
8 California Env.i_ronmental:Quali.ty Act, taking.
9 into consideration the comments from your deputy
10 city attorney. I'll address that issue in this
11 context.of a conditional use -permit that
12 implicates the unknown of four million pounds of
13 solid waste. So to begin, just so we
14 understand, the Goat Hill Tavern case was
15 referenced. And basically, besides saying that
16 it's a complicated case, the reality is that
17 it's a seminal decision. It's somewhat ironic
18 that it was this fine city that brought us that
19 decision. But it is the seminal decision on
20 conditional use permits, and it's important, I'm
21 also a municipal attorney, and I find that
22 sometimes public officials, elected and non -
23 elected public officials, often confuse the
24 distinction between issuing a use permit and
25 what occurs once it is issued. And that's
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I COSTA MESA PLANNING COMMISSION MEETING 22
2 really one of the legal concepts, the tenants
3 that Goat Hill Tavern addressed, which says that
4 once that conditional use permit is issued, you
5 know, up to that point this commission has full
6 discretion. It can condition it. It can weight
7 evidence. It can decide everything it wants to.
8 Once that use permit is issued, it then becomes
9 a fundamental vested property right of the
10 permit holder. And so the rules change. The
it rules change with respect to the review of it,
12 the revocation, the modification of it. And the
13 rules change with respect to the way a court
14 will review the action of this commission with
15 respect to that permit. This proceeding is a
16 quasi -adjudicative proceeding. It relates to
17 that permit that's held by an individual. It's
18 not legislative. You don't get that same
19 deference that you would otherwise be accustomed
20 to in the issuance of a permit. I just wanted
21 to point that out, because that's kind of an
22 underlying tenant of what we're discussing. In
23 the staff report there are I believe two or
24 three recommended actions, and they relate to
25 these two minor conditional use permits, ZA-89-
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I COSTA MESA PLANNING COMMISSION MEETING 23
2 25 and ZA-92-10. There was an explanation about
3 why you can revoke one, and I don't quite
4 understand the rationale. But what I will say
5. is that those two use permits are not wholly
6 integrated in any way, shape, or form. There's
7 no. supersede language. in the 192 permit, so from.
8 a legal position;..Garcia,Recycl.ing will point
9, out that.both of those permits run.with the
10 -land;.both of those permits are fundamental
11: vested:.prope'rty.rights; .anal neither one of them::
12. should .be revoked or modified without ample
13 evidence.and justification by this commission.
14 Getting into the.evidence that's been submitted.
15 We've been struggling with this. We were asked
16 to represent Garcia Recycling. We participated
17 in a public outreach. Every known complainant
18 was issued a letter, and surprisingly, and Pat,
19 my partner, will get into this in more detail,
20 we haven't received a single verification.of a
21 complaint. We saw actually on a Public Records
22 Act request we saw that there was an email that
23 was referencing a complaint by Smart and Final.
24 There was a reference to an exhibit or an
25 attachment to the email. That attachment wasn't
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2 included in our Public Records Act materials, so
3 we've struggled with trying to figure out what
4 exactly is the essence of the complaint that has
5 driven this review proceeding. Fundamentally, I
6 would say that there is no evidence, let alone
7 substantial evidence, of a violation of the use
8 permit. And there certainly is nothing that
9 arises to a public nuisance that would justify
10 revocation. Whether or not there's
11 justification to work cooperatively with Garcia
12 Recycling to do some things, that's always good.
13 That's being a good neighbor, which I think
14 Garcia Recycling has been for the 21 years that
15 it has been operating without complaint under
16 its use permit. So what I'd like to point out
17 is the concept of celerity. And the best way to
18 describe celerity is the anecdote about getting
19 your hand in the cookie jar. And you ask should
20 you slap that wrist within a minute of getting
21 that hand in the cookie jar, a week later, a
22 year later, a decade later. What's the efficacy
23 of that? You want to slap the wrist
24 immediately. Usually you have a violation and
25 then you have a response. Seldom do you see,
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2 and you certainly didn't see this in.the Goat
3 Hill Tavern decision, that 20 years have gone by
4. and then all of a sudden we've got an issue with
5 the use permit. We think we have a public.
6 nuisance -or we have.violations of the conditions
7 of this permit. I would implore upon this
8 1 commission to go..back to the Goat Hill Tavern.
