HomeMy WebLinkAbout- - ZA-89-25 & ZA-92-10 (8) - 10/19/2010ATTACHMENT 4
SEPTEMBER 7, 2010 CITY COUNCIL
AGENDA REPORT AND
ATTACHMENTS, INCLUDING
CORRESPONDENCE, PRIOR TO
SEPTEMBER 7, 2010
a63
CITY COUNCIL AGENDA REPORT
MEETING DATE: SEPTEMBER 7, 2010 ITEM NUMBER:
SUBJECT: APPEAL OF REVOCATIONS OF ZONING APPLICATIONS ZA-89-25 AND ZA-92-10
MINOR CONDITIONAL USE PERMITS FOR GARCIA RECYCLING CENTER
739 WEST 19TI STREET
DATE: AUGUST 26, 2010
FROM: DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: MEL LEE, SENIOR PLANNER
KIMBERLY BRANDT, DIRECTOR
FOR FURTHER INFORMATION CONTACT: MEL LEE, (714) 754-5611
mleefti.costa-mesa.cams
RECOMMENDATION:
Continue hearing to the October 5, 2010 Council meeting.
BACKGROUND:
On July 12, 2010 and August 9, 2010, the Planning Commission considered Zoning
Applications ZA-89-25 and ZA-92-10, minor conditional use permits for an existing
neighborhood recycling facility (Garcia Recycling) located in the parking area of a retail
shopping center. The zoning applications were called up for review to the Planning
Commission by Commissioner Mensinger on June 9, 2010. Both zoning applications
were revoked by the Planning Commission on a 4-1 vote (Vice Chair Clark voting no).
On August 16, 2010, the revocations were appealed by the Miles+Chen Law Group, legal
counsel for Garcia Recycling, the business owner (Appeal Form, Attachment 4).
ANALYSIS:
Request for Continuance
One of the arguments raised in the 11 -page appeal letter is that the legal representatives
for Garcia Recycling were not afforded adequate time and opportunity to respond to
concerns.
Planning staff and the City Attorney's office have reviewed the appeal letter. Due to the
detailed legal issues that were raised by the appellant in their August 16th letter, and as
advised by the City Attorney's office, staff is recommending a continuance of this item to
the October 5, 2010 City Council meeting. This should provide the appellant with an
;ao
appropriate amount of.. time (over 30 calendar days) to review and respond to the issues
discussed in this staff report with regard to the appeal.
Responses to Appeal
The appeal application contains an 11 -page letter specifying the basis for the appeal, and
arguments for overturning the Commission's decision to revoke the zoning applications.
The following analysis includes staff responses to these concerns:
1. "Planning staff did not raise the issues [with the use permits were]. due. to.
enforcement problems." "Garcia Recycling was not aware that.,the Commission
was considering revoking its permit on the grounds that its operations violated. a
condition of approval [until August 4,. 2010]." (Pages.I and 2 of appeal): ;
.Two staff reports were prepared for the public hearings dated July 12.,..201.0 and. August
9, 2010 on Garcia Recycling where public nuisance issues and use permit violations were
noted as the basis for concerns with Garcia's Recycling.
th
The first report for the July. .12 ..Planning Commission hearing indicated that the
Commission may, modify_. or revoke a Planning/Zoning Application . if the following
conditions are found to apply:
1, The use constitutes a public nuisance; or
2. The use does not comply with the conditions of approval.
Staff believes there was"sufficient notice to Garcia Recycling and acknowledgement of
the violations of the use permit, dating back to August 3, 2009, when staff sent Garcia
Recycling a letter stating that they were operating in violation of their zoning approvals
(Attachment 7, Correspondence, City of Costa Mesa August 3, 2009). The applicant's
attorney responded in a letter.to staff dated August 19, 2009, that "Garcia Recycling does
not believe that it is in violation of the Minor Conditional Use Permit" and was willing to
comply with the requirements, with exception to the removal of the truck (Attachment 7,
Correspondence, Miles+Chen Law letter dated August 19, 2009).
In the July 12, 2010 staff report, the analysis included . a timeline of code. enforcement
activity and communications with Garcia's Recycling beginning with a site inspection by
code enforcement and Planning staff on July 30, 2009, through June 15, 2010
(Attachment 3),
In addition, the reports indicated that use permit violations and ongoing code enforcement
were major concerns. A significant degree of City staff resources has been devoted to
the investigation of complaints related to the use and ongoing enforcement of noise and
property maintenance issues. The business owner/property owner has failed to rectify
the problems to be in compliance with the minor conditional use permit requirements to
the satisfaction of the City.
2. "The Commissioners deprived Garcia Recycling of due process by making factual
findings and legal conclusions without allowing Garcia Recycling to respond."
(Page 2 of appeal).
During both hearings, the applicant and their legal counsel were provided with an
opportunity to present and rebut information, including but not limited to, the following:
1. A four-page letter with 16 pages of attachments (Attachment 7, Correspondence,
Letter From Miles+Chen Law Group dated July 12, 2010).
2. An eight -page letter with 67 pages of attachments submitted prior to the meeting
and attached to this memo for reference (Attachment 7, Correspondence, Letter
From Miles+Chen Law Group dated August 6, 2010).
3. A 23 -slide PowerPoint presentation with text and photos presented during the
meeting (Attachment 7, Correspondence, Garcia Recycling Center August 9,
2010).
Additionally, in accordance with public hearing procedure, the applicant was given an
opportunity to address the Commission and provide rebuttal of any evidence. The
evidence included site photographs and the detailed timeline of staffs attempts to work
with the operator as noted earlier in this report (see Attachment 3), which was presented
during both hearings.
3. "The Commissioners failed to meet the standards set forth in the Costa Mesa
Municipal Code and State law in revoking Garcia Recycling's (minor) conditional
use permit." (Page 4 of appeal).
The findings contained in the Planning Commission resolution were reviewed by the
Deputy City Attorney as to form and found to be in accordance with State Law, as well as
Municipal Code Section 13-29(o) (Enforcement Authority).
4. "The Commission failed to comply with the California Environmental Quality Act in
revoking Garcia Recycling's (minor) conditional use permit without environmental
review". (Page 8 of appeal).
The revocation action complies with the California Environmental Quality Act (CEQA) as it
is categorically exempt from CEQA pursuant to Section 15321 for Enforcement Actions
by Regulatory Agencies.
5. "The Commissioners violated the Brown Act by deliberating outside the public
meeting." (Page 10 of appeal)
The deliberations by the Commissioners occurred during the public hearing and did not
violate the provisions of the Brown Act.
Updated Code Enforcement Activity
The timeline of events has been updated to include recent code enforcement activity
occurring after the Planning Commission's action to revoke the use permits, as well. as
recent photographs of Garcia's Recycling showing ongoing violations (Attachment 3). .
It: should be noted that, according to a separate memo prepared by Public Services,. no
violation of water quality standards were observed by Public Services staff at the location
(Attachment 7, Correspondence, Memo From Public Services dated August 27, 2010).
Additional Findings for revocation
Should City Council uphold the Planning Commission's revocation of the zoning,
applications, staff recommends the additional findings, which are incorporated into the.
draft resolution attached to this report. -
• Based on the photographic evidence prepared by staff and made part of the public
record:
01, The use is operating off-site (on the adjacent Smart. and Final property). in.
violation of _ZA-89-25and ZA-92-10, which was approved for the .7.39
West 19th Street property (subject site) only.
o The use is in. violation of the following Conditions of Approval of Zoning
Application ZA-92-10, Minor Conditional Use Permit for a recycling center:
(i) Storage of a commercial truck on the property to serve as
additional storage area in lieu of a container is in violation of
Condition of Approval No. 3 for ZA-92-10: "Any and all
containers, with a maximum of two, shall be located at the
northeast corner of the site as shown on the approved plans,
and shall maintain a minimum setback of twenty (20) feet from
the.front property line."
(ii) Materials kept outside the containers .are in violation of
Condition of Approval No. 5 for ZA-92-10: "All materials shall
remain inside the containers."
(iii) Not keeping the area free of debris, in violation of Condition of
Approval. No. 6 for ZA-92-10: "Applicant shall keep the area
surrounding the container(s) free of debris."
Zoning Applications ZA-89-25 and ZA-92-10 are provided in their
entirety as Attachment 2 to this report.
o The use is in violation of the City of Costa Mesa's Municipal Code, Title 20
(Property Maintenance) Standards.
Based on the evidence submitted into the record, the original operation has
significantly expanded beyond the scale and intensity of a neighborhood recycling
facilit and is more comparable to a regional recycling facility. Orange Coast College
is considered a regional recycling facility. Neighborhood recycling facilities in the
surrounding area include Earthwize Recycling and NexCycle.
