HomeMy WebLinkAbout- - Attachment 2 - 9/7/2010ATTACHMENT 2
MILES CHEN 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, Cl.
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
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 3
property, and to the north of property directly
across W. 19th Street, several commercial
properties including a pawn shop and a liquor
store. The property is zoned Cl and has a
general plan designation of general commercial.
The property is also located within the city's
19 West Urban Plan. The specific application
that's before you today is actually two separate
minor conditional use permits that were
processed for this property. The first one was
zoning application ZA-89-25, the 89 signifying
the year in which the application was first
approved. This was the first minor conditional
use permit that was processed and approved for
Garcia's Recycling. At that time, the approval
was for the recycling container to actually be
directly adjacent to the W. 19th Street frontage.
In 1992, an amendment to the application, ZA-92-
10, was processed relocating that recycling
facility to its present location that you see in
the lower right hand portion of your screen.
The city's municipal code does allow the
commission to modify and/or revoke a planning or
zoning application if the following conditions
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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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.
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 5
Specifically, concerns have been raised
resulting from noise related to the pouring of
recycled materials, cans and bottles, into the
containers at the facility, odors related to the
used beverage containers that are collected at
this facility, and loitering and customers
parking on adjacent properties to use the
recycling facility. An issue was also raised
regarding negative visual impact due to the
excessive signage that was on the containers
that you can see in these photographs as well as
a lack of property maintenance that you can also
see in these photographs. The containers at
this location generally have a battered
appearance, and the landscape planners
surrounding the use have not been adequately
maintained as a result of the high use of the
facility by its customers. Also, because of the
high demand by customers for this facility, it
necessitated the staging of a truck in addition
to the existing recycling container that's on
the property. As I indicated, since July 2009,
staff has been working with the applicant to
resolve a lot of these issues. And attached in
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 6
your original July 12, 2010 staff report is a
summary of the efforts staff has undertaken as
well as the applicant/operator has undertaken to
try to resolve the issues at this facility.
However, it is staff's opinion that many of the
issues still remain unresolved. According to
city records, the city has had no complaints
related to noise, odor, loitering, property
maintenance with regards to the other recycling
facilities that are located within the city of
Costa Mesa. These are some additional
photographs of the Garcia's Recycling location,
and these are photographs that show the other
locations in the city, the recycling center at
Orange Coast College in the upper left hand
corner of your screen. Recycling facility for
Earth Wise at the Stater [phonetic] Brothers
Market at Newport and 22nd in the middle upper
portion of the screen, and of course another
photograph of Garcia's Recycling on the right
hand portion of your screen, and the existing
recycling facility at Bonds [phonetic] Market
Shopping Center on E. 17th Street, which is at
the bottom portion of your screen. In your
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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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
operational facility to surrounding properties.
The second alternative is to revoke both 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
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 8
memorandum that was printed on yellow paper that
actually incorporated some additional findings
that were reflected in the original July 12
planning commission staff --
MALE VOICE: Where was that again?
MR. LEE: It's your supplemental memorandum
on the yellow sheet. It's a revised resolution,
if the commission chooses to revoke both minor
conditional use permits with some additional
findings that were incorporated reflecting the
items that were discussed in the staff report.
And the third alternative is to basically
receive and file the report, which basically
would mean the commission would take no action
to either modify or revoke the minor conditional
use permits and would basically allow the
facility to continue to operate as is. For your
packets this evening, we did prepare an updated
memorandum that reflects some of the issues that
the legal counsel for Garcia's Recycling raised
in their letter dated July 12, 2010.
Specifically, there are two items that the
attorney raised in the letter that I do want to
address this evening. The first is that the
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 9
applicant's legal counsel made a statement in
the letter that basically if the commission were
to take the action to revoke both of the
Garcia's Recycling minor conditional use
permits, the alternative two, that basically two
convenient zones would be in violation of the
state law with regards to recycling. It's known
as the Bottle Bill. Staff did contact a
representative of Cal Recycle, which is the
California agency that does oversee recycling
centers in the area. They did provide us this
exhibit which shows the convenient zones in the
immediate area of Garcia's Recycling. By
further definition, a convenient zone is how Cal
Recycle sets up the criteria for determining
whether a recycling facility needs to go into a
certain area based upon a number of supermarkets
that are in that area. As you can see in this
exhibit, in addition to Garcia's Recycling,
which is this actual symbol here, is the
recycling center at the Bonds Market, which is
this symbol here. As you can see, the
convenient zones actually overlap in this area,
and according to Cal Recycle, if the commission
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 10
were to take the action to revoke both minor
conditional use permits, it would not results in
what's called an un -served convenient zone by
state definition, because the area would
continue to be served by the existing recycling
facility at Bonds Market. Furthermore, if you
go to the frequently asked question page on the
Cal Recycle website, they also state on their
website that multiple overlapping convenient
zones can be served by a single recycler. The
second issue the applicant's legal counsel
raised in their letter was that in fact if the
commission were to take the action to revoke
both minor conditional use permits, it would
potentially compromise the city's integrative
waste management plan. The staff did contact
the Cost Mesa Sanitary District, which of course
is involved in overseeing the integrated waste
management plan and did confirm that in addition
to independent recyclers like the Garcia's
Recycling, the Orange Coast College, and other
recycling facilities, the city of Costa Mesa
Sanitary District does in fact, as part of the
waste division program, does recycle items out
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 11
of the regular waste stream and diverts those
materials to a recycling facility. The actual
documentation is attached to your staff report
that's included in today's packet. And we also
did receive a separate written confirmation from
the Costa Mesa Sanitary District also stating
that they do provide their own recycling in
compliance with the state regulations for waste
diversion.
MR. RIGHEIMER: Mr. Lee, that's the August
9th letter, 2010, from the Costa Mesa Sanitary
District?
MR. LEE: Yes, that is correct.
MR. RIGHEIMER: Okay. I want to just put
that in the record and make sure that the
applicant has a copy of that.
MR. LEE: Yes, that is correct.
MR. RIGHEIMER: Okay, thank you.
MR. LEE: So that basically brings you up to
date on the status of the continued hearing or
the review of zoning application ZA-89-25 and
ZA-92-10. This concludes my presentation. I
can respond to any questions any of the
commissioners may have.
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 12
MR. RIGHEIMER: Commissioners questions for
staff.
MR. COLIN MCCARTHY: Mr. Chair.
MR. RIGHEIMER: Commissioner McCarthy.
MR. MCCARTHY: I'm looking at the new
proposed findings, and it mentions the city's
2000 general plan and the fact that 19th Street
is in the urban path, quote, unquote. What is
that referring to?
MR. LEE: W. 19th Street is designated as
what is known as an Urban Path. In other words,
it's a major arterial, where it's targeted for
overall improvement and enhancement. Of course,
the city undertook a beautification project
several years ago with the repaving and the new
light standards and basically new development
also has to comply with development standards in
terms of landscaping, building architecture,
things of that nature. So that's basically what
that's making reference to.
MR. MCCARTHY: Okay, and then my other
question, and I don't know if this is for you or
for counsel, Municipal Code Section 1329, which
provides a basis for the modification and
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 13
revocation of the CUP provides an or. There's
the public nuisance or the failure to meet the
conditions, correct?
MR. LEE: Yes, that's correct.
MR. MCCARTHY: It's not a requirement of
both. You don't need to find their not meeting
their conditions of approval and it's a public
nuisance.
MR. LEE: That is correct.
MR. MCCARTHY: So it could be found by this
body to be a nuisance and modified or revoked,
or it could be found to be not operating within
the conditions of approval and modified or
revoked, correct?
MR. LEE: Yes, that is correct.
MR. MCCARTHY: Okay. Thank you, Mr.
Chairman.
MR. RIGHEIMER: Commissioners.
MR. SAM CLARK: Mr. Chair.
MR. RIGHEIMER: Vice Chair Clark.
MR. CLARK: Mr. Chair, I'd like to ask
counsel a couple of questions with regards to
the letter and/or packet that we received from
Ms. Chen dated August 6. Mr. Adams, on page
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 14
two, item number two, she references revocation
of the Garcia Recycling Conditional Use Permit
is unjustified and would amount to an abuse of
planning commission discretion and then sites
Goat Hill Tavern versus City of Costa Mesa.
Could you comment on that for me?
MR. ADAMS: Yes. Goat Hill Tavern is a much
more complicated case that what is indicated in
the findings here. The finding of whether it is
a public nuisance is not a legal conclusion.
That is a factual conclusion that this
commission has within their purview to make.
Goat Hill Tavern is a completely different type
of case. It was based on different issues, and
there's nothing there that I would say prevents
you from looking at this matter and making the
determinations that you need to make.
MR. CLARK: Okay. And then, item number
three she mentions revocation of the permit is
subject to CEQUA, California Environmental
Quality Act. Could you comment on the accuracy
of that as well?
MR. ADAMS: Well, there is a CEQUA review,
and the staff has addressed that in the report.
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 15
There's an exemption applied.
MR. CLARK: Thank you very much.
MR. RIGHEIMER: Commissioners, are there
questions for staff? I have a question, Mr.
Lee. I'm sorry.
MR. STEPHEN MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger,
please.
MR. MENSINGER: Mel, this is a question for
you. When Garcia's originally received their
CUP for recycling wasn't there a facility
located in the back of the shopping center,
toward the houses?