9 ..decis..ion. I know it's complex, but really one
10 of the distinctions, and.chairman, you made
11 great distinctions about.. -the In and Out Burger,
12 about how that In and Out Burger won't result in°
13 a traffic, a queuing or a parking problem based
14 on the circumstances. The Goat Hill Tavern
15 decision interestingly had to do with a bar. It
16 had to do with a liquor license, a liquor
17establishment. It didn't have to do with
18 something that's mandated by state law. See,
19 Garcia Recycling is a use permit that is also
20 fulfilling a state mandate. So that's a
21 distinction that you should look at between this
22 circumstance and the facts and the evidence in
23 Goat Hill Tavern, because if you read that
24 decision carefully, you'll see that the City of
25 Costa Mesa did a good job of documenting
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evidence. It just happened that the Harp, there
was a spurious relationship there that they
couldn't quite provide causation. And that's
what really happened in that decision. But the
evidence before you today, there's nothing that
even remotely goes to the amount of evidence
that was presented in the Goat Hill Tavern
decision by the City of Costa Mesa. And the
staff report will illustrate the fact that not
until July of 2009 was there even a culmination
of trying to figure out is there any evidence
about any complaint whatsoever. So again, that
goes to we've got a 1989 permit. In 2009 we
have a review, and if you look really at the
points that were made as of July 2009, there's
really nothing that directly says that there's a
violation or anything that amounts to a public
nuisance or a concern with the public health,
safety, and welfare. Moving to my third and
final topic is the California Environmental
Quality Act. We agree that typically the
review, modification, revocation of the use
permit is subject to a categorical exemption.
That makes sense, because you've already issued
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an entitlement. You've probably gone through
the environmental review,' and there's really not
much to talk about in terms of potential
environmental impacts. CEQUA also provides for
what: we call the exceptio:n-to the exemption, and.
that's codified at'the':CEQUA guidelines section
15300.2,- and that.'.s Title.14 of the California
Code,of Regulations.. The -concept of the _
exception to the exemption is that any codified
categorical exemption recognizes that .there.can
be unique circumstances where that exemption
doesn't truly apply tothe circumstance. And as:.
I pointed out before, we're dealing with a use
permit that's related to a state mandate for the
reduction of solid waste material. I've noted
that we're talking about annually four million
pounds of recycled materials. CEQUA applies the
concept of a baseline, the existing physical
setting. To rely on a categorical exemption in
the context of possibly revoking Garcia
Recycling's permit would result in a violation
of the California Environmental Quality Act by
the mere essence that you have a physical
baseline of a facility that is recycling four
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2 million pounds of material. If you take that
3 away, you're going to have to analyze where does
4 that four million pounds go? What is the carbon
5 footprint? Again, now that we have Assembly
6 Bill 32, we have to deal with carbon emissions,
7 greenhouse gas emissions. What is the
8 environmental net result of eliminating that
9 baseline? That's how the analysis should work,
10 and we've commented that we believe the
11 exception to the exemption applies. And under
12 the Bankers Hill decision I believe that there
13 are findings that this commission should make if
14 they intend to truly rely on a categorical
15 exemption. So again, with that I would, it is
16 an adjudicative proceeding. I would also like
17 to, because it is adjudicative, we would like to
18 reserve some time for rebuttal. Typically in an
19 adjudicated proceeding we have the opportunity
20 to address the complainants. We're having
21 difficulty finding out who that is or what that
22 is. But I'd like to turn this over now to
23 Patricia Chen, so she can go through in some
24 greater detail the legal standards that apply
25 and some of the details of the evidence that
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2 we've compiled and lodged with the
3 administrative record. I do note that a lot of
4 the photographs, even though it was somewhat
5. anemic, some of those photographs are clearly
6.- outdated. They have signage.that does.n't exist.
7 right now. So I don't'know why outdated— -
8 photographs were being used, butI just would
9 like. a. note., on the record that the photographs
10 that you saw are,outdated.and don't reflect the,
11 existing physical setting at Garcia Recycling,, -....
12 thank you
13 MR. RIGHEIMER: Okay,. and you will be able
.14 to rebut any -comments from the public or the
15 commission.
16 MR. MILES: Thank.you, Mr. Chair.
17 MS. PATRICIA CH.EN: Good evening,
18 commissioners. My name is Patricia Chen, also
19 with Miles Chen Law Group. I want to take this
20 time to.kind of go through, as Steve said, in
21 more detail the legal standards that apply in
22 this case and then kind of go through the
23 evidence as we see it as to what the city has,
24 or at least what was provided to use, and then
25 also what we've provided to the city. So the
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legal standard regarding revocation are set
forth in Costa Mesa Municipal Code Section 13-
2901. And basically, the planning commission
may require the modification or revocation of
any planning application and/or pursue any other
legal remedies as may be deemed appropriate by
the city attorney if the planning commission
finds that the use as operated or maintained
constitutes a public nuisance or does not comply
with the conditions of approval. Then we go to
the definitions of what a nuisance is, and
that's set forth in civil codes section 3479,
which says anything which is injurious to
health, including but not limited to the illegal
sale of controlled substances or is indecent or
offensive to the senses or an obstruction to the
free use of property so as to interfere with the
comfortable enjoyment of life or property or
unlawfully obstructs the free passage or use in
the customary matter of any navigable lake or
river, bay, stream, canal, or basin, or any
public park, square, street, or highway is a
nuisance. Civil code section 3480 states a
public nuisance is one which affects at the same
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2 time an entire community or neighborhood or any