The processing of approximately 4.2 million pounds of recyclable materials in 2008 at
Garcia Recycling, as indicated in the attachments to the letter from Miles+Chen Law
Group dated July 12, 2010, exceeds the annual 2009 number of the following
recycling facilities:
o Orange Coast College Recycling Center (2701 Fairview Road) - 3.9 million
pounds (source: OCC August 17, 2010).
o EarthWize Recycling (2180 Newport Boulevard) - 496,387 pounds (source:
EarthWize Recycling August 16, 2010).
o NexCycle (185 East 17th Street) - 283,315 pounds (source: NexCycle
August 17, 2010).
ALTERNATIVES
Staff is recommending a minimum 30 -day continuance to the next City Council meeting
on October 5, 2010. This continuance will allow the applicant's attorneys an appropriate
amount of time to review and respond to the staff report.
Should the Council decide to act upon the matter, the following are the alternatives:
1. Uphold the Planning Commission's decision to approve the revocation of Zoning
Applications ZA-89-25 and ZA-92-10, based on the Planning Commissions original
findings and the additional findings included in the attached resolution.
2. Reverse the Planning Commission's decision to revoke Zoning Applications ZA-89-
25 and ZA-92-10.
LEGAL REVIEW:
The City Attorney's office has approved the attached resolutions as to form.
CONCLUSION
The applicant's attorney has expressed concerns regarding insufficient time and
opportunity to respond during the proceedings. As advised by the City Attorney's office,
staff is recommending a minimum 30 -day continuance to the next City Council meeting
on October 5, 2010. Planning Commission's decision to revoke Zoning Applications ZA-
89-25 and ZA-92-10 was based on the evidence in the record presented during the public
hearings, and complies with all applicable City Code and State Law provisions.
400-
ME[LEE, AICP
Senior Planner
®'r -m
KIMBEI IfRANYT, AICP
Develgr t Svs. Director
DISTRIBUTION: City Manager
Asst. City Manager
City Attorney
Acting Asst. Dev. Svs. Director
Public Services Director
Transportation Svs, Mgr,
City Clerk (2)
Staff (4)
Planning Staff (8)
File (2)
Garcia Recycling Centers & Metals Inc.
Attn: Jesus -Garcia
1115 S. Elliot Place
Santa Ana, CA 92704
Russell Pange Trust
1835 Newport Boulevard, #A109
Costa Mesa, CA 92627
Miles+Chen Law Group
Attn: Patricia J. Chen
9911 Irvine Center Drive, Suite 150
Irvine, CA 92618
Steve Chan
720 Center Street
Costa Mesa CA 92628
ATTACHMENTS:
2. ZA-89-25 and ZA-92-10
g. 9848 poolislimfl;FiRmskma 8(6E-ft4*F4 @I dull @8
4. Appeal Form
5. Planning Commission Reports and Resolution
6. Minute Excerpts
7. Correspondence (In Chronological Order to the
Present)
File: 090710ZA8925ZA9210A eal I Date: 082710 Time: 3:00 p.m.
ATTACHMENT 2_
ZA-89-25 AND ZA-92-10
�`1
Application # 'rte- "gf -25'
APPLICATION FOR MINOR CONDITIONAL USE PERMIT/
ADMINISTRATIVE ADJUSTMENT
Part One
Address/Location of Request ��5 UJ I? 4-h
Name of Property Owner1 k CU.: (. i~ Po- nC4 Phone
Address of Property Owner
*,,Property Owner Signature
Name of Authorized Agent
"M
Address of Authorized Agent la .>rtr�sa�juce
Authorized Agent Signature
f
Part Two (Office. Use Only)
Date
Phone .��� -' 29CX0
Date
Date Application Received I0�ILe t �Cf By
Date Application Accepted as Complete
Negative Declaration
Minor Conditional Use Permit —I —
Administrative Adjustment
Request: Minor Conditional Use
Permit for a mobile recycling cent
at an existing commercial center.
Part Three (Office Use Only)
FEE
$ (01 31 1 901 06)
0 (01 31 1 1 0009)
(01 31 1 1 0009)
Total Fee $
By
G. P. 1 COM rYt
Zone
AP#
14a 4 -a ba -01
R eC.d 11)/1 (S I sci
0- qc'-/-tio 7
ACTION
❑ Denied (See attached Findings)
Approved, subject to Findings and Conditions of Approval (attached)
By_ -0'-ZD
t,L,(.L&YU0 - 4 C -r tLe-vv Date t 1b) ZIS
Notice of Decision to Planning Commission and City Council Date%lam
Appeal Period Expires Date
�a� rmmv
1654.90 [White] Planning; [Canary) Applicant; )Pink) Finance; [Goldenrod) Autho,— Agent a`�
APPLICATION # ZA-89-25
The application referenced above has been approved by the Zoning
Administrator based on the Findings and Conditions of -Approval
listed below.
'FINDINGS
17XMinor Conditional Use Permit
1, The information presented substantially complies with
Section 13-347 of the Costa Mesa Municipal Code in that:
a. The proposed development or use is substantially
compatible with developments in the same general
area .and would _not be materially.. detrimental. to -.
other properties within the area.
b.. The,. granting. of. the Conditional Use Permit will not
be materially detrimental to the health, safety and
generalwelfare of the public or otherwise injurious '
to property or, improvements within the immediate
neighborhood.
C. The granting of the Conditional Use Permit will not
allow a use, density, or intensity which is not in
accordance with the General Plan designation for
the property.
d. The project is consistent with Article 22-1/2,
Transportation Systems Management of the Costa Mesa
Municipal Code in that no intersection to which the
project contributes measurable traffic shall operate
at less.than the Standard Level of Service as a
result of project implementation.
CONDITIONS OF APPROVAL
The project shall meet all requirements of the following City
Departments:
Ping. 1. Approval shall be for a period of one (1) year. Prior
to expiration, applicant may request renewal, subject
to reevaluation at that time. The Development Services
Director may extend the Planning Action for a period
not to exceed two (2) years if all conditions of
approval have been satisfied, no complaints have been
received, and the site inspection reveals compliance
with applicable Ordinance requirements. Thereafter,
the Development Services Director may extend the permit
for successive two (2) year periods under the same
terms.
VD)
2. Approval of a modified Minor Conditional Use Permit is
required prior to expansion of the business.
ORDINANCE OR CODE PROVISIONS
The following list of Federal, State and local laws applicable to
the project has been compiled by Staff for the applicant's
reference:
P1ng. 1. Permits shall be obtained for all signs according to
the provisions of the Costa Mesa Sign Ordinance.
Bldg. 2. Comply with the requirements of the Uniform Building
Code as to design and construction.
SPECIAL DISTRICT REQUIREMENTS
The requirement of the following special district is hereby
forwarded to the applicant:
Sani, 1. Applicant to contact the Costa Mesa Sanitary District
at 754-5043 prior to beginning recycling program.
- - - Costa. Mesa Sanitary_ District has jurisdiction over
materials left at the curb side in resident.ia°--
neighborhoods.
If you have questions, please call Willa Bouwens -Killeen at
754-5153 between 11:00 a.m. and 2:00 p.m.
(ZA8925)
v air
City of Costa Mesa Planning Division
Post Office Box 1200
tml
77 Fair Drive
Costs Mesa, C
mmoufflo (714) 54.5245A 92628.1200
PRELIMINARY ENVIRONMENTAL DESCRIPTION
For Office Use Only: p
Project Number 7 — � J Date Received/By 10/I�
Zone General Plan Designation--:
Recommendation: C�Z Exempt ❑ Negative Declaration ❑ El
0
Applications for projects in the City of Costa Mesa cannot be processed until an initial study of environmental impacts has
been completed and an exemption granted or a Negative Declaration or Environmental Impact Report prepared.
Please fill out the following and return (with preliminary site plans, Including location and size of all existing structures .
and trees) _five ,(5) working days prior to submitting your application:
Location of Project 732
Co C,4 rt ri
Description of Project
f�lJ & %(QC
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Cal 16,30,41q
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Sud IU.;Su .at{ 4o .S,' P.K
Su'i4- 00sed
Submitted by
Mailing
Date
/SDS' I_s �� ci r- Phone C71y�) -76"1 7 ?b6
Zip Code—!2,2 0!
Not all projects will necessitate the preparation of an Environmental Impact Report. In order to make a determination as to
whether any significant environmental impacts may result from the proposed project, the above information is necessary.
As soon as possible, the Environmental Evaluator will determine whether or not the project will require an Environmenta,
Impact Report and will notify the project sponsor accordingly:.