MR. LEE: Yes. Actually, the 1989 minor
conditional use permit was for the location
along the W. 19th Street frontage. What had
happened was they had actually moved the
containers to the rear of the property, which of
course resulted in complaints from the neighbors
that are immediately butting into it to the
south. So as a result of that, that is what led
to the 1992 revision that basically put it out
back towards the front of the street but at the
location that it's located at today.
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 16
MR. MENSINGER: Second question, in 2000,
this item was pulled up it looks for review, the
CUP was pulled up for review by the planning
commission. Do you have any information on
that?
MR. LEE: I did see in the packet a request
to bring it up for review. Actually, I'm not
certain if that review ever went forward.
Perhaps at that time the applicant had modified
their operation to address whatever issues were
in effect at that time. But I was not able to
actually find a record where that request to
bring it before the commission was actually
brought forward to the commission.
MR. MENSINGER: And the third question, as
it relates to Garcia's, it's my understanding
that the counsel for Garcia's came forward about
a year ago asking for an expansion of their
facility. Can you enlighten us as to what the
request was a year ago?
FEMALE VOICE: Chair and commissioners, the
request was just to address the violations that
staff had said they were in on the property. It
was not to expand it.
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 17
MR. MENSINGER: Okay. Is the volume of
recyclables today the same as it was when they
originally received their CUP. Is it the same
operation?
MR. LEE: It is the same operation in terms
of the number of containers, yes.
MR. MENSINGER: Okay. Very good. Thank
you.
MR. RIGHEIMER: Okay, the question I have,
and I think you just touched on it. The May 22
letter of 2000 that went to Garcia looked like
it was generate from staff, signed by Wullah
[phonetic]. Here, and it basically was telling
them to, discussing their MCUPs. However, the
findings used to justify the MCUPs can no longer
be made and the conditions approved are not
consistently complied with. Therefore, the
recycling needs to be discontinued. What you're
saying is we have no record of what happened
after that.
MR. LEE: That's correct.
MR. RIGHEIMER: Okay, and then on page 22
we've got a spreadsheet here that shoes the
amount of recycling done for aluminum cans,
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 18
plastic, HDPE number two, and glass. Where did
that document come from?
MR. LEE: This document was supplied by the
applicant's legal counsel, so they can probably
provide information as where this information
came from.
MR. RIGHEIMER: Okay. It came from the
applicant's counsel.
MR. LEE: That's correct.
MR. RIGHEIMER: Okay. Okay, any other
questions for staff?
MR. MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger.
MR. MENSINGER: Mel, just so I understand
the landscape here, Mr. Banella [phonetic] is
the owner of that shopping center. Is that
correct?
MR. LEE: Yes, that's correct.
MR. MENSINGER: Okay, and is it customary
for a recycling center like Garcia's to have a
rental agreement with Mr. Banella to lease that
space?
MR. LEE: Yes, a lease agreement, yes.
MR. MENSINGER: Is that public record, do
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 19
you know?
MR. LEE: We do not have a copy of that
least agreement, no, so it would not be part of
the public record.
MR. MENSINGER: Okay, thank you.
MR. RIGHEIMER: Any other questions for
staff? Okay, I'm going to report any ex parte
communications. Anybody met with or talked with
the applicant or any other neighbors in the area
at all since the last meeting? None? Okay.
MALE VOICE: Mr. Chair, I did speak with a
couple of neighbors in the area.
MR. RIGHEIMER: Okay. Anybody else speak
with some neighbors in the area. You don't have
to say you spoke. We have to say we spoke.
It's okay. You're allowed to speak to us.
MALE VOICE: Mr. Chair, I believe I received
a couple of emails.
MR. RIGHEIMER: Emails. I think I also
received, and those would be in the record.
MALE VOICE: As did I, Mr. Chair.
MR. RIGHEIMER: Okay, thank you. Okay, I'm
going to go ahead and open the public hearing.
Do we have the representative of Garcia's here?
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 20
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
Ubiqus Reporting
2222 Martin Street Suite 212, Irvine, CA 92612
Phone: 949-477-4972 FAX 949-553-1302
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COSTA MESA PLANNING COMMISSION MEETING 21
going to touch on the evidence that has been
presented in this case and some of the
evidentiary standards that apply to the
conditional use permit. My partner, Patricia
Chen, is going to go into more detail on that.
And then, I'm going to finish with the
California Environmental Quality Act, taking
into consideration the comments from your deputy
city attorney. I'll address that issue in this
context of a conditional use permit that
implicates the unknown of four million pounds of
solid waste. So to begin, just so we
understand, the Goat Hill Tavern case was
referenced. And basically, besides saying that
it's a complicated case, the reality is that
it's a seminal decision. It's somewhat ironic
that it was this fine city that brought us that
decision. But it is the seminal decision on
conditional use permits, and it's important, I'm
also a municipal attorney, and I find that
sometimes public officials, elected and non-
elected public officials, often confuse the
distinction between issuing a use permit and
what occurs once it is issued. And that's
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COSTA MESA PLANNING COMMISSION MEETING 22
really one of the legal concepts, the tenants
that Goat Hill Tavern addressed, which says that
once that conditional use permit is issued, you
know, up to that point this commission has full
discretion. It can condition it. It can weight
evidence. It can decide everything it wants to.
Once that use permit is issued, it then becomes
a fundamental vested property right of the
permit holder. And so the rules change. The
rules change with respect to the review of it,
the revocation, the modification of it. And the
rules change with respect to the way a court
will review the action of this commission with
respect to that permit. This proceeding is a
quasi -adjudicative proceeding. It relates to
that permit that's held by an individual. It's
not legislative. You don't get that same
deference that you would otherwise be accustomed
to in the issuance of a permit. I just wanted
to point that out, because that's kind of an
underlying tenant of what we're discussing. In
the staff report there are I believe two or
three recommended actions, and they relate to
these two minor conditional use permits, zA-89-
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COSTA MESA PLANNING COMMISSION MEETING 23
25 and ZA-92-10. There was an explanation about
why you can revoke one, and I don't quite
understand the rationale. But what I will say
is that those two use permits are not wholly
integrated in any way, shape, or form. There's
no supersede language in the '92 permit, so from
a legal position, Garcia Recycling will point
out that both of those permits run with the
land; both of those permits are fundamental
vested property rights; and neither one of them
should be revoked or modified without ample
evidence and justification by this commission.
Getting into the evidence that's been submitted.
We've been struggling with this. We were asked
to represent Garcia Recycling. We participated
in a public outreach. Every known complainant
was issued a letter, and surprisingly, and Pat,
my partner, will get into this in more detail,
we haven't received a single verification of a
complaint. We saw actually on a Public Records
Act request we saw that there was an email that
was referencing a complaint by Smart and Final.
There was a reference to an exhibit or an
attachment to the email. That attachment wasn't
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included in our Public Records Act materials, so
we've struggled with trying to figure out what
exactly is the essence of the complaint that has
driven this review proceeding. Fundamentally, I
would say that there is no evidence, let alone
substantial evidence, of a violation of the use
permit. And there certainly is nothing that
arises to a public nuisance that would justify
revocation. Whether or not there's
justification to work cooperatively with Garcia
Recycling to do some things, that's always good.
That's being a good neighbor, which I think
Garcia Recycling has been for the 21 years that
it has been operating without complaint under
its use permit. So what I'd like to point out
is the concept of celerity. And the best way to
describe celerity is the anecdote about getting
your hand in the cookie jar. And you ask should
you slap that wrist within a minute of getting
that hand in the cookie jar, a week later, a
year later, a decade later. What's the efficacy
of that? You want to slap the wrist
immediately. Usually you have a violation and
then you have a response. Seldom do you see,
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and you certainly didn't see this in the Goat
Hill Tavern decision, that 20 years have gone by
and then all of a sudden we've got an issue with
the use permit. We think we have a public
nuisance or we have violations of the conditions
of this permit. I would implore upon this
commission to go back to the Goat Hill Tavern
decision. I know it's complex, but really one
of the distinctions, and chairman, you made
great distinctions about the In and Out Burger,
about how that In and Out Burger won't result in
a traffic, a queuing or a parking problem based
on the circumstances. The Goat Hill Tavern
decision interestingly had to do with a bar. It
had to do with a liquor license, a liquor
establishment. It didn't have to do with
something that's mandated by state law. See,
Garcia Recycling is a use permit that is also
fulfilling a state mandate. So that's a
distinction that you should look at between this
circumstance and the facts and the evidence in
Goat Hill Tavern, because if you read that
decision carefully, you'll see that the City of
Costa Mesa did a good job of documenting
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COSTA MESA PLANNING COMMISSION MEETING 26
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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COSTA MESA PLANNING COMMISSION MEETING 27
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 exception 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 to the 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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COSTA MESA PLANNING COMMISSION MEETING 28
million pounds of material. If you take that
away, you're going to have to analyze where does
that four million pounds go? What is the carbon
footprint? Again, now that we have Assembly
Bill 32, we have to deal with carbon emissions,
greenhouse gas emissions. What is the
environmental net result of eliminating that
baseline? That's how the analysis should work,
and we've commented that we believe the
exception to the exemption applies. And under
the Bankers Hill decision I believe that there
are findings that this commission should make if
they intend to truly rely on a categorical
exemption. So again, with that I would, it is
an adjudicative proceeding. I would also like
to, because it is adjudicative, we would like to
reserve some time for rebuttal. Typically in an
adjudicated proceeding we have the opportunity
to address the complainants. We're having
difficulty finding out who that is or what that
is. But I'd like to turn this over now to
Patricia Chen, so she can go through in some
greater detail the legal standards that apply
and some of the details of the evidence that
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COSTA MESA PLANNING COMMISSION MEETING 29
we've compiled and lodged with the
administrative record. I do note that a lot of
the photographs, even though it was somewhat
anemic, some of those photographs are clearly
outdated. They have signage that doesn't exist
right now. So I don't know why outdated
photographs were being used, but I just would
like a note on the record that the photographs
that you saw are outdated and don't reflect the
existing physical setting at Garcia Recycling,
thank you.