3 considerable number of persons, although the
4 extent of the annoyance or damage inflected upon
5 individuals may be unequal. Going back to the
6 Goat Hill -Tavern decision, which Steve has cited.
7 and we've a.l.s.o cited in our documents submitted
8 to the city; once _a use permit has been properly
9 issued, the power of a._municipality to revoke it
10 is -limited. At that point, as Steve pointed
11 out, it,.becomes a. vested property right, and it
12 is entitled to protection:-. When a, permitee. has
13 acquired such a vested right, it cannot be
14 revoked unless the permitee fails to comply with
15 reasonable terms or conditions expressed in the
16 permit granted, or there is the compelling
17' public necessity. That is, there is a public
18 nuisance. We've scoured the documents that we
19 have in our possession with respect to the
20 evidence, and we've identified the following..
21 There's a letter dated November 17, 1992 signed
22 by seven individuals complaining of depreciation
23 of value of homes, transients, odors, unkempt
24 areas and unnecessary noise and trash. But I
25 wanted to note that this letter was written
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prior to Garcia Recycling's location to the
front of the parking lot away from the
residents. Then, there's an undated letter
signed by approximately 35 individuals urging
the city to revoke Garcia Recycling's use permit
stating basically the same things set forth in
the prior 1992 letter and saying that it's been
18 years, and the city ignored their 1992
complaint. Then, we received from the city at
the last hearing emails from Smart and Final
dated July 7 through 8 that actually refers to a
complaint letter that is not attached to the
email. Steve touched upon that. That's why I
think we may be struggling so much is because we
don't know exactly the basis of where the
complaints are coming from. But nevertheless,
in the correspondence that Smart and Final had
with the city, they actually, while they
complain of transients and they show pictures
showing the volume of folks who use the
facility, they also acknowledge that it is a
very busy center and removing it would not be
good for local businesses. And it is obvious
that a center at this location is an absolute
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2 necessity. Also, there was testimony of an
3 individualatthe July 12 planning commission
4 meeting complaining of the look of Garcia
5 Recycling, and I think this is kind of the crux.
6 of what's going -on, it's the visual impact.. And
7 as the city has submitted an additional memo
8 today,.it talks about -the urban, I forgot what.
9 the.wording was. It was an urban pathway on 19th
10 Street. So I think that's. kind of what we're...
11 'really getting at -is the :look of .Garcia
12 Recycling. Now, in response to this°evidence
13 we point out in our submittal, and we're
14 reiterating that, we have a letter from Victor
15 Bonia [phonetic] dated July 21. He's the part
i
16 owner of the shopping center and the property
17 manager, and he says that he has not received
18 complaints, and that all that is visible from
19 the street is really the front of the truck and
20 the back of an unmarked container. There's even
21 a tree blocking the view. He also doesn't
22 believe that Garcia Recyle brings in transients.
23 He points out that there's a soup kitchen across
24 the street, which we've also pointed out in our
25 submittal along with pictures of that facility.
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2 He also notes that Garcia Recycling keeps its
3 facility clean, and its employees are constantly
4 sweeping the area and picking up any litter. He
5 and his tenants have not found the noise to be
6 offensive, and they would be the ones most
7 directly affected by the noise and odors. And
8 he hasn't received any complaints about noise
9 from his customers. He also believes that
10 Garcia Recycling is located in an area of the
11 parking lot that does not cause a disruption to
12 the customers or the neighboring businesses. As
13 we pointed out, it's located in front of the
14 Lion's Den, which is a nightclub. So it's not
15 open during the day, so the parking lot is not
16 disruptive. Their activities in the parking lot
17 are not disruptive. WE also have a letter from
18 the neighboring businesses saying that they have
19 not felt that Garcia Recycling has disrupted
20 their businesse.s, and they are not offended by
21 the appearance of Garcia Recycling's operations,
22 nor have they complained of any noise, litter,
23 or homeless individuals. They also expressed,
24 as other individuals have during our public
25 outreach, that it's really unfair to blame
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2- Garcia Recycling for the homeless when there's
3 actually a soup kitchen across the street. We
4 also have a petition signed by over 500
5 individuals indicating support.for Garcia
6 Recycling and.agreeing that Garcia Recycling'.s
7. ..operations.are.not disruptive to the
8 surroundings or aesthetically offensive.. And.