CMF 0325.30 Rev. BI05
CITY OF COSTA XESA
77 Fair Drivs
costa Xesa, California 92626
(714) 754-5245
PROJECT DESCRIPTION/JUSTIFICATION
(1) project Location Z3 / �,
S�) Describe Project and Request (S) G;'���I r --rcC;i�'G/LrU �f
I
)-Lc CJLP E>,
4 -� a c e� r c7��� � I elf �de�.e•�" - dip U 5 lu :, h - l�u.rs'
If application is for Variance(s) or Administrative
Adjustment(s), answer the following: Describe the property's
special circumstances, including size, shape, topography,
location or surroundings, that justify the variance or
Administrative Adjustment request in that strict application
of the Zoning. ordinance deprives the property of privileges
enjoyed by others in the vicinity under identical zoning
classification.
4P1ROJDESC.FtM)
ark
1030 5U0
--(3)
If application is for
Conditional Use Perznit(s) or Minor
Conditional Use Permit (s)
, answer the following: Describe how
the proposed use is
substantially compatible with uses
V
}
permitted in -the- same
generalarea and how_ the proposed _use ,
would not,be materially
detrimental to other properties within
the same area.
I
)-Lc CJLP E>,
4 -� a c e� r c7��� � I elf �de�.e•�" - dip U 5 lu :, h - l�u.rs'
If application is for Variance(s) or Administrative
Adjustment(s), answer the following: Describe the property's
special circumstances, including size, shape, topography,
location or surroundings, that justify the variance or
Administrative Adjustment request in that strict application
of the Zoning. ordinance deprives the property of privileges
enjoyed by others in the vicinity under identical zoning
classification.
4P1ROJDESC.FtM)
ark
1030 5U0
Application # o7A _67 Z ! C
APPLICATION FOR MINOR CONDITIONAL USE PERMIT/
ADMINISTRATIVE ADJUSTMENT
Part One
Andress/Location of Request?35' W !LzA �s4- LA 92a x7
Name of Property Owner e'"AJ Phoney%
Address of Property Owner
Property Owner Signature
'-32-Date t T 'x. U ,
Name of Authorized Agent Phone __ 9f(Z. 2,,`/ 7007 G
Address of Authorized gent 1S-�S
Authorized Agent Signature -01 Date cf'- -21D �- Ps -
Pati Two_ - __ (Office -Use- Only)_-
Date Application Received By
� -�
Date Application Accepted as Complete
By
FEE
Negative Declaration $ (01 31 1 901 06) G.P. A6n 60YY1 YY!
Minor Conditional Use Permit I f L -E (01 31 1 1 0009) Zone j
Administrative Adjustment (01311100p9) . AP#
ex
Request ; Minor Conditional Use Total Fee $ �� (.�1� f ` ���x -0
Permit for the relocation and expan
of an existing recycling center (to -9I o Y .(fd �r� jle1
be located behind the El Toro Bravo Ma4.�,c.et),�, FxaM:Pt•
REVISED
Minor Conditional Use Permit for the expansion of an existing recycling center, with
Oft Thi@8&ati R 6AeoWking area within the front parking lot.
ACTION
❑ Denied (See attached Findings)
A proved, subject to Findings and Conditions of Approval (attached)
By Date _ f Z - / 92 -
Notice of Decision to Planning Commission and City Council Date
Appeal Period Expires Date9Z-
1654.30 [White( Planning; (Canary( Applicant; (Plnlsj Finance; (Goldenrod] Authorized Agent �\
DATE: November 30, 1992
APPLICATION # ZA-92-10
ADDRESS: 739 W. 19th Street
The application referenced above .has been approved by the Zoning
Administrator based on the Findings and Conditions of Approval and
Ordinance/C.ode Provisions listed below.
FINDINGS
RX
Minor Conditional Use Permit
1. The information presented substantially complies with
Section 13--347 of the Costa Mesa Municipal Code in that:
a. The proposed use is substantially compatible with
developments in the same general area and would not
be materially detrimental to other properties
within the area.
b. The granting of the Conditional Use Permit will:no.t
be materially_ detrimental to the health,_ safety and'^
general welfare of the public or otherwise
injurious to property or improvements within the
immediate neighborhood, due to the separation .of
the use from the residences to the south by an
existing commercial building.
C. The granting of the Conditional Use Permit will not
allow a use, density, or intensity which is not in
accordance with the General Plan designation for
the property.
CONDITIONS OF APPROVAL
The project shall meet all requirements of the following City
Departments;
Ping. 1. The Conditional Use Permit herein approved shall be
valid until revoked, but shall expire upon
discontinuance of the activity authorized hereby
for a period of 180 days or more. The Conditional
Use Permit may be referred to the Planning
Commission for modification or revocation at any
time if the Conditions of Approval have not been
complied with, if the use is being operated in
violation of applicable laws or ordinances, or if,
in the opinion of the Development Services Director
or his designee, any of the findings upon which the
approval was based are no longer applicable.
2. Any further expansion or relocation of the business
first requires approval of a Minor Conditional Use
Permit.
3. Any and all containers, with a maximum of two,
shall be located at the northeast corner of the
site as shown on the approved plans, and shall
maintain a minimum setback of twenty (20) feet from
the front property line.
4. The business shall not operate between 8:00 p.m.
and 8:00 a.m.
5. All materials shall remain inside the containers.
6. Applicant shall keep the area surrounding the
container(s) free of debris.
7. signs shall be limited to identifying recycling
business only and painted or attached only to the
container(s).
ORDINANCE OR CODE PROVISIONS
The following list of Federal, State and local laws applicable to
the project has been compiled by Staff for the applicant's
reference:
Bldg. 1. Comply with the requirements of the Uniform
Building Code as to design and construction.
Fire 2. Center may not encroach on required width of drive
for emergency access.
SPECIAL DISTRICT REQUIREMENTS
The requirement of the following special district is hereby
forwarded to the applicant:
Sani. 1. Developer to contact the Costa Mesa Sanitary
District at (714) 631-1731 for current District
requirements.
APPEAL
If your case is denied by the Zoning Administrator or if you are in
disagreement with the Conditions of Approval, you may appeal the
decision to the Planning Commission. You must submit an appeal
request (form available in the office of the City Clerk or
Development Services Department at City Hall). The request must be
returned to the Planning Division within seven (7) days of the
Notice of Decision of the Zoning Administrator's decision. Any
decision of the Planning Commission can similarly be appealed (with
a fee) within seven (7) days to the City Council. While the City
_.J20
Council decision is final, a request for a rehearing before the
council may be filed with the City clerk within seven (7) days of
the original City Council decision for consideration of any new
evidence not known by Council at the tine of their hearing.
if you have questions, please call Willa Bouwens -Killeen at 754-
5153 between 8:00 a.m. and Noon.
(ZA9210)A2
- laal
City of Costa Mesa . nning Division
Post Office Box 1200
5H$
77 Fair Drive
Csta Mesa, OQ U (714) 754-5245 A 92628-1200
PRELIMINARY ENVIRONMENTAL DESCRIPTION
For Office Use Only:
Project Number 7A -9Z- I t7 Date Received/By
Zone
Recommendation: 0' Exempt
General Plan Designation
1II✓1 IRZ `U -3k
❑ Negative Declaration ❑ EIR
Applications for projects in the City of Costa Mesa cannot be processed until an initial study of environmental impacts has
been completed and an exemption granted or a Negative Declaration or Environmental Impact Report prepared.
Please fill out the following and return (with preliminary site plans, including location and size of all existing structures
and trees) five (5) working days prior to submitting your application:
Location of Project 7 32
esct ;ZG 2-7
112
bescription of Project _ /'I AJ f� s /22 �c Ct 'Iyq_ i 1 P ��t. Jttt t:o e
%U f/r.. -/XP G6e-a.i G."d rYe-C, F -o n,- ff,vt.r '74(Pe,
1 cu �/• � /E/o N 9Y; d �t 4o S3? � PA(
In 6l G Q (/ .6 A i t C _ i 11,1./
AH -(�, S_,00 Pbl
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Sv ey ao
Submitted by Date
Mailing dress 30 S ICADw�1 ce 42Y Phone 79,OL
Ci a �.Lct rzA- Zip Code [S
Not all projects will necessitate the preparation of an Environmental Impact Report. In order to make a determination as to
whether any significant environmental 'impacts may result from the proposed project, the above information is necessary.
>Xs soon as possible, the Environmental Evaluator will determine whether or not the project will require an Environmental
Impact Report and will notify the project sponsor accordingly.