MR. RIGHEIMER: Okay, and you will be able
to rebut any comments from the public or the
commission.
MR. MILES: Thank you, Mr. Chair.
MS. PATRICIA CHEN: Good evening,
commissioners. My name is Patricia Chen, also
with Miles Chen Law Group. I want to take this
time to kind of go through, as Steve said, in
more detail the legal standards that apply in
this case and then kind of go through the
evidence as we see it as to what the city has,
or at least what was provided to use, and then
also what we've provided to the city. So the
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COSTA MESA PLANNING COMMISSION MEETING 30
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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COSTA MESA PLANNING COMMISSION MEETING 31
time an entire community or neighborhood or any
considerable number of persons, although the
extent of the annoyance or damage inflected upon
individuals may be unequal. Going back to the
Goat Hill Tavern decision, which Steve has cited
and we've also cited in our documents submitted
to the city, once a use permit has been properly
issued, the power of a municipality to revoke it
is limited. At that point, as Steve pointed
out, it becomes a vested property right, and it
is entitled to protection. When a permitee has
acquired such a vested right, it cannot be
revoked unless the permitee fails to comply with
reasonable terms or conditions expressed in the
permit granted, or there is the compelling
public necessity. That is, there is a public
nuisance. We've scoured the documents that we
have in our possession with respect to the
evidence, and we've identified the following.
There's a letter dated November 17, 1992 signed
by seven individuals complaining of depreciation
of value of homes, transients, odors, unkempt
areas and unnecessary noise and trash. But I
wanted to note that this letter was written
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COSTA MESA PLANNING COMMISSION MEETING 32
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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COSTA MESA PLANNING COMMISSION MEETING 33
necessity. Also, there was testimony of an
individual at the July 12 planning commission
meeting complaining of the look of Garcia
Recycling, and I think this is kind of the crux
of what's going on, it's the visual impact. And
as the city has submitted an additional memo
today, it talks about the urban, I forgot what
the wording was. It was an urban pathway on 19th
Street. So I think that's kind of what we're
really getting at is the look of Garcia
Recycling. Now, in response to this evidence,
we point out in our submittal, and we're
reiterating that, we have a letter from Victor
Bonia [phonetic] dated July 21. He's the part
owner of the shopping center and the property
manager, and he says that he has not received
complaints, and that all that is visible from
the street is really the front of the truck and
the back of an unmarked container. There's even
a tree blocking the view. He also doesn't
believe that Garcia Recyle brings in transients.
He points out that there's a soup kitchen across
the street, which we've also pointed out in our
submittal along with pictures of that facility.
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COSTA MESA PLANNING COMMISSION MEETING 34
He also notes that Garcia Recycling keeps its
facility clean, and its employees are constantly
sweeping the area and picking up any litter. He
and his tenants have not found the noise to be
offensive, and they would be the ones most
directly affected by the noise and odors. And
he hasn't received any complaints about noise
from his customers. He also believes that
Garcia Recycling is located in an area of the
parking lot that does not cause a disruption to
the customers or the neighboring businesses. As
we pointed out, it's located in front of the
Lion's Den, which is a nightclub. So it's not
open during the day, so the parking lot is not
disruptive. Their activities in the parking lot
are not disruptive. WE also have a letter from
the neighboring businesses saying that they have
not felt that Garcia Recycling has disrupted
their businesses, and they are not offended by
the appearance of Garcia Recycling's operations,
nor have they complained of any noise, litter,
or homeless individuals. They also expressed,
as other individuals have during our public
outreach, that it's really unfair to blame
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COSTA MESA PLANNING COMMISSION MEETING 35
Garcia Recycling for the homeless when there's
actually a soup kitchen across the street. We
also have a petition signed by over 500
individuals indicating support for Garcia
Recycling and agreeing that Garcia Recycling's
operations are not disruptive to the
surroundings or aesthetically offensive. And
Garcia's services are important to the
community. I thought it would be helpful to
kind of give the more current pictures of Garcia
Recycling. These pictures were taken basically
in the last two weeks or so. And I thought it
was important for everyone to see what it looks
like when you're actually driving past Garcia
Recycling. So you see it, this is driving I
guess it would be west on 19th Street. Oh, east
to west on 19th Street. And so you see Garcia
Recycling, and I'm sorry I don't have a pointer,
but that signage on the side of the containers
is what it looks like now. It doesn't have the
cash for cans sign that city staff had put up
earlier. They have completely painted their
containers as a result of working with the city
to address some of those issues back in last
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COSTA MESA PLANNING COMMISSION MEETING 36
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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COSTA MESA PLANNING COMMISSION MEETING 37
Cycle micro site, and you can see the staging of
recyclable materials outside the container.
This is Earth Wise, also in Costa Mesa, and same
thing here. You have people standing in line.
It's just inevitable. And I think that is the
end of my slide show. I just wanted to make
sure that you were able to see the photos in a
little bit more depth instead of the copies.
I'm not sure how great they came out. So we
reiterate that we just don't think the evidence
is there for the city to be able to revoke the
permit. So we're happy to answer any questions.
MR. RIGHEIMER: Commissioners, any questions
for the applicant?
MR. MCCARTHY: Mr. Chair.
MR. RIGHEIMER: Commissioner McCarthy.
MR. MCCARTHY: When, the photos that you
showed of the facility, when were those taken?
MR. RIGHEIMER: Yes, we need one of you to
answer the questions. Yes.
MS. CHEN: They were taken in the last two
weeks.
MR. MCCARTHY: What time of day?
MS. CHEN: Jesse? Eleven o'clock or twelve
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COSTA MESA PLANNING COMMISSION MEETING 38
o'clock in the midday during the busy time.
MR. MCCARTHY: That's fine, Mr. Chair.
Thank you.
MR. RIGHEIMER: Okay, any other questions
for the applicant?
MR. MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger.
MR. MENSINGER: Is it okay if the applicant
comes up?
MR. RIGHEIMER: Well, whoever the applicant
wants to respond to --
MR. MENSINGER: [Interposing] I'd like to
ask Mr. Garcia some questions. I'm sorry, I
can't hear you. You need a mike.
MR. RIGHEIMER: Just come to the microphone
to answer.
MR. MILES: Mr. Commissioner, I think if we
can get the question, then we can as a team
decide who is the most appropriate --
MR. MENSINGER: [Interposing] Counselor, I
appreciate that. I really do. I realize your
counsel, but the applicant I think is Mr.
Garcia, and that's really the person that I'd
like to ask the question to.
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MR. MILES: Correct, and we're his attorney,
and this is an adjudicated proceeding, so I
would like to know so that we can defer you to
the person that is going to give the best
response. I mean, it's just a matter of we've
all taken on different tasks.
MR. RIGHEIMER: Understand. City attorney,
can you give us what we need to do on that?
MALE VOICE: Mr. Garcia has chosen to be
represented by counsel here, so it's up to Mr.
Garcia whether or not he wants to have questions
asked of him or he wants his counsel to address
the questions.
MR. RIGHEIMER: Okav, thank vou. Anvthina
else, Commissioner?
MR. MILES: [Interposing] We don't
necessarily, I'm not, we don't have a problem.
MR. RIGHEIMER: I understand. No problem.
No apology is needed.
MR. MILES: Thanks.
MR. MENSINGER: All right, question for you.
I'm going to ask questions through you for Mr.
Garcia. Is Mr. Garcia a Costa Mesa resident?
MR. JESSE GARCIA: I'm going to apologize
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COSTA MESA PLANNING COMMISSION MEETING 40
for my English, because my language is Spanish,
but I came to this country 30 years ago. I've
been a resident and now an American citizen.
I've lived in Cost Mesa for four years. This is
my town. I had to move to the border of Santa
Ana and Fountain Valley for reason for my school
for my kids for Santa Barbara. I have a
beautiful wife, - - kids, and God has provided
for me. And I'm so happy here to present my
life, because when I came to this country, I
came illegal, and I came thanks to my wife. I
got a resident. I got my American -ship. And
I've been working by the state for 22 years.
And I'm so happy. I've known Mr. Lee for about
20 years from Garden Grove. He gave me the
permission to do my plan that I have been
suffering too many robberies.
MR. MENSINGER: Mr. Chair, I just want to
ask him a question.