9 Garcia's services are important to the
10. community. I thought it would be helpful:to
11 kind of give.the more current pictures of Garcia....:
-12 Recycling. These pictures were taken basically
13 in the last two weeks or so. And I thought it
14 was important for everyone to see what it looks
15 like when you're actually driving past Garcia
16 Recycling. So you see it, this is driving I
17 guess it would be west on 19th Street. Oh, east
18to west on 19th Street. And so you see Garcia
19 Recycling, and I'm sorry I don't have a pointer,
20 but that signage on the side of the containers
21 is what it looks like now. It doesn't have the
22 cash for cans sign that city staff had put up
23 earlier. They have completely painted their
24 containers as a result of working with the city
25 to address some of those issues back in last
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year from July and in the fall of last year. So
this is what it looks like now and has looked
like for months. This is a picture looking
straight on at the facility, and all you really
see is the one truck, and there is a tree
blocking it. And then past the facility that's
what you look at as you are passing from west to
east. This is a side view of the facility, what
it looks like. And here are residents walking
to Garcia Recycling, and we pointed this out in
our last submittal back on I think it was July
12. You know, Garcia Recycling really serves
the community, and many, many residents walk to
Garcia Recycling. And in fact, these very
residents would not be recycling if Garcia were
not in the location that it's in, and they've
kind of expressed that to us. Here are photos
of other facilities. I know that Mel had put up
a couple pictures before of the other
facilities. These are also very recent, and
they also show the activity much like Garcia
Recycling. It's inevitable that there is going
to be some of the transactions occurring outside
of the containers themselves. This is the Next
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2 Cycle micro site, and you can see the staging of :
3 recyclable materials outside the container.
4 This is Earth Wise, also in Costa Mesa, and same
5 thing here. You.have.people standing in line.
6' It's just inevitable.- And I think that isthe
7 end of my slide show. I just wanted to make
8. sure that you were able -to see the photos in a
9.. little bit more depth instead of the copies.
10 I'm not sure how great they came out... So.we
11 ..reiterate that.we.just don.!t think the evidence. .
12 is there for the.city.to be.able to revoke -the
13.. permit: So we're happy to answer any questions.
14 MR. RIGHEIMER: Commissioners, any questions
15 for the applicant?
16 MR. MCCARTHY: Mr. Chair.
17 MR. RIGHEIMER: Commissioner McCarthy.
18 MR. MCCARTHY: When, the photos that you
19 showed.of the facility, when were those taken?
20 MR. RIGHEIMER: Yes, we need one of you to
21 answer the questions. Yes.
22 MS. CHEN: They were taken in the last two
23 weeks.
24 MR. MCCARTHY: What time of day?
25 MS. CHEN: Jesse? Eleven o'clock or twelve
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2 o'clock in the midday during the busy time.
3 MR. MCCARTHY: That's fine, Mr. Chair..
4 Thank you.
5 MR. RIGHEIMER: Okay, any other questions
6 for the applicant?
7 MR. MENSINGER: Mr. Chair.
8 MR. RIGHEIMER: Commissioner Mensinger.
9 MR. MENSINGER: Is it okay if the applicant
10 comes up?
11 MR. RIGHEIMER: Well, whoever the applicant
12 wants to respond to --
13 MR. MENSINGER: [Interposing] I'd like to
14 ask Mr. Garcia some questions. I'm sorry, I
15 can't hear you. You need a mike.
16 MR. RIGHEIMER: Just come to the microphone
17 to answer.
18 MR. MILES: Mr. Commissioner, I think if we
19 can get the question, then we can as a team
20 decide who is the most appropriate --
21 MR. MENSINGER: [Interposing] Counselor, I
22 appreciate that. I really do. I realize your
23 counsel, but the applicant I think is Mr.
24 Garcia, and that's really the person that I'd
25 like to ask the question to.
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2 MR. MILES:. Correct, and we're his attorney,
3 and this is an adjudicated proceeding, so I
4 would like to know so that we can defer you to
5 the person that is going to give the best
6 response. I mean, it's just a matter of we've
7 all taken on.different tasks.
8 MR. RIGHEIMER: Understand. City attorney,.
9.. can you.give us what we need to do on that?
10 MALE VOICE: Mr. Garcia has chosen to be
11represented.by counsel here, so it's up to Mr.
12 Garcia whether or not he wants to have questions:
13 asked of him or he wants his counsel to address
14 the questions.
15 MR. RIGHEIMER: Okay, thank you. Anything
16 else, Commissioner.
17 MR. MILES: [Interposing] We don't
18 necessarily, I'm not, we don't have a problem.
19 MR.' RIGHEIMER: I understand. No problem.
20 No apology is needed.
21 MR. MILES: Thanks.
22 MR. MENSINGER: All right, question for you.
23 I'm going to ask questions through you for Mr.
24 Garcia. Is Mr. Garcia a Costa Mesa resident?
25 MR. JESSE GARCIA: I'm going to apologize
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