CMF 0325.30 Rev. OID5 '���
1 _ _ ATTACHMENT 4M
APPEAL FOR
ga'A
CITY OF COSTA MESA v ' '
P. 0. Box 1200 GITY CLE R , '
Costa Mesa, CA 92628-1200 FEE: $;
07
APPLICATION FOR REVIEW, APPEAL 011� ARING
Applicant Name
Address
Phone Representing*
REQUEST FOR: Ej REVIEW" T.APPEAL ' REHEARING
Decision of which review, appeal or rehee firing is requested: (give number of rezone, zone exception, ordinance, etc., if applicable, and
the date of the decision, if known.) _ t AJ -W-9 {"i--Zx b�— _ZvlAi A al�'Im� i /n �i'i A✓I £ � A — $ i Z
0Atd_ Z A- -q 2- I Pic,iti,
1nRtut��'.�
^1 Decision by:�-w1
C OALA �l� Reasons for requesting review, appeal or reheadng:
Date: '6 15 L-0
Signature:
For office use only- do not write below this line
SCHEDULED FOR THE CITY COUNCILIPLANNING COMMISSION MEETING -OF:
If review, appeal or rehearing is for person or body other than City Council/Planning
Commission, date of hearing of review, appeal or rehearing:
* If you are serving as the agent for another person, please Identify the person you represent and provide proof of agency,
" Review may be requested only by City Council or City Council Member
Costa Mesa/Formsl/Application for Review -Appeal -Rehearing
d7
I STEPHEN M. MILES (State Bar No. 185596)
PATRICIA J. CHEN (State Bar No. 197719)
2 MILES • CHEN LAW GROUP
A Professional Corporation
3 9911 Irvine Center Drive; Suite 150.
Irvine, California 92618
4 Telephone: (949) 788-1425
Facsimile: (949) 788-1991
"5
6 Attorney for Garcia Recycling Center
BEFORE THE CITY COUNCIL OF THE CITY OF COSTA MESA
In. the matter of
Revocation of Zoning ApplicationsAPPLICATION FOR APPEAL
`ZA-89-25 and ZA-92-10 by City of
Costa Mesa Planning Commission
Date of decision: August 9, 2010
Pursuant to Section 2-303 of the Costa Mesa Municipal Code, Applicant Garcia Recycling
Center ("Garcia Recycling") hereby appeals the decision of the City of Costa Mesa Planning
Commission to revoke Garcia's minor conditional use permits.
I. Procedural Background
On or about June 9, 2010, Commissioner Mesinger called up for review to the Planning
Commission,Garcia Recycling's minor conditional use permits to consider modification or
revocation of the permits for "an existing neighborhood recycling facility (Garcia Recycling)
located in the parking area of a retail shopping center." See Plarming Commission Agenda
Reports dated July 12, 2010 and July 28, 2010. The City's Planning Staff did not raise the issue
of Garcia Recycling's conditional use permits with the Planning Commission due to enforcement
problems. Garcia Recycling received notice of the hearing scheduled for July 12, 2010 on or
about July 1, 2010 and received the Planning Commission Agenda Report on or about July 6,
APPLICATION FOR APPEAL
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BEFORE THE CITY COUNCIL OF THE CITY OF COSTA MESA
In. the matter of
Revocation of Zoning ApplicationsAPPLICATION FOR APPEAL
`ZA-89-25 and ZA-92-10 by City of
Costa Mesa Planning Commission
Date of decision: August 9, 2010
Pursuant to Section 2-303 of the Costa Mesa Municipal Code, Applicant Garcia Recycling
Center ("Garcia Recycling") hereby appeals the decision of the City of Costa Mesa Planning
Commission to revoke Garcia's minor conditional use permits.
I. Procedural Background
On or about June 9, 2010, Commissioner Mesinger called up for review to the Planning
Commission,Garcia Recycling's minor conditional use permits to consider modification or
revocation of the permits for "an existing neighborhood recycling facility (Garcia Recycling)
located in the parking area of a retail shopping center." See Plarming Commission Agenda
Reports dated July 12, 2010 and July 28, 2010. The City's Planning Staff did not raise the issue
of Garcia Recycling's conditional use permits with the Planning Commission due to enforcement
problems. Garcia Recycling received notice of the hearing scheduled for July 12, 2010 on or
about July 1, 2010 and received the Planning Commission Agenda Report on or about July 6,
APPLICATION FOR APPEAL
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2010. Because of the short time frame and the gravity of the matter, Garcia Recycling requested
a continuance of the hearing which was granted by the Commission at the hearing on July 12,
2010. The hearing was continued to August 9, 2010, where the Planning Commission voted to
revoke Garcia Recycling's permit.
H. Garcia Recycline Center
Garcia Recycling has been in business for over 20 years and it operates four recycling
collection centers in the cities of Garden Grove, Santa Ana, and Costa Mesa. Garcia Recycling
owns and operates the recycling center located in the parking lot of a retail shopping center at 739
West 19th Street in Costa Mesa, which is the subject of this proceeding. The Planning
Commission's decision on August 9, 2010 to revoke Garcia Recycling's minor conditional use
permits directly impacts Garcia Recycling's ability to operate this facility.
III. Reasons for Appeal
A. The Commissioner's Deprived Garcia Recycling of Due Process by Making
Factual Findings and Legal Conclusions Without Allowing Garcia Recycling
to Respond
On or about July 28, 2010, Costa Mesa Planning Staff ("Staff") issued a Planning
Commission Agenda Report ("July 28t` Report") which proposed the following findings in the
resolution revoking Garcia Recycling's conditional use permit:
"Revocation of ZA-89-25 and Z4-92-10 was initiated because the operation of
the use was determined to be a public nuisance pursuant to Municipal Code
Section 13-29(o) (Enforcement Authority). Specifically, the use is not being
operated in a manner deemed to be compatible with surrounding properties and
uses, the use creates a negative visual impact due to excessive signage and lack of
property maintenance, a significant degree of City staff resources has been
devoted to the use as a result of complaints related to the use and continual
enforcement of noise and property maintenance issues, and issues related to noise,
odors, transients, property maintenance, etc. do not appear to be prevalent at other
recycling facilities in the City as they are at this location. Modifications to ZA-
89-25 and ZA-92-10 are not sufficient to address the adverse impacts to
surrounding properties. Revocation will require cessation of the current use and a
similar use cannot be, established in the future unless a new Zoning Application is
submitted and approved."
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July 28t" Report at 12 (emphasis added). As such; Garcia Recycling understood that the Planning
Commission was contemplating revoking its permit on the grounds that its operations may
considered a nuisance by the City.
At the hearing on August 9, 2010, however, Garcia Recycling received for the first time
another draft resolution, attached to :a City of Costa Mesa Inter Office Memorandum dated August
. 4, 2010'(August 4th Resolution) indicating additional findings including "[t]he use.is riot being
..operated incompliance with. the conditions of approval for ZA-89-25 and ZA-92=10:" Because
Garcia Recycling was not aware that the ;Commission was considering.revoking-its permit on the...,
grounds that its operations violated a condition of approval, Garcia .Recycling only presented .
evidence refuting the nuisance claim.
Even if Garcia.Recycling had.the opportunity to respond to the argument that it was, in
violation of certain conditions of approval, it would not have been.. able to intelligibly respond
since at no tame, either prior to or during the hearing, did -the Commission ever idents which
conditions) .of approval Garcia Recycling violated: Indeed, during the hearing, after admitting
that there were insufficient facts to find a nuisance, the Commission took a deliberate recess after
which Commissioner Righeimer put up a picture. of Garcia Recycling (which may have been
taken -in the Fall of last year) and pronounced that the picture demonstrated that Garcia Recycling
,encroached on the neighboring property and therefore was in violation of its permit.' On this
flimsy ground, the Commission voted to revoke the conditional use permit.
Garcia Recycling should have been afforded the opportunity to respond to this new theory
of revocation which was developed by the Commissioners on the fly — after the close of public
comment. Failing to allow Garcia Recycling to meaningfully respond to whether it had violated
any condition of approval of its permits resulted in a breach of due process.
1 We are in the process of obtaining the DVD and transcript of the hearing. Once we receive these items, we will
submit a memorandum of points and authorities in support of this appeal along with all supporting documentation.
Garcia Recycling reserves to right to raise any and all issues related to the hearings and zoning applications at issue.
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July 28t" Report at 12 (emphasis added). As such; Garcia Recycling understood that the Planning
Commission was contemplating revoking its permit on the grounds that its operations may
considered a nuisance by the City.
At the hearing on August 9, 2010, however, Garcia Recycling received for the first time
another draft resolution, attached to :a City of Costa Mesa Inter Office Memorandum dated August
. 4, 2010'(August 4th Resolution) indicating additional findings including "[t]he use.is riot being
..operated incompliance with. the conditions of approval for ZA-89-25 and ZA-92=10:" Because
Garcia Recycling was not aware that the ;Commission was considering.revoking-its permit on the...,
grounds that its operations violated a condition of approval, Garcia .Recycling only presented .
evidence refuting the nuisance claim.