MR. GARCIA: Too many robberies is why I
tried to buy a main place to recycle. But I
feel bad for these things. I've been trying to
work the best I can - - and Rebecca know. And
I'm here, and I just want to say if you revoke
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COSTA MESA PLANNING COMMISSION MEETING 41
the license, I'm happy. I know God will
provide, and I want to say thank you for
everything. My English is very bad, but I want
to, any questions you can ask.
MR. RIGHEIMER: Okay, thank you.
MR. MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger.
MR. MENSINGER: Mr. Garcia I just want to
say, first of all I want to say thanks for
providing a great service. I think recycling
all of us agree up here, we want to make sure we
clear the air on this, recycling is important
for our community. As a matter of fact, we do a
lot of it in all the youth sports that all of us
give time to - - or Estancia [phonetic]. We're
all actively involved in all kinds of elements
of the green process. And I just want you to
understand this is not about you. It's about
the people in the community that are being
affected by this particular use, and there are
concerns about --
MR. RIGHEIMER: [Interposing] Okay. Is
there a question for the applicant?
MR. MENSINGER: Mr. Garcia, so you do live
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in Costa
Mesa?
MR.
GARCIA: I used to live in Costa Mesa
for four
years.
MR.
MENSINGER: You live in Costa Mesa?
MR.
GARCIA: No.
MR.
MENSINGER: You don't live in Costa
Mesa?
MR.
GARCIA: No.
MR.
MENSINGER: Okay. You live in Fountain
Valley now?
MR.
GARCIA: It's one house only divided.
MR.
MENSINGER: Okay, and you're the owner
of this
business, correct?
MR.
GARCIA: Yes.
MR.
MENSINGER: You're the sole owner?
MR.
GARCIA: Yes.
MR.
MENSINGER: That's the only question I
have for
you.
MR.
GARCIA: Thank you.
MR.
RIGHEIMER: Any other questions for the
applicant.
MR.
JIM FITZPATRICK: Mr. Chair.
MR.
RIGHEIMER: Commissioner Fitzpatrick.
MR.
FITZPATRICK: Thank you. So I consider
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COSTA MESA PLANNING COMMISSION MEETING 43
myself to be a green and sustainable guy, and
I'm a champion and advocate for many things
green and in particular recycling. I always
think we can do more to reduce, reuse, and
recycle. So I'm going to ask a couple of
questions on some solutions. But first, I just
had some fact -based questions. When you did
your education and outreach program, did you
invite any commissioners or city staff to the
event?
MS. CHEN: No. We passed out flyers in the
neighborhood, in the shopping mall, and we did
it in both Spanish and English. And then when
we did not, we had about just over 20 people
attend, and because we weren't happy about the
attendance, we had hoped for more, that's when
we went ahead and sent letters individually to
each of the folks who had signed the recent
petition. So we really were trying to do what
we could to kind of reach out.
MR. FITZPATRICK: Okay. Did you contact
Smart and Final?
MS. CHEN: No, we did not.
MR. FITZPATRICK: Okay. Could you put up
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those pictures again that we just went through?
No, they were the ones that the applicant
shared.
MR. RIGHEIMER: The applicant's pictures?
MR. FITZPATRICK: Yes, sorry about that.
Not that one. It might have been the one just
before it. Yes, okay. So in this view, the
cars that are parked in Smart and Final, are
those Garcia Recycling customers?
MS. CHEN: I can't tell from this picture,
but sometimes yes, there is crossover. Some of
the customers do park in that lot and walk over.
It goes both ways. As there are customers who
park in the Lion's Den lot and go to Smart and
Final, so it goes both ways.
MR. FITZPATRICK: Okay. Could you go down a
couple more? Keep going. Yes, same thing here.
And then one more, Mel. Yes, so the claim is
that if Garcia's was not available that these
residents would not recycle.
MS. CHEN: Yes. We've heard that from
folks, and they just can't walk to the nearest
facility. It's not within walking distance.
MR. FITZPATRICK: What would they do with
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that?
MS. CHEN: They probably would either not
pick up the recycling, because I know that a lot
of folks pick up the recycling off the streets.
So either they wouldn't pick up the recycling or
I'm not sure what they would do. I think we are
just going to speculate.
MR. FITZPATRICK: I just don't, I haven't
seen that much trash that exists in the city of
Costa Mesa. We've got a lot of code
enforcement. We street sweep once a week, and
then the sanitary district has demonstrated that
if those are left in the residential trash
containers that all that does get recycled. So
I'm not in support of your claim that that would
wind up in landfills.
MALE VOICE: Mr. Chairman, may I recommend
that at this point we just ask questions about
the presentation rather than provide any input?
MR. RIGHEIMER: Commissioner?
MR. FITZPATRICK: Thank you. So as I read
your documents here, honestly I think we come to
the same conclusions. I think this is a very, a
big business. Four million pounds is a lot of
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COSTA MESA PLANNING COMMISSION MEETING 46
recyclables.
MR. RIGHEIMER: Commissioner, if we can get
to the questions.
MR. FITZPATRICK: So with that, I am trying
to understand what opportunities there are to
modify the existing operation. And as I see on
handwritten page eight, we could stage a truck
or put a wrought iron fence. Are those the only
two options that you've come up with?
MS. CHEN: We have not come up with any of
the alternatives. Those alternatives were
developed by city staff, and they have not been
discussed with Garcia Recycling.
MR. FITZPATRICK: So then no recommendations
have come forward then?
MS. CHEN: We are more than happy to talk to
city staff about that, about potential
modifications, but at this point we haven't
started that discussion. We have worked with
the city addressing various concerns including,
for instance, the fact that the signage, they
didn't like the signage. We had the containers
painted. And also, we installed landscaping at
the request of the city. But as far as the
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COSTA MESA PLANNING COMMISSION MEETING 47
fence or any of the conditions that were set
forth in the agenda packet, we have not
discussed that with the city yet, but we're
happy to.
MR. FITZPATRICK: Thank you.
MR. MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger.
MR. MENSINGER: Just a question for staff.
I'm just curious, Mel, are there any other
businesses in the city of Costa Mesa that
operate out of 20 -foot or 40 -foot containers,
basically shipping containers besides recycling?
MR. LEE: Not that I can think of off hand,
no.
MR. MENSINGER: So would it be safe to say
there are none in the urban corridor.
MR. LEE: Yes, that would be correct.
MR. MENSINGER: The revitalized corridor.
Mrs. Chen, I'm just curious as a resident and a
planning commissioner, why wouldn't you or your
client come to the city with some solutions to
those pictures?
MR. RIGHEIMER: Commissioner Mensinger, I'm
going to call that question out of line. If you
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have a question for her --
MR. MENSINGER: [Interposing] That's what
I'm asking. Why wouldn't she come to the --
MR. RIGHEIMER: [Interposing] That's not
what we're here, I'm not looking for her to
figure out what she could do or couldn't do.
I'm going to look at what the application is.
MR. MENSINGER: Let me rephrase the
question. Do you have any idea why your client
hasn't come up with any solutions?
MR. RIGHEIMER: I'm going to call that
question out of line.
MR. MENSINGER: That's fine. No further
questions.
MR. RIGHEIMER: No further questions. Any
other questions from commissioners? I have a
question if --
MR. FITZPATRICK: [Interposing] I have a
quick question.
MR. RIGHEIMER: Mr. Fitzpatrick.
MR. FITZPATRICK: Is it an option to put a
truck? Is it an option to put a truck in this
facility as a potential solution? Is that even
a consideration?
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MR. LEE: I don't believe that's actually
reflected in our recommended conditions of
approval. I think that the way that it's worded
is just basically the containers without the
truck. But that's certainly an option the
commissioners can consider.
MR. MILES: Again, I think, as Patricia kind
of mentioned, we're at a phase where we're
discussing a potential revocation or
modification of the existing use permit. We've
done our diligence to try to establish what the
basis of the complaints were so that we can
address those complaints. Discussions about
what might be in the cooperative spirit
accomplished I think is something that needs to
be discussed, and these concepts I just,
unfortunately we haven't addressed those. But I
think as Patricia has mentioned that Garcia
Recycling is ready, willing, and able to work
cooperatively with city staff like they have in
the past to address any reasonable suggestions
from the city.
MR. RIGHEIMER: Thank you. I have a
question for Ms. Chen, I guess. If we go to
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COSTA MESA PLANNING COMMISSION MEETING 50
page 25, the actual CUP, the MCUP ZA-92-10, do
you have that? I'm looking at conditions of
approval.
MS. CHEN: Sorry, which packet?
MR. RIGHEIMER: The first packet. And it
would have been pages 23, 24, 25. Correct, it's
the July packet.
MS. CHEN: Yes.
MR. RIGHEIMER: Okay, and on page 25, number
three, it reads any and all containers with a
maximum of two shall be located at the northwest
corner of the site, as shown in the approved
plans, and shall maintain a minimum set back of
20 feet from the front property line. Staff,
can you bring the picture up that we just had a
second ago? Just back up a couple of pictures.
Back up one more, I guess. Back up another one.
Back up one more. I guess this picture will
show in here I think we can agree that the truck
there is not a container.