Even if Garcia.Recycling had.the opportunity to respond to the argument that it was, in
violation of certain conditions of approval, it would not have been.. able to intelligibly respond
since at no tame, either prior to or during the hearing, did -the Commission ever idents which
conditions) .of approval Garcia Recycling violated: Indeed, during the hearing, after admitting
that there were insufficient facts to find a nuisance, the Commission took a deliberate recess after
which Commissioner Righeimer put up a picture. of Garcia Recycling (which may have been
taken -in the Fall of last year) and pronounced that the picture demonstrated that Garcia Recycling
,encroached on the neighboring property and therefore was in violation of its permit.' On this
flimsy ground, the Commission voted to revoke the conditional use permit.
Garcia Recycling should have been afforded the opportunity to respond to this new theory
of revocation which was developed by the Commissioners on the fly — after the close of public
comment. Failing to allow Garcia Recycling to meaningfully respond to whether it had violated
any condition of approval of its permits resulted in a breach of due process.
1 We are in the process of obtaining the DVD and transcript of the hearing. Once we receive these items, we will
submit a memorandum of points and authorities in support of this appeal along with all supporting documentation.
Garcia Recycling reserves to right to raise any and all issues related to the hearings and zoning applications at issue.
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B. The Commissioners Failed to Meet the Standards Set Forth by the Costa.
Mesa Municipal Code and State Law in Revoking Garcia Recycling's
ConditionaI Use Permit
The seminal decision on revocation and modification of use permits ironically
involved the City of Costa Mesa - Goat Hill Tavern v. City of Costa Mesa, 6 Cal.App.4th
1519 (1992). This decision involved complaints from residents abutting the parking lot of
the bar about noise, trash, and drunken behavior during late hours of operation. Id. at
1524. The Court of Appeal held that a use permit, once issued, becomes a fundamental
vested right that cannot be impaired absent a showing of either a failure by the permittee
to comply with the reasonable conditions of the permit or a compelling public necessity.
(Id. at 1530.)
"Once a use permit has been properly issued the power of a municipality to
revoke it is limited. Of course, _if the permittee does nothing beyond-
obtaining
eyondobtaining the permit it may be revoked. Where a permit has been properly
obtained and in reliance thereon the permittee has incurred material
expense, he acquires a vested property right to the protection of which he is
entitled."
Id Furthermore,
"When a permittee has acquired such a vested right it may be revoked if
the permittee fails to comply with reasonable terms or conditions expressed
in the permit granted [citations] or if there is a compelling public necessity.
[Citations.] [P] A compelling public necessity warranting the revocation of
a use permit for a lawfal business may exist were the conduct of that
business constitutes a nuisance."
Id. (quoting O'Hagen v. Bd. Of Zoning Adjustment, 19 Cal.App.3d 151,158
(1971)).
According to the Costa Mesa Municipal Code ("CMMC"):
"the planning commission may require the modification or revocation of
any planning application and/or pursue other legal remedies as may be
deemed appropriate by the city attorney, if the planning commission finds
that the use as operated or maintained:
a. Constitutes a public nuisance as defined in State Civil Code
Sections 3479 and 3480; or
b. Does not comply with the conditions of approval."
CMMC § 13-29(o)(1). California Civil Code Section 3479 states:
"Anything which is injurious to health, including, but not limited to, the
illegal'sale of controlled substances, or is indecent or offensive to the
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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 manner, 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 time an entire
community or neighborhood, or any considerable number of persons,
although the'extent of the annoyance or damage inflicted upon individuals
may be unequal."
In the present case,. -the conditional use permit is a fundamental vested right held by
Garcia Recycling. There is no dispute that the permit was properly issued by the City and Garcia:
Recycling has relied on this permit for its 20 years of operation. As such, the.power..of the City
to revoke this permit -is limited. See Goat Hill Tavern, 6 Cal.App.4th at 1530. As the Deputy.
City Attorney acknowledged during the August 9' hearing; the standard for revoking an existing
permit is much higher than that of denying'a conditional use -permit application. Nevertheless,
the Commission completely ignored this heightened standard by making false -findings of:fact on
the fly in order to justify its predetermined decision, i.e., revocation of Garcia Recycling's
conditional use permits.
The transcripts of both the July 12th and August 9th hearings will clearly reflect a few of
the Commissioner's feelings towards Garcia Recycling and how they simply don't -like the
"look" of the facility, or how they are "embarrassed" by the appearance of the facility. Notably,
they never articulate what it is about the facility that is so offensive. Perhaps it is because
Garcia Recycling and the shopping center cater to the Latino community and they simply -do not
like the; "look" of these hardworking individuals who collect beverage containers to supplement
their income.
1. The Commissioners Failed to Identify Which Condition of Approval the
Garcia Recycling Violated
During the hearing, after the close of public comment, the Commissioners amended the
August O' Resolution by adding the following finding which Commissioner Righeimer
developed after a recess:
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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 manner, 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 time an entire
community or neighborhood, or any considerable number of persons,
although the'extent of the annoyance or damage inflicted upon individuals
may be unequal."
In the present case,. -the conditional use permit is a fundamental vested right held by
Garcia Recycling. There is no dispute that the permit was properly issued by the City and Garcia:
Recycling has relied on this permit for its 20 years of operation. As such, the.power..of the City
to revoke this permit -is limited. See Goat Hill Tavern, 6 Cal.App.4th at 1530. As the Deputy.
City Attorney acknowledged during the August 9' hearing; the standard for revoking an existing
permit is much higher than that of denying'a conditional use -permit application. Nevertheless,
the Commission completely ignored this heightened standard by making false -findings of:fact on
the fly in order to justify its predetermined decision, i.e., revocation of Garcia Recycling's
conditional use permits.
The transcripts of both the July 12th and August 9th hearings will clearly reflect a few of
the Commissioner's feelings towards Garcia Recycling and how they simply don't -like the
"look" of the facility, or how they are "embarrassed" by the appearance of the facility. Notably,
they never articulate what it is about the facility that is so offensive. Perhaps it is because
Garcia Recycling and the shopping center cater to the Latino community and they simply -do not
like the; "look" of these hardworking individuals who collect beverage containers to supplement
their income.
1. The Commissioners Failed to Identify Which Condition of Approval the
Garcia Recycling Violated
During the hearing, after the close of public comment, the Commissioners amended the
August O' Resolution by adding the following finding which Commissioner Righeimer
developed after a recess:
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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 manner, 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 time an entire
community or neighborhood, or any considerable number of persons,
although the'extent of the annoyance or damage inflicted upon individuals
may be unequal."
In the present case,. -the conditional use permit is a fundamental vested right held by
Garcia Recycling. There is no dispute that the permit was properly issued by the City and Garcia:
Recycling has relied on this permit for its 20 years of operation. As such, the.power..of the City
to revoke this permit -is limited. See Goat Hill Tavern, 6 Cal.App.4th at 1530. As the Deputy.
City Attorney acknowledged during the August 9' hearing; the standard for revoking an existing
permit is much higher than that of denying'a conditional use -permit application. Nevertheless,
the Commission completely ignored this heightened standard by making false -findings of:fact on
the fly in order to justify its predetermined decision, i.e., revocation of Garcia Recycling's
conditional use permits.
The transcripts of both the July 12th and August 9th hearings will clearly reflect a few of
the Commissioner's feelings towards Garcia Recycling and how they simply don't -like the
"look" of the facility, or how they are "embarrassed" by the appearance of the facility. Notably,
they never articulate what it is about the facility that is so offensive. Perhaps it is because
Garcia Recycling and the shopping center cater to the Latino community and they simply -do not
like the; "look" of these hardworking individuals who collect beverage containers to supplement
their income.
1. The Commissioners Failed to Identify Which Condition of Approval the
Garcia Recycling Violated
During the hearing, after the close of public comment, the Commissioners amended the
August O' Resolution by adding the following finding which Commissioner Righeimer
developed after a recess:
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"The use is not being operated in compliance with the conditions of approval for
ZA-89-25 and ZA-92-10 in that the original approval was for a neighborhood
recycling facility approved to operate within the parking area for the 839 W. 19t"
Street property. Based on the evidence submitted into the record, the original
operation has expanded to the scale and intensity of a regional recycling facility,
processing approximately 4.2 million pounds of recyclable materials annually.