MS. CHEN: It is a truck. It has a
container on it. And the reason why we think
that the two permits have to be read together is
because if you look on page 20 of the same
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COSTA MESA PLANNING COMMISSION MEETING 51
packet, and this is for the original 189 permit,
it says for the description of the project it
says my plan is to park at the location above
one ton truck to buy aluminum cans, plastic
bottles, and glass bottles. So together it
seems to us, and you know, it may be just a tiny
bit gray, but together it seems to me that the
two permits would allow for one truck and one
container.
MR.
RIGHEIMER:
Okay,
and can you tell me
how many
tons that
truck
is?
MR.
GARCIA: Three ton truck.
MS.
CHEN: Three ton truck.
MR.
RIGHEIMER: It's a three ton
truck?
Okay. And
as you follow on number three
it says
and shall
maintain a minimum set back
of 20 feet
from the
front of the property line.
Is the
front of
that truck 20 feet from the
property
line? Answer
through your attorney,
please.
MR.
MILES: The response is that
the belief
is that
the set back is in excess of
20 feet.
MR.
RIGHEIMER: For the front of
the truck.
MR.
MILES: From the front of the truck.
MR.
RIGHEIMER: Okay.
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MR. MILES: And again, well.
MR. RIGHEIMER: Go ahead. And then, Ms.
Chen, what are the number of employees out at
the property?
MS. CHEN: At any given time there are three
or four employees at the facility, four if it's
very busy.
MR. RIGHEIMER: So if I was at the property
at ten o'clock on Saturday morning and I saw
seven employees with hats on getting stuff out I
would have been mistaken?
MR. GARCIA: [Inaudible.]
MR. RIGHEIMER: You need to be on the
record.
MR. MILES: Again, the questions right now I
think are, one, outside of the staff report,
have no relationship to the complaints that
we've been trying to determine what the concerns
are. And it's a little bit difficult right now
for us to give you a legitimate and competent
answer. I think the essence of Garcia
Recycling's comment is that there is a
responsiveness to the volume of recycled
materials that are being generated and processed
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COSTA MESA PLANNING COMMISSION MEETING 53
through the facility. And one point I think
that we'd like to point out is that Mondays, for
example, are a very busy day, because the other
recycling facilities are closed on Mondays. So
Garcia Recycling provides a very invaluable
service to the community on Mondays. I suspect
that the point is that there are up to four
employees as a standard, and it probably
deviates from that given the need to respond to
volume. But I don't believe that there's any
condition in the CUP that mandates what amount
of employees can be assisting at Garcia
Recycling.
MR. RIGHEIMER: Thank you. Okay, and
lastly, the property at Smart and Final, the
application does not have a CUP to operate
business from Smart and Final, the Smart and
Final property next door, it's 709. It's not
part of this application.
MS. CHEN: The application I think speaks
for itself.
MR. RIGHEIMER: Okay, and then do employees
from Garcia's go over to cars and trucks and
unload from the Smart and Final property?
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COSTA MESA PLANNING COMMISSION MEETING 54
MS. CHEN: I don't know the answer to that.
MR. RIGHEIMER: Okay, thank you. Any other
questions? Counsel, I know you have some
comments you want to make with regards to the
presentation.
MALE VOICE: If you want, as far as some of
the legal issues that have raised, with regard
to the Goat Hill Tavern, earlier I didn't
mention this because I figured the commission
understands it. But I think it bears repeating.
I concur with counsel with regard to the impact
of Goat Hill Tavern as far as what has to be
shown. You're not looking at a new CUP with an
applicant requesting a CUP in this area. The
only, it's a higher level of showing that has to
come to show that it's a public nuisance, not
that it's just not a good fit, but that it's a
public nuisance. And Counselor Chen was correct
in the code sections she sited and showed you up
on the screen. They are correct with regard to
what a public nuisance is. It is described in
the civil code, which is referenced in the Costa
Mesa municipal code 3479 and 3480. What they
presented there was correct. What I mentioned
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earlier is Goat Hill Tavern does not say, cannot
be applied to say that the evidence as shown is
inadequate to find a public nuisance. Ms. Chen
didn't go on and evaluate the evidence, and you
can consider that. But Goat Hill Tavern isn't
saying to you that you can't find that there's a
public nuisance. That is your job to determine
whether there is a public nuisance or not.
CEQUA does have, it is true and cases have held
that sometimes categorical exemption doesn't
remove the project from CEQUA analysis. And
there is an exception to it, and the exception
is even though a categorical exemption may
apply, if it has a significant impact on the
environment, then you have to look past the
categorical exemption. And therefore, it
wouldn't apply. Sometimes something might fit
into a categorical exemption but it's having an
impact on the environment, and that's what CEQUA
is all about. So you can consider that. This
is the first I've heard that the applicant, and
maybe I didn't see all the information, two
things. It indicated that there's an opposition
to the revocation of the first CUP. The staff
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COSTA MESA PLANNING COMMISSION MEETING 56
has indicated that the second one, the minor CUP
was replacing the first one. Now, there's a
contest that I first hear tonight that they want
both CUPS. And then, Ms. Chen said it was a
little bit of a gray area. I think it's a big
gray area when you try to put both CUPS
together, which are talking about two separate
locations, and then saying that you can have a
truck there. We haven't researched that issue
because I didn't hear it until tonight. And as
far as the question about three or four
employees and if someone witnesses seven
employees, even though the number of employees
isn't in the conditions, I think it's in a quasi
judicial proceeding it would be appropriate to
test the credibility of any witnesses that are
providing you evidence. And Mr. Garcia did talk
to you about certain things. And if he
indicates there are three or four employees and
you've been out there and saw a different
number, I think that's something you can
consider with regard to credibility of the
witness. And then, there was an argument about
20 years of no code enforcement and all of a
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COSTA MESA PLANNING COMMISSION MEETING 57
sudden you're doing a revocation. I don't know,
just because, you know, and I'm not sure whether
there has been known code enforcement, but I
don't think that's a bar to you reviewing it now
if a public nuisance exists there. Again, a
much higher standard than if this was a new
application. Do you have any questions?
MR. MCCARTHY: Yes, Mr. Chair.
MR. RIGHEIMER: Commissioner McCarthy.
MR. MCCARTHY: We keep talking about the
public nuisance, but again, this goes back to
the question that I asked Mel earlier about
Costa Mesa's code gives two bases for
modification or revocation of the CUP, the
public nuisance standard, which you've discussed
and has been discussed in the presentation, or
the applicant's failure to meet their conditions
of approval, correct?
MALE VOICE: That's correct. Either one or
both would be something that you should be
considering when looking at this whole issue.
MR. MCCARTHY: Okay, but the heightened
standards that you were alluding to as far as
the public nuisance component of it, are you
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COSTA MESA PLANNING COMMISSION MEETING 58
interpreting the Goat Hill case to mean that
it's a heightened standard applied to the
failure to meet the original conditions of
approval also? Or is that only as it pertains
to the public nuisance complaint?
MALE VOICE: Well, yes. As far as
violations of conditions of approval, if there's
a constant violation of the conditions of
approval and it doesn't seem that you can get
compliance with those, that's something you can
consider. That's a different level. A new
applicant hasn't violated conditions. So what
they're trying to do is contrast what a new
applicant would be like and what level you have
to look. You're just looking for a good fit.
But after there is a vested property right, once
you, you know, a type of vested property right,
once you give them permission for the use, now
it can't be that it's not just a good fit. You
have to either find that it's a public nuisance
or they're just not living up to the conditions
of approval that you set on them. Those are the
things you can look at. Does that help?
MR. MCCARTHY: Yes.
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MR. RIGHEIMER: Any more comments from the
city attorney?
MR. MENSINGER: Mr. Chair.
MR. RIGHEIMER: Commissioner Mensinger.
MR. MENSINGER: This is for the city
attorney. So is a three ton truck being used
there a violation when they're allowed a one ton
truck? I just want to make sure I understand
that.
MALE VOICE: I'm sorry, what was that?
MR. MENSINGER: Their CUP allows for a one
ton truck.
MR. RIGHEIMER: Well, let's not, we can't
state that it does. There's a discussion
whether both CUPS are in effect or just one.
But if both were in effect I guess is the
question.
MR. MENSINGER: So can I, I guess --
MALE VOICE: [Interposing] If the condition
says you can only have a one ton truck there,
now again, I haven't read the CUP. But if it
says you can only have a one ton truck there and
they have a three ton truck, that would seem to
be a violation.
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COSTA MESA PLANNING COMMISSION MEETING 60
MR. MENSINGER: Okay, thank you.
MR. FITZPATRICK: Mr. Chair.
MR. RIGHEIMER: Commissioner Fitzpatrick.
MR. FITZPATRICK: I have another point of
clarification on handwritten page 22, the
schedule of recycling purchases. The 4.1 or so
million pounds, is that for Garcia's Costa Mesa
or all Garcias?
MS. CHEN: It's for that facility.
MR. RIGHEIMER: Any other questions? Okay,
we have a public hearing here. At this point,
members of the public can come up to the
microphones. Please give me your name and
address, and you will have three minutes to
speak to the issues.
MR. EDWARD CARMONE: Thank you. My name is
Edward Carmone [phonetic]. I live at 752 Center
Street, right around the corner. Could ask that
that slide, that overhead slide be shown right
at the very, very beginning?
MR. RIGHEIMER: On the presentation of our
staff or from Ms. Chen's staff?
MR. CARMONE: It was from the commission's
slide.
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COSTA MESA PLANNING COMMISSION MEETING 61
MR. RIGHEIMER: Okay, Mel. Okay.
MR. CARMONE: It's an overhead shot showing
19th Street and Wallace.
MR. RIGHEIMER: I'm going to hold for one
second. Can I answer your question?
FEMALE VOICE: I'm sorry. I don't mean to
interrupt, but this individual spoke at the last
hearing, and I think you, at least at the last
hearing said that was going to be his only
opportunity to speak.
MR. RIGHEIMER: Thank you. Sir, did you
speak at the last hearing?
MR. CARMONE: Yes, I did.
MR. RIGHEIMER: Okay, if you already spoke
at the last hearing, I can't have testimony from
you at this hearing. Is there anybody else? I
think your wife can do it for you. You don't
have to write your name. You can speak to this
without writing your name. Just make sure
before we leave we have it.
MS. FRANCA CARMONE: My name is Franca
Carmone, and I live at 752 Center Street. And I
have no objections about the recycling. In
fact, we love recycling. The only objections we
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COSTA MESA PLANNING COMMISSION MEETING 62
have is the location. I think there are other
locations that could be considered, and it would
be better. Nineteenth Street is a beautiful
street now. They've remodeled or redid it with
the lamps, beautiful lamps and et cetera, and
now this really detracts from it. There are a
lot of people coming around with large bags of
cans. I think if it would be in a different
location, maybe where you have more commercial
places like, well, like Pamona and 17th Street,
where they have the - - houses, that would also
be close to the people that could take their
recycling goods. It would be close to them, so
in case they think this is the best place to be,
because most of the people live around there who
collect these things. And they can walk to it.
So it's just the noise, and it does collect a
lot of people pick up cans, and they just take
it over there, and then they go. There are a
lot of liquor stores there, so they go and buy
some liquor with a little bit of money they make
there. And you can see a lot of people getting
around there that are homeless. So I would, my
only objection is if he could relocate someplace
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COSTA MESA PLANNING COMMISSION MEETING 63
else it would be nice. That's it.
MR. RIGHEIMER: Thank you.
MS. CARMONE: Thank you.
MS. CLAUDETTE MCKILLIAN: Mr. Chairman,
commission, I'm Claudette McKillian. My first
time I've ever attended a city hall meeting, but
this situation was important to me, so that's
why I'm here. With what Mrs. Carmone said in
wanting Mr. Garcia to relocate, maybe the soup
kitchen, maybe that should be relocated. And
what was mentioned about the businesses across
the street, a pawn shop, liquor store, soup
kitchen, a beauty salon which is right across
the street failed to be mentioned. I'm here in
favor of Mr. Garcia and his recycling business,
and I think one of the most important things
that have not been mentioned this evening is the
jobs that he provides for the young men that
work for him. I believe in capitalism. He is
providing jobs for people that don't have jobs
nowadays. I think it's important. He has been
in business for 20 years. He's a good American
citizen. All the legalities have been mentioned
by the attorneys, and I think that the recycling
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COSTA MESA PLANNING COMMISSION MEETING 64
place should stay. I see no reason why his
permit should not be reinstated. He's a
businessman. He's provided entrepreneurship.
This country was built on that. I think that
should be considered in your decision. I am
personally going to report this meeting, things
that we go to and attend for the Balboa Bay
Republican Women, and I know they will all be in
support of you, Mr. Garcia. Thank you.
MR. RIGHEIMER: Thank you. Anyone else want
to speak? Just come to the podium.
MR. VINCE PONICO: Good evening. My name is
Vince Ponico [phonetic], 20912 Skimmer Lane,
Huntington Beach. I have been a customer of Mr.
Garcia for over ten years and I'm here to show
my support for Garcia Recycling. The complaints
against this company are unjust. Garcia
Recycling provides a valuable service to the
city of Cost Mesa, such as preserving our
environment, employment in a struggling economy,
and providing cash to individuals who take the
time to recycle their reusables. Please give
Garcia Recycling a chance to survive. Thank
you.
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MR. RIGHEIMER: Thank you. Anyone else want
to speak? If you're going to speak, please come
down. It will be a little quicker.
MR. CHUCK PERRY: My name is Chuck Perry,
425 East Bay Street in Costa Mesa. I've been a
long-time resident here since 1958. I've dealt
with Mr. Garcia's business for a number of
times, and I just had a couple of questions. In
the very beginning it seemed to me when he first
started there was one container there. Now,
there's a truck parked on a concrete culvert
there and another container beside it. And if
they're doing four million pounds, what did they
do in the beginning when you guys gave them the
permission to be there? That's kind of one of
my questions. I don't know what it was in the
beginning, but I'm sure it's changed. What
happens when it goes from four million to eight
million? Do we have three containers sitting
there? Is that the next step? I'm kind of
asking what's the business plan here for the
city. Is having a truck and a container a
business plan? And the second thing and the
most upsetting thing to me is the way that they
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do their bottles. What they do is they take
them from one container and to get the liquids
out so that they're not, you're not being given
cash for that liquid, they dump them into
another, and the liquids go all over the ground.
And they have people that clean it up, and they
sweep it, but what happens to the liquids when
it starts to rain? It goes down into our sewer
system, and that's a question I think you guys
have to really look at. I'm not the complainant
here. I just was interested in it, because I
saw it. Those are kind of the questions I have.
Thank you very much.
MR. RIGHEIMER: Thank you. Anybody else
from the public want to speak? Name and
address, please.
MR. ERIC LARSON: Eric Larson, 168 East
Wilson, Costa Mesa. We've been recycling with
Garcia's for about ten years, that's me and my
small family. We've never seen any of the
violations that were mentioned. Formerly, we
lived on Shalimar Street in the early '70s when
the area wasn't so upgraded as it is today.
These are hardworking individuals, and we need
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COSTA MESA PLANNING COMMISSION MEETING 67
this facility in Costa Mesa, because there are
not many options on that side of town. The
thing that I'd like to say the most is the money
that we received from this recycling facility is
spent in this adjacent area here from the food
shops to the nearest gas station, which is on
the corner of - - and 19th. And we're
approximately responsible for about 200 pounds a
week, well, a month. Excuse me, a month. In my
heyday when I was doing it more for a full-time
basis, I was bringing in maybe three times that
much. And that's all coming from Costa Mesa and
money in return is being spent in Costa Mesa in
those vicinity pictured up here. That's all I
have.
MR. RIGHEIMER: Thank you. Anybody else
want to speak? And if you're going to speak,
please come to the microphone. It will speed it
up a little bit, thank you.
MS. LAVON LARSON: My name is Lavon Larson.
I live at 168 East Wilson Street in Costa Mesa.
I find that when I go to the recycling place the
four, five gentlemen that he has working for
him, they are polite, they are speedy, they
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accurately weigh, and they are very helpful. If
I had a heavy container, they would even help me
take it out of my car. As a senior citizen, I
really like that. They are needed. I need the
money from my recycling to buy the gas, and when
I was there, everything was clean. And I
understand when everybody has gone home they
sweep the parking lot, and they also wash it
down. I don't know if it goes into any sewer,
but they are very neat people. Thank you.
MR. RIGHEIMER: Thank you. Anybody else
want to speak? Seeing nobody else coming to the
microphone, I'm going to go ahead and close.
I'm sorry, call the applicant for rebuttal. And
there is not a time limit.
MR. MILES: Thank you, Mr. Chairman. I'll
keep it brief. I just wanted to reiterate the
Goat Hill Tavern decision. I think your deputy
city attorney and us are on the same page. I
just would like to point out that, you know, the
point is that in weighing evidence and this
commission deciding do you have the goods, do
you have the evidence that's necessary to revoke
or even modify this use permit. The Goat Hill
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COSTA MESA PLANNING COMMISSION MEETING 69
Tavern decision makes it clear that the
reviewing court is going to exercise independent
judgment, and that's something you should keep
into consideration. It's not an abuse of
discretion standard, and there's not going to be
deference to the commission. The court is going
to weigh it in its own eyes. And that's where
factually, if you look at the Goat Hill Tavern
decision, you'll see that the City of Costa Mesa
observed or received complaints, numerous
complaints that were documented about public
urination, intoxication in the vicinity. They
documented it. They took formal action. One of
the things that is glaringly missing here, and
it's always suspect in a nuisance proceeding or
in a revocation proceeding where you have no
evidence of citation, notice of violation, a
formal code enforcement proceeding. Typically,
an administrative body as this would prefer to
insulate itself before jumping right into
possibly damaging a property right and possibly
violating civil rights. And as a prefatory
action typically you would see something like an
administrative citation that would give the
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COSTA MESA PLANNING COMMISSION MEETING 70
permit holder an opportunity to address the
concern or the causable action which we are
continuing to struggle to define. In terms of,
if we're talking about let's think creatively
how do we resolve this, and we're talking about
possibly this second phase of what can, as a
good neighbor, or what cooperatively can be
accomplished, we might think about that. I
think there is an entire proceeding, an
administrative process that has been overlooked
that could have been a better vehicle I think to
start to get at that is there a legitimate
concern and can Garcia Recycling address that
concern before its fundamental vested property
rights are at issue. To address the two
containers and truck issue, again, there's
really not a slippery slope problem here. I
understand the concern that what was the start
point? How much tonnage was there? Is this
going to go to eight million pounds of recycle
material? The point is that Garcia Recycling is
limited to two containers. There's never going
to be more unless there's a modification of the
CUP. So the volume is controlled by that
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COSTA MESA PLANNING COMMISSION MEETING 71
condition, and that's typically what a CUP is
supposed to do. It's not a use of property by
right, but it's a use of property that's
understood as compatible with appropriate
conditions. And I think that's why the '92
permit has the two container language. And
again, the gray area or what we're debating
about whether or not the container can be on a
truck, really, the reality is that those
containers have to be on -loaded, off-loaded from
a truck. So it makes the process a lot more
efficient when you have a truck that counts as
the container. That's the, you know, if you
want to get into the minutia of the gray area
and debate that, that's been going on for a
decade. And that's why I point to the issue of
celerity and why I think it's important to look
at the Goat Hill Tavern decision, and you will
see that nothing remotely like this fact pattern
was presented in that case. In that case, the
court very clearly established that the evidence
was insufficient to revoke the permit and
pointed out that it's an independent judgment
standard of review. And it's because you are
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COSTA MESA PLANNING COMMISSION MEETING 72
implicating a fundamental vested property right.