This expansion has resulted in a scale and intensity of use beyond the boundaries
of the subject property, requiring the use of the parking area for the adjacent 709
W. 191h Street property for the unloading of recyclable materials by customers."
First of all, this finding fails to set forth which specific conditions of approval. are being
violated by Garcia Recycling. Furthermore, the finding is completely flawed as follows:
• There is no reference to a "neighborhood recycling facility" in either permits (nor
is it clear what a "regional recycling facility" is);
• There is no evidence in the record of what the volume of recyclable materials
processed -in 1992 after Permit ZA=92=10 "for the relocation and -expansion -of an
existing recycling center" was issued by the City. Thus, how could the
Commission conclude that there was in fact an expansion of the scale and
intensity of the property?; .
To conclude that use of the adjacent parking lot means the "expansion has resulted
in a scale and intensity of use beyond the boundaries," is wholly unsupported by
the record. Garcia Recycling clearly stated that Smart &Final customers also use
its adjacent parking lot.— the issue is one of convenience. Applying the same
logic, Smart & Final would be in violation of conditional use permit as well.
Therefore, the Commission erred in finding that Garcia Recycling violated its conditions
of approval and the City Council should overturn its decision.
2. The Commissioners Failed to Establish AU Nuisance
As acknowledged by a few of the commissioners, the record does not support a nuisance
determination. There is no record of code violations, police records, or anything remotely
supportive of a nuisance.
First of all, the City's findings on their face do not meet the definition of a nuisance as set
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forth in Civil Code Section 3479 and 3480. Garcia's Recychng's operations are not injurious to
health, it is not an obstruction to the free use of property, nor does it affect an entire community
or neighborhood. The purported negative visual impact is based on "excessive signage and lack
of property maintenance" which hardly arises to the level of being "indecent or offensive to the
senses," particularly where a vested interest is at stake.
Aside from the letter petition signed by approximately 35 people citing that the facility's
presence "[b]ring (sic) intransients; drunkard asleep all around, urinating, trash, . ,.odors,.unkept
(sic) areas, unnecessary noise," there is little in the record to support the City's -findings. As far as,
we can tell, there are only two .documented complaints in the last year or so, both citing excessive
noise. The City of Costa Mesa, Development Services Department investigated one of the,
complaints and -visited Garcia Recycling seven times and noted "NO VIOLATION OBSERVED"
each time and -closed the case on July 1-7, 2009; Cdntrast the significant evidence of complaints
that was preseried by the Cityin Loaf HIT Tavern where the court still' found that the City's
decision to deny renewal of applicant's permit was not supported by the evidence. See Goat Hill
Tavern, 6 CalApp.4th at 1525.
As to the transients cited by the City, the City has made no showing to distinguish
complaints about Garcia Recycling from other possible causes such as the liquor store and soup
kitchen across the street from the shopping center. See Goat Hill Tavern, 6 Cal.App.4th at 1531.
Thus, pursuant to Goat Hill Tavern, the City simply has failed to meet its burden to show how
revocation is justified.
'3. The Commissioners Failed to Address the Plethora of Evidence Supplied
by Garcia Recycling Refuting AU Potential Nuisance Finding
In contrast to the City's anemic evidence of nuisance, Garcia Recycling submitted the .
11 following evidence:
• recent pictures of the facility showing that the signage is small and unoffensive
and the entire operation is barely visible from the street.
• Pictures of the soup kitchen across the street which serves the homeless
• Letter from the businesses most directly impacted by Garcia Recycling's
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operations, the business owners in the shopping center, who opined that they do
not find Garcia Recycling's operation to be offensive.
• Letter from Victor Bonilla, part owner of the shopping center and property
manager, indicating that he has not received any complaints about Garcia
Recycling.
• Public outreach to community members to ascertain the basis of the purported
complaints against Garcia Recycling
• Public outreach to those individuals who signed the complaint petition to which
Garcia Recycling received no response.
• Petition with over 500 signatures in support of Garcia Recycling by the
community members who frequent the shopping center and Garcia Recycling.
The Commission completely failed to address this evidence in making its nuisance
determination.
C. The Commission Failed to Comply with the California Environmental
Quality Act in Revoking Garcia Recycling's Conditional Use ]Permit Without
Environmental Review
The California Environmental Quality Act ("CEQA") defines a "project" as "an activity
which may cause either a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment." Pub. Res. Code § 21065. The CEQA Guidelines
further define a "project" as "the whole of an action, which has a potential for resulting in either a
direct physical change in the environment, or a reasonably foreseeable indirect physical change in
the environment ..•.." CEQA Guidelines § 15378(a). The revocation of Garcia Recycling's
permit would constitute a "project" under CEQA because it has a potential for resulting in a
physical change in the environment in that the recycling of beverage containers may be severely
reduced thereby resulting in additional tonnage of trash in landfills (which would result in
additional vehicle trips for garbage trucks and more greenhouse gas emissions) and an increase in
trash on the streets.
It is undisputed- that Garcia Recycling handles more than double the amount of recyclable
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APPLICATION FOR APPEAL
1 beverage containers than any other recycling operation in Costa Mesa. While the City may
2 speculate that the recyclers would simply take their materials to other recyclers, based on the
3 comments we received at the neighborhood meeting, this would not be the case. Many of Garcia
4 Recycling's customers walk to the facility (as evidenced by the pictures we previously submitted)
5 and would not be able to walk to the other recyclers. Moreover, Garcia Recycling is the only
6. facility that is open on Mondays when the volume of material is the heaviest. Garcia Recycling is
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the largest and most efficient operation (as we learned from our neighborhood meeting, people
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come to Garcia instead of other facilities because of its efficiency). The .other recyclers simply.
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cannot handle the, volume of materials that Garcia Recycling handles and as such; it is inevitable
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that the total volume of beverage containers recycled in the City would decrease and result in an
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environmental impact. ' This impact must be analyzed under CEQA.
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Although the Commission may argue, that the revocation of the permit is exempt under the
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categorical exemption set forth in CEQA Guidelines Section 15 32 1, an- exceptionto-the
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categorical exemption would apply here, i.e., there is a reasonable possibility of significant effect
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due to unusual circumstances. See CEQA Guidelines Section 15300.2(c). "Unusual
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circumstance" within the meaning of the exception is whether "the circumstances of a particular
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project (i) differ from the general circumstances of projects covered by a particular categorical
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exemption, and (ii.) those circumstances create an environmental risk that does not exist for the
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general class of exempt projects." Azusa Land Reclamation Co. v, Main San Gabriel Basin
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Watermaster, 52 CalAppAth 1165, 1207 (1997); see also Communities for a Better Environment
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v. California Resources Agency, 103 Cal.AppAth 98, 129 (2002).
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This is not a typical case where the Commission is revoking the conditional use permit of
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a bar or restaurant which would not result in significant impactsto the environment. The
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Commission is considering revoking the permit of a recycling facility that is mandated by state
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law and which diverts a significant amount of trash from the landfills. This creates an
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environmental risk that does not exist for the general class of projects under this exemption.
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Indeed, the California Beverage Container Recycling and Litter Reduction.Act aka "The Bottle
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Bill" (AB 2020) explicitly allows the Department to penalize cities that "prohibito the siting of a
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supermarket site" or "caused a supermarket site to close its business." Pub. Res. Code §
14581(a)(5)(F) (emphasis added). We cannot conceive of any other type of use where a city may
be subject to a penalty where a conditional use permit is revoked.. Clearly, in passing the Bottle
Bill, the Legislature felt that cities should subrogate their land use interest for the benefit of
recycling:
consumers, and the Legislature hereby urges cities and counties, when exercising
their zoning authority, to act favorably on the siting of multimaterial recycling
centers, reverse vending machines, mobile recycling units, or other types of
recycling opportunities, as necessary for consumer convenience, and the overall
success of litter abatement and beverage container recycling in the state."
Pub. Res. Code § 14501(e).
As discussed above, because Garcia Recycling handles such a high volume of recycled
beverage containers, there is certainly a reasonable possibility that closure of the facility would _
result in a significant effect on the environment. Thus, the exception to the categorical exemption
would apply.
D. The Commissioners Violated the Brown Act ky Deliberating Outside of the
Public Meetins
Meetings of public bodies must be "open and public," actions may not be secret, and
action taken in violation of open meetings laws may be voided. Govt. Code § § 54953(a),
54953 (c), 54960.1(d). During the August 9th hearing, the Commissioners appeared to reach an
impasse regarding a finding of nuisance and they could not decide whether they wanted to modify
the permits, how they would modify it, or. whether to revoke it. Commissioner Righeimer called
for a recess and the Commissioners left the councils chambers and appeared to deliberate outside
of the presence of the public. This is evidenced by the fact that when Commissioner Righeimer
called the meeting back to order he had proposed language for the finding that Garcia Recycling
violated its conditions of approval which the other commissioners immediately accepted without
even examining the language. It.seems that they drafted the language together out of the purview
of the public in violation of the Brown Act. Thus, the Commission's decision to revoke Garcia
9 a35
APPLICATION FOR APPEAL
I
Recycling's permit must be deemed null and void.