Thank you.
MR. RIGHEIMER: Thank you. Okay, I'm going
to close the public hearing, and I'll take a
motion or comments from the commission.
Commissioner Mensinger.
MR. MENSINGER: Mr. Chair, I'd like to make
a motion. Based on the evidence in the record
and findings contained in Exhibit A, the
planning commission hereby revokes zoning
application ZA-89-25 and ZA-92-10 with respect
to the property described above.
MR. RIGHEIMER: I have a motion. Do I have
a second?
MALE VOICE: Second for discussion.
MR. RIGHEIMER: I have a motion, a second,
discussion.
MALE VOICE: I have a question for counsel.
The concept of vested right. If 20 years ago we
approved let's say a little coffee shop and it
turned out to be Starbucks 20 years later, I
guess my point is at what point would this stop?
Could it go to 20 million pounds, or because we
have one container and they decide to have 20
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COSTA MESA PLANNING COMMISSION MEETING 73
trucks there continuously pulling it out,
storing it, taking it away? At what point do
vested rights have to be balanced with kind of
what's going on in the neighborhood and kind of
20 years later?
MALE VOICE: Well, an option that you have
before you obviously is a CUP modification to
address the current issue if you believe that
there is a public nuisance there and that it can
be dealt with with additional conditions.
That's how you would deal with it as it goes
forward. But if something doesn't rise to the
level of public nuisance, the vested right is
going to continue. You wouldn't have the
ability to consider a modification or revocation
or anything like that. Except for the other
avenue that was mentioned earlier, if somebody
is continually violating the conditions of
approval, that's really a separate approach.
That's a different issue. I think the first one
is what you're talking about. Does that answer
your question?
MALE VOICE: Yes.
MALE VOICE: The reason why I'm supporting
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Commissioner Mensinger's motion is that rather
than dispute what I see are the opportunity to
dispute some factual representation here, I
don't think they're material. But I agree with
the findings that there is a significant volume
here. And I'm challenged to try and figure out
myself how to modify, and I can't figure out how
to screen or block or relocate where you abut
residential. So I'm not presented with any
modification options here today, and that's why
I'm supporting the motion. Thank you.
MR. MCCARTHY: Mr. Chair.
MR. RIGHEIMER: Commissioner McCarthy.
MR. MCCARTHY: I talked to a lot of the west
side residents that I know about this project,
and they raised their concerns to me. I saw the
problems with this project. My concern of
course, again, is looking through the conditions
of approval from '92. I'm struggling to find
something that I can hang my hat on as far as a
specific violation. That defaults me to the
public nuisance argument. And while I have a
lot of problems with this project, I really,
really do, I think there are a lot of things
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COSTA MESA PLANNING COMMISSION MEETING 75
going wrong, Mr. Garcia, on your project down
there. I think your counsel is looking at this
thing through rose colored glasses, or maybe
they're just portraying that to us. I did go
out there and see this, and I was flabbergasted.
It's the first time that I've lived here that
I've been embarrassed to be in Costa Mesa, to
drive through that shopping center and see
what's going on there. The parking impacts, the
homelessness and vagrancy that we can blame the
soup kitchen all we want, but there are people
carrying cans. So it all falls down on Garcia.
The concern that I have is again that I don't
know at this point that the record contains
enough evidence to find the public nuisance, and
that's what I'm grappling with right now as a
planning commissioner, not as a resident of
Costa Mesa. As a resident of Costa Mesa, the
fact that this is on our urban path right down
19th Street is just, it's shocking to me that we
allow this. But I just don't see enough to go
down that path of public nuisance, which is why
I can't support the motion unfortunately.
MR. CLARK: Mr. Chair.
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COSTA MESA PLANNING COMMISSION MEETING 76
MR. RIGHEIMER: Vice Chair.
MR. CLARK: I'm going to start in one
director. Commissioner Mensinger, and at the
risk of having you go on at length, could you
give me a little better detail of why you
motioned the way you did?
MR. MENSINGER: I'm sorry. What is your
question?
MR. CLARK: Can you explain yourself as to
why you chose that motion? I have no reasoning
from you for the motion. I'm not arguing that
it's a good or bad reasoning. I don't know what
it is.
MR. MENSINGER: Commissioner Clark, it just
goes back, this goes back several months from
contacts and letters from the community, some
folks in the audience and some not in the
audience. I believe that when this use was
approved for a CUP it was an apple, and today
it's an orange. And it doesn't take a genius to
go out there and look at the facility and see
how much volume is being done out of this
location to understand that this is a nuisance.
You know, I'll say this quite often. People are
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COSTA MESA PLANNING COMMISSION MEETING 77
attracted to communities, and we as a city need
to continue to attract new people. And it's
very difficult to do when uses become nuisances.
And clearly this, besides the violations that
have been noted, and besides the findings that
staff has given us eloquently here in one
through seven, this, I would love to see Mr.
Garcia in another location that is not on 19th
Street near all these homes and that affects all
these residents. So I hope that answers your
question.
MR. CLARK: As well as I can expect. This
is a challenging issue. I unfortunately agree
with both commissioners so far, which is not a
good place to be in this. I've been past this
facility on many occasions as well, and although
I'm not sure I echo entirely my embarrassment at
Costa Mesa driving by, I certainly understand
the sentiment. I don't find that the facility
is an asset in looks to Costa Mesa. I think we
have issues there. However, that being said, so
far I have nothing in the record that gives me
the ability to certainly not have a warm and
fuzzy feeling about trying to revoke the
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COSTA MESA PLANNING COMMISSION MEETING 78
permits. We don't have a consistent evidence of
violations of the original CUP. However, the
counsels almost made an argument in favor of
that all by themselves by calling into account
the original CUP that says a one ton truck, and
we obviously have a three ton truck sitting
right in the picture that has consistently been
there. That's not sufficient for me to be a
complete violation at the level that I think is
warranted. We have no code enforcement actions.
I've got nothing to base violations on. And
although I have heard that we have public
comments to the contrary, we certainly do not
have a lot of public comments saying we don't
like the facility. As a matter of fact, we've
got evidence in the record of 500 people signing
that they liked the facility. So unfortunately
I can't go for a public nuisance at that point.
So as much as I would admonish the applicant to
work with staff to clean this up, and I admonish
staff to get code enforcement all over this so
there is actually evidence, I'm going to offer
substitute motion that we receive and file.
MR. RIGHEIMER: I have a motion. Do I have
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COSTA MESA PLANNING COMMISSION MEETING 79
a second.
MALE VOICE: Second for discussion.
MR. CLARK: It's always for discussion.
MR. RIGHEIMER: Is there any discussion to
receive and file.
MALE VOICE: Mr. Chair.
MR. RIGHEIMER: Please.
MALE VOICE: After I listened to both
commissioners communicate that they have
observed issues, you're not going to even
attempt to modify or make any recommendations
or?
MALE VOICE: Mr. Chair, I guess the concern
that I've been grappling with is how do we
modify this to address the concerns that have
been raised to me by the community, the
vagrancy, the noise, the odor, et cetera, that I
have personally seen exist but unfortunately
aren't in the record to the degree that they
should be. And I don't know how to modify that
to ameliorate those. That's the concern that I
have.
MR. CLARK: Mr. Chair.
MR. RIGHEIMER: Commissioner.
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MR. CLARK: Just in answer to Commissioner
Fitzpatrick, and I think it deserves an answer.
I agree with Commissioner McCarthy. We don't
have evidence in the record. My personal
driving by once or twice doesn't constitute
enough record to modify. What am I going to
modify? I don't have evidence in the record
that says this is the problem. What do we do to
fix it? I'm just not seeing that. I don't have
anything that I can work with on that. And
here's what I think happens at this point.
Either the applicant cleans it up because they
work with city officials and it improves, or the
applicant doesn't and code enforcement gives us
a case to work with, and it shows up back here
and we deal with it then. But we've got to have
evidence on the record, and I personally do not
see it.