2
M CONCLUSION
3
For the foregoing reasons, we request that the City Council overturn the Planning
4
Commission's decision to revolve Garcia Recycling's conditional use permits.
,5
Date: August 13, 2010 Respectfully submitted,
6
IvIl'Ems•- HEN-L—AW-GROUP—P- .
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By:
9
P tocia J. Ch n
Chen
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to
APPLICATION FOR APPEAL
ATTACHMENT _5
PLANNING COMMISSION REPORTS
AND RESOLUTION
�`py�p MFs9 PLANNING COMMISSION
-_ AGENDA REPORT lzr- , y
MEETING DATE: JULY 12, 2010 ITEM NUMBER:
,NC�RPpppIEO \9y0
SUBJECT: REVIEW OF ZONING APPLICATIONS ZA-89-25 AND ZA-92-10
MINOR CONDITIONAL USE PERMITS FOR GARCIA RECYCLING CENTER
739 WEST 19TH STREET
DATE: JULY 1, 2010
FOR FURTHER INFORMATION CONTACT: MEL LEE, A1CP, SENIOR PLANNER
(714) 754-5611 (mlee&i.costa-mesa.ca.us)
PROJECT DESCRIPTION
Zoning Applications ZA-89-25 and ZA-92-10 were called up for review to the Planning
Commission by Commissioner Mensinger on June 9, 2010. This review will consider
modification or revocation of the minor conditional use permits for an existing
neighborhood recycling facility (Garcia Recycling) located in the parking area of a retail
shopping sho in center. -
APPLICANT
The original applicant is Jesus Garcia, owner of Garcia Recycling Center. The property
owner is Russell Pange Trust.
RECOMMENDATIONS
1. Revoke Zoning Application ZA-89-25 and Modify ZA-92-10; or
2. Revoke both Zoning Applications ZA-89-25 and ZA-92-10.
MEL LEE, AICP
Senior Planner
KHANH NGEor
Asst. Develp t Services Director
14
A
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
BACKGROUND
Project Site/Environs
The property is located on the south side of West 19th Street between Wallace Avenue
and Pomona Avenue, and contains a multi -tenant retail shopping center which includes
EI Toro Bravo Market, Lion's Den nightclub, and several food and retail tenants. -The
property is surrounded by the following:
To the west, Wallace Avenue;
To -the east, a Smart and Final store;
• To the south., residential properties;
To the nort ,:several commercial properties, including a pawn shop and liquor store,;
across .W.est 1.9. Street.. _..._
The property is. zoned C1 and has a General Plan designation of General -Commercial.*.
The property is also located within the 19 West Urban Plan.
Previous Zoning Applications for the. Existing Recycling Center
ZA-89-25: The applicant submitted the original minor conditional use permit for the
recycling center for aluminum cans, plastic and glass bottles, in exchange for money.
The use was approved by the Zoning Administrator on November 6, 1989. ' The..
approval consisted of a single truck occupying a parking space along the West 19t"
Street frontage (see Attachment 2). The approved hours of operation were 10:30 a.m.
to 5:00 p.m. Monday through Saturday (closed Sundays). On December 3, 1991, the
applicant was advised by staff that the use was not operating in compliance with ZA-89-
25 for the following reasons:
• More than one truck was being used for the collection of recycling materials;
• The operation had been moved from the front of the property to the rear of the
property, which generated noise complaints from the abutting residential properties.
In response to these issues, the applicant submitted an application to revise the MCUP
for the use, which was processed as ZA-92-10.
ZA-92-10: The applicant submitted a request to modify ZA-89-25 to allow a maximum of
two portable recycling containers, located within the front parking area, in three parking
spaces along the side of the property adjacent to Smart and Final's parking lot.. This
was approved by the Zoning Administrator on December 1, 1992. The approved hours
of operation are 9:00 a.m. to 5:00 p.m. Monday through Saturday, and 9:00 a.m. to 4:00
p.m. Sundays (see Attachment 3).
--a��
APPL. ZA-89-25 AND ZA-92-10 (REVIEW
ANALYSIS
Code Provisions
Municipal Code Section 13-29(o) (Enforcement Authority) allows the Commission to
modify or revoke a Planning or Zoning Application if the following conditions are found to
apply:
1. The use constitutes a public nuisance; or
2. The use does not comply with the conditions of approval.
Use Issues
Past concerns related to the operation of this use is summarized in the discussion
below..
• The use is not being operated in a manner deemed to be compatible with
surrounding properties and uses. Since the approval of the use, concerns
resulting from noise related to the pouring of recycled materials into containers at
the facility, odors related to the used beverage containers, loitering of vagrants
and homeless, and customers parking on adjacent properties to use the recycling
facility have been raised (see Attachment 4).
The use creates a negative visual impact due to excessive signage and lack of
property maintenance. The containers at this location generally have an
unsightly, "battered' appearance; the landscape planters surrounding the use
have not been adequately maintained due to high use of the facility by customers;
and the high demand for recyclables at this location requires the staging of a
truck, in lieu of the second container (see pictures in Attachment 5).
A significant degree of City staff resources has been devoted to the use as a
result of complaints related to the use and continual enforcement of noise and
property maintenance issues. A timeline of City staff efforts to correct the issues
at the site from July 2009 to the present is summarized in the table below:
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
Date
Discussion
Progress
July 30, 2009
Joint staff visit from Planning and
No visible progress.
Code Enforcement staff.
August. 3, 2009
City issued letter stating recycling
No visible progress.
center is violating CUP and
requested:
1. Remove the truck staged at
the property.
2. install new signs
3. Remove cashier from .
required landscape area and
repair-daniaged landscaping..
4. Ensure all staging and
materials are contained .
inside the containers.
August 21, 2009 .._
Received letter from .recycling
Meeting arranged..:
centers attorney requesting a
meeting.
:.September 3,:2009
Meeting held with applicant and City
Applicant to follow. up with Staff.
staff..'
..September 1:4,..2009
Spoke with, applicant's representative
Provided photos of sign examples
over. phone.
and painted containers over email'.
`
Signs ok, provide onsite.
November 24;2009
Meeting with applicant.
Containers painted and cleaned up
signage.
March 18, 201.0 ...
City issued letter stating issues.
No visible progress.
related to installation of a new
cashier's unit, noise and landscape
repairs that still need to be
addressed. Applicant advised case
will be forwarded to Code
Enforcement if no further progress
made.
March' 22, 2010
Call from applicant.
Different alternatives discussed.
April 1 & 5, 2010
Call from applicant.
Removed cashiers unit and removed
illegal paving; however; replaced with
artificial lawn. Not permitted.
April 7, 2010.
Meeting with applicant and City staff.
Discussed possible different locations
on property for recycling center.
April 12, 2010
Meeting with applicant and City staff.
Desired location (abutting 19 St), not
acceptable (was original location
under ZA-89-25).
April 29, 2010
Meeting with applicant and City staff.
Restored live landscaping. Supposed
to test different locations on property
for functionals .
May 26, 2010
Call from applicant.
Wished to remain in current location
and replace staged truck with 2"d
container and change out throughout
day.
June 9, 2010
Planning Commissioner Mensinger
Scheduled for July 12, 2010 Planning
called item up for review.
Commission meeting.
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
Date
Discussion
Progress
June 15, 2010
Meeting with applicant.
Progress to date:
1. Removed cashiers unit. .
2. Installed landscaping.
3. Painted units and cleaned up
s2nage.
4. 2 container replaced staged
truck (however only for week
or two. Truck currently
remains).
Remaining Violations:
1. Business being conducted
outside containers.
2. Truck still staging at site.
Issues related to noise, odors,_ transients, Droperty maintenance. etc. do not
appear to be prevalent at other recycling facilities in the City as they are at this
location. According to City records, the City has had no complaints related to
noise, odors, transients, property maintenance, etc. related to the operation of the
recycling facilities at the Stater Brothers property (2180 Newport Blvd.) or at Vons
Market (185 East 17th Street).
A map showing the locations of the existing recycling facilities in the City is attached to
this report (Attachment 6).
Modification of Zoning Application ZA-92-10
Zoning Application ZA-92-10 is a minor conditional use permit to expand/relocate the
originally -approved recycling center use under ZA-89-25.
If the Commission wishes to retain the recycling business at this location, it is necessary
to revoke ZA-89-25 which established the original recycling center, and modify ZA-92-10
as follows:
Modify the description of ZA-92-10 to indicate that the discretionary permit
is independent (or not associated) with any prior approval for a recycling
center at this location, including ZA-89-25 which established the original
recycling center.
Add the following conditions of approval for ZA-92-10 as recommended by
staff to address the concerns related to the use at this location:
o The minor conditional use permit for the recycling facility is a
discretionary permit that is not associated to any previous approvals.
The approved hours of operation are 9:00 a.m. to 5:00 p.m. Monday
through Saturday, and 9:00 a.m. to 4:00 p.m. Sundays:
o The use shall be limited to the type of operation described in this staff
report. i.e., a recycling center for aluminum cans, plastic and glass
bottles in a' maximum of two containers. Any change in the operational
WA")—
APPL. ZA-89-25 AND ZA-92-10 (REVIEW}
characteristics including, but not limited to, hours of operation or number
of containers, shall require approval of an amendment to the minor
conditional use permit, subject to Zoning Administrator approval.
o The business shall be conducted, at all times, in a manner that will allow
the quiet enjoyment of the surrounding neighborhood. The applicant
and/or business owner shall institute whatever security and operational
measures are necessary to comply with this requirement.
o The applicant shall patrol the area over which the applicant has control in -
an effort to prevent the loitering of persons. about the premises. The. .
frequency of patrols shall be increased should the need arise. The
applicant shall make reasonable efforts to prevent:loitering during. hours
the business is open:
o Applicant shall secure the premises with appropriate security lighting and
:'employee scrutiny of adjacent areas under which applicant has control; to
_ ... prevent`trash; graffiti and littering:
o, The applicant shall maintain free of litter all areas of the premises under
which applicant has control:.
o The.applicant shall construct a decorative wrought iron fence a minimum
of six feet in. height along the easterly property line (between the subject
property and Smart and Final) to prevent recycling customers from parking
in the adjacent lot, subject to the City's provisions for walls, fences,, and
hedges.
o The applicant shall upgrade the existing on-site landscaping to provide
thorn bearing hedges or similar plant treatments to prevent damage to the
landscaped areas by customers.
o The recycling containers shall be properly maintained and shall be
replaced if damaged or.dirty.
o The above conditions of approval are required to be complied with no
later than 30 days from the date of approval. The applicant shall contact
the Planning Division to arrange a Planning inspection of the site to
confirm'. that the conditions of .approval and code requirements have
been satisfied.
o All business activity shall be conducted inside the containers including,
but not limited to, washing and weighing items received for recycling.
Note that these would be in addition to the existing conditions of approval for ZA-92-
10.
Revocation of Z4-89-25 and ZA-92-10
Because a Zoning Application continues to be in effect regardless if the use was
modified or amended afterwards (i.e., "runs with the land") a similar use could be
established on the property without any updated conditions of approval to minimize
impacts to surrounding properties.
Commission may also determine that modifications to ZA-92-10 may not be sufficient
to address the impacts to surrounding properties as a result of this use and determine
the current use to be a public nuisance, thereby revoking the minor conditional use
a�3
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
permit. Revocation will require cessation of the current use and a similar use cannot
be established in the future unless a new Zoning Application is submitted and
approved.
In order to discontinue all recycling center activity at this location, it is necessary to
revoke both minor conditional use permits. Zoning Application ZA-89-25.was a MCUP
to originally establish the recycling center use at this location, and Zoning -Application
ZA-92-10 represents a MCUP to expand the previously -approved use.
ENVIRONMENTAL DETERMINATION
If modified, the use would be exempt from the provisions of the California
Environmental Quality Act under Section 15301 for Existing Facilities. If the use is
revoked, it would be exempt from the provisions of the California Environmental Quality
Act (CEQA) Section 15321 for Enforcement Actions by Regulatory Agencies.
GENERAL PLAN CONFORMITY
As indicated earlier, based on the current nature of the use and impacts to
surrounding properties, the use is _ not consistent with the City's General Plan,
specifically, Objective LUA F, which not
minimizing blighting influences and
maintaining the integrity of stable neighborhoods, unless the Zoning Applications are
modified or revoked as appropriate.
ALTERNATIVES
The Commission has the following alternatives:
1. Revoke ZA-89-25 and Modify ZA-92-10 by incorporating the additional
recommended conditions of approval, required to be complied with by the applicant
no later than 30 days from the date of approval; or
2. Revoke both ZA-89-25 and ZA-92-10. Revocation will require that, if a similar use
is proposed in the future, a new Zoning Application be submitted and approved.
3. Receive and file. This involves no action to either modify or revoke ZA-89-25 and
ZA-92-10. The minor conditional use permits will remain in place with no changes,
and this review is filed.
CONCLUSION
Staff recommends that the Commission takes action, as appropriate, to either modify or
revoke Zoning Applications ZA-89-25 and ZA-92-10.
Attachments:
3,W7gA9 Appli@atiaR �-8940
5. Location Map and Photos
6. Table and Map of Existing Recycling Facilities in Costa Mesa
SAA
APPL. ZA-89-25 AND ZA-92-10 (REVIEW
cc: Development Services Director
Deputy City Attorney
City. Engineer
Fire Protection Analyst
Staff.(4)
File, (2)
Garcia. Recycling Centers & Metals Inc.
Attn:-.'Jesus Garcia
1115.S.Elliot Place
Santa Ana, CA 92704
Russell: Pange'Trust
'1.83.5 Newport BOUl6V8f.d #A109 ..
Costa: Mesa, CA 92627'
Mlles+'Chen Law Group..
Attn ;' Patricia J: Chen
9911 'Irvine Center Drive, Suite 150
Irvine, CA 92618
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ATTACHMENT 6
-- Recycling Centers in Costa Mesa
Market Name
Market Address
Facility Name
1. Stater Bros Market
1175 Baker Street, Suite C
ASOCC Recycling Center
2. Vons Market
2701 Harbor Boulevard, Suite B
3. Marukai Market
2975 Harbor Boulevard
4. Henry's Marketplace
3030 Harbor Boulevard, Suite D
5, Vons Market
185 E 17th Street
NexCycle
6. Stater Bros Market
2180 Newport Boulevard
Earthwize Recycling
7. Ralphs Grocery
380 E 17th Street
NexCycle
8. Smart & Final
707 W 19th Street
Garcia's Recycling Center & Metals
9. EI Metate Market
817 W 19th Street
Garcia's Recycling Center & Metals
10.Albertsons Store
2300 Harbor Boulevard
11. Mitsuwa Marketplace
665 Paularino Avenue
12. Trader Joes Market
640 W 17th Street
NexCycle
13. Trader Joes Market
640 W 17th Street
Garcia's Recycling Center & Metals
14. Morthers Market & Kitchen
225 E 17th Street
NexCycle
Source: California Department of Conservation
0
PLANNING COMMISSION
AGENDA REPORT
MEETING DATE: AUGUST 9, 2010
YE.3
ITEM NUMBER:
SUBJECT: CONTINUED HEARING FOR THE REVIEW OF ZONING APPLICATIONS ZA-89-25 AND
ZA-92-10
MINOR CONDITIONAL USE PERMITS FOR GARCIA RECYCLING CENTER
739 WEST 19TH STREET
DATE: JULY 28, 2010
FOR FURTHER INFORMATION CONTACT: MEL LEE, AICP, SENIOR PLANNER
(714) 754-5611 (mlee&i.costa-mesa.ca.us)
PROJECT DESCRIPTION
Zoning Applications ZA-89-25 and ZA-92-10 were called up for review to the Planning
Commission by Commissioner Mensinger on June 9, 2010. This review will consider
modification or revocation of the minor conditional use permits for an existing
neighborhood recycling facility (Garcia Recycling) located in the parking area of a retail
shopping center.
This item was continued from the meeting of July 12, 2010, at the applicant's request.
APPLICANT
The original applicant is Jesus Garcia, owner of Garcia Recycling Center. The property
owner is Russell Pange Trust.
RECOMMENDATIONS
1. Revoke Zoning Application ZA-89-25 and Modify ZA-92-10; or
2. Revoke both Zoning Applications ZA-89-25 and ZA-92-10.
MEL LEE, AICP ?XKHANCH
Senior Planner Asst. DE
a5A
Director
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
BACKGROUND
At the July 12, 2010 Planning Commission meeting, Patricia Chen, the applicant's legal
counsel, requested that the item be continued to the August 9, 2010 meeting in order to
allow legal counsel additional time to evaluate the issues related to the operation of the
recycling facility, contact affected property and business owners, and provide additional
alternatives andpossible "best practices" for operating the facility.
To reduce paper, the July 12, 2010 report is not attached to this memo. However, the
original report can be found at the City's website at the below link:
http://www.ci.costa-mesa. ca. uslcou ncillplann i ngl2010-07-12107121 OZA9210Review. pdf
ANALYSIS
With regard to the issues raised by Ms. Chen in the letter submitted to the Commission
on July 12, 2010, (Attachment 