MR. RIGHEIMER: Let me see if I can get some
evidence on the record here. Can we go to the
staff July 11 report, page 20, the photo? There
are a lot of reasons that people may or may not
like this on the property. I'm not concerned
why they may or may not like it, but like any
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COSTA MESA PLANNING COMMISSION MEETING 81
other project, it has rules to follow by and to
work by in there. I think on the record we have
that over 4.2 million pounds is run through this
operation here. I think if we look on picture
page 20, the picture in here, we're showing, can
you pull that one up at all?
MALE VOICE: You said handwritten page 20?
MR. RIGHEIMER: It's handwritten on the
July. Do you have the photo? Well, I'll
describe the photo for you. It's taken from the
Smart and Final parking lot. It's people with
bags of cans in the Smart and Final parking lot
bringing over to the property. What you've got
here is an operation, an industrial operation
doing 4.2 million pounds that the parking lot
becomes full of people over at Smart and Final.
You cannot do ten pounds of business in a five
pound bag, and they cannot limit the amount of
business and work they do to the area that they
have. And so therefore, they have customers who
come over to the Smart and Final parking lot,
based on this picture and other evidence given
by Smart and Final, to operate here. And
they're not allowed to do that. They also have
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COSTA MESA PLANNING COMMISSION MEETING 82
brought in a three ton truck that does not sit
20 feet back from the front of the property over
in there. Based on how many employees are out
there, I guess we can get into that issue in
here. But the intensity of volume done on this
property is not the issue if it stays on this
property, if it does not stay on this property
when you have customers doing it. Several weeks
ago we had here another recycling property that
came to us. It's different because of the fact
that they were going for a CUP, so there's a
different standard. I understand that point.
But we went through it and said could they do
the business on the property there and not
affect the neighboring properties or the impact
on the street. What we have evidence here for
is that this cannot be contained on this
property here, that over the years based on
Smart and Final's testimony that they use their
parking lot to do it. And in fact, looking at
photos, the parking lot becomes full with this
in here. And so it's the amount of volume,
based on the fact that it goes over the property
line, and they don't have a CUP to go on the
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COSTA MESA PLANNING COMMISSION MEETING 83
neighboring property. And that's why I would
speak against this motion to receive and file
and then go back to the original motion.
MALE VOICE: Mr. Chair.
MR. RIGHEIMER: Commissioner.
MALE VOICE: I'm interested in this
argument. So the argument is that because
they've expanded beyond their original approval
to operate the facility that now they have
violated their '92 conditions of approval for
operating a facility.
MR. RIGHEIMER: Correct. We have evidence
in the record showing that the other property
next door has to be used in order for this to do
the intensity of the 4.2 million pounds a year.
So the motion on here right now is to receive
and file. And vice chair and then --
MALE VOICE: Mr. Chair, I withdraw my second
to the motion to receive and file.
MR. RIGHEIMER: Seeing no second, is there
any other second for the motion to receive and
file. Seeing none, we'll go back to the
original motion. Do you have any more comments
on the original motion.
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COSTA MESA PLANNING COMMISSION MEETING 84
MR. CLARK: All right, Mr. Chair, your
evidence is sufficient in the sense that we've
got not just a truck that's not quite the right
size but literally is spilling over onto another
piece of property which is clearly not part of
the CUP. Now, my quandary at that point is I
would like to, because we have a lot of public
input that supports this facility and the use of
this facility, find a way to modify the
conditions of approval to keep this facility
operational if at all possible. I think it
behooves us to exhaust any possibility of
modification prior to revocation. So that being
said, I mean, it's going to take me a minute to
look at the conditions that are here and if
there are other ones that are, you know, other
commissioners would be interested in, I'm
certainly amenable to talking about that.
MR. RIGHEIMER: Commissioner Mensinaer, and
then Commissioner McCarthy.
MR. MENSINGER: Mr. Chair, I'm not sure if
it's appropriate at this point to grant
Commissioner Clark the time to figure out how to
make modifications to something that's he's
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COSTA MESA PLANNING COMMISSION MEETING 85
already made a motion to receive and file on.
MR. RIGHEIMER: He has the right to do that
as a commissioner.
MR. MCCARTHY: Mr. Chair.
MR. RIGHEIMER: Commissioner McCarthy.
MR. MCCARTHY: So then the basis of your
findings regarding the, for lack of a better
term, expansion outside of their conditions of
approval would be under 1329, the section of
their not adhering to their conditions of
approval versus the public nuisance argument
that's been, you know, we've got the kind of
either, or, or both options as far as the
findings. Then, you would, as far as your
motion is concerned, find the revocation based
on being out of compliance with 1329 of the
municipal code regarding not meeting their
conditions of approval for the expansion of the
operation, correct?
MR. RIGHEIMER: Correct. I'm giving
Commissioner Vice Chair a chance to look over.
MALE VOICE: Mr. Chairman, if I may. I
think the motion on the floor is with the
findings that are in Exhibit A which are the
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COSTA MESA PLANNING COMMISSION MEETING 86
public nuisance, so that's what the motion is
that has been seconded.
MR. RIGHEIMER: So then we have to add in,
we have to modify it or I could make a
substitute motion.
MALE VOICE: Or you can make an amendment to
the motion to add additional findings.
MALE VOICE: Mr. Chair, since I was the
maker of the motion, I'll make the motion that
we allow Commissioner Clark the time to modify
the motion, my motion.
MR. RIGHEIMER: Well, just modify, modify
for --
MALE VOICE: We're not sure what.
MR. RIGHEIMER: No, which one was it again?
13?
MALE VOICE: Mr. Chair, can we take a
recess? Would that be possible? That would be
great.
MR. RIGHEIMER: I will go ahead and take a
recess. Ten minute recess.
[Music]
MR. RIGHEIMER: Okay, we are back. Please
take your seats. At this time we had a motion
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COSTA MESA PLANNING COMMISSION MEETING 87
and a second to revoke. I think adding to that
we had to also add the municipal code section
with regards to a violation of the actual
conditions of the CUP and add a finding. I
scratched this out, and I'm not an attorney, so
help me with this, Mel. Number eight, scale and
intensity. With 4.2 million pounds of the
recycling the center is so large as to spill
over into neighboring properties. Customers
routinely park and unload from 709, Smart and
Final. Go ahead.
MALE VOICE: Yes, we can incorporate that
language into the final findings.
MR. RIGHEIMER: Thank you. Commissioner.
MALE VOICE: Just to be clear, the findings
under A are going to delete reference to the
public nuisance.
MR. RIGHEIMER: Correct.
MALE VOICE: Okay, thank you.
MR. RIGHEIMER: Or amend it to. Leave
nuisance and --
MALE VOICE: [Interposing] My understanding
is you're finding public nuisance and you're
finding a violation of the CUP in that it is
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COSTA MESA PLANNING COMMISSION MEETING 88
expanded beyond the scope of the CUP. It's
both.
MR. RIGHEIMER: Okay.
MR. CLARK: Mr. Chair.
MR. RIGHEIMER: Vice Chair Clark.
MR. CLARK: I have found what I hope will be
an acceptable substitute motion.
MR. RIGHEIMER: Please.
MR. CLARK: Mr. Chair, I'm going to move
that based on the evidence in the record and the
findings contained in Exhibit A, which happens
to be handwritten page eight, the planning
commission hereby revokes ZA-89-25 and modifies
ZA-92-10 with respect to the property above.
Modification to ZA-92-10 is shown in Exhibit B,
which happens to be on page nine, handwritten
page nine. It relates to the clarification that
the minor conditional use permit is an
independent permit not related to any previous
approvals of the recycling facility, and B,
addition of new conditions of approval.
MR. RIGHEIMER: And the additional of the
conditions of approval are?
MR. CLARK: There are on page eight.
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COSTA MESA PLANNING COMMISSION MEETING 89
MR. RIGHEIMER: B.
MR. CLARK: Page eight and I think nine.
Nine and ten, sorry.
MR. RIGHEIMER: I'm seeing page 11 here. Am
I missing something?
MALE VOICE: Page nine and ten.
MR. CLARK: Nine and ten.
MR. RIGHEIMER: Is the findings for
approval. And then the conditions are 11? Oh,
okay. Sorry. Wrong one. Sorry. Do I have a
second? It dies for lack of a second. Back to
the main motion. Any other comments from the
commissioners? Seeing no, we will call for a
question.
FEMALE VOICE: Motion carried, four to one,
Clark voting no.
MR. RIGHEIMER: This item can be appealed to
the city council within seven days, and the next
city council meeting is when, Mr. Conner or Mr.
Corey?
MALE VOICE: The next council meeting is
next Tuesday.
MR. RIGHEIMER: All right. Thank you very
much.
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COSTA MESA PLANNING COMMISSION MEETING 90
MALE VOICE: Mr. Chair, before we move to
the next item, can I make a recommendation that
we put together a team to try and figure out
some additional ways to recycle in this city?
MR. RIGHEIMER: I think if you want to bring
that issue up after this as a completely
separate issue, we can discuss it. Okay, next
item. Corey, help me. I'm lost. Item four.
[END AUGUST 9, 2010 PC ITEM 3 MP31
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C E R T I F I C A T E
I, Kelly Jo Eldredge certify that the foregoing
transcript of the Costa Mesa Planning Commission
Meeting, August 9, 2010 was prepared using standard
electronic transcription equipment and is a true and
accurate record.
Signature:
Date: August 23, 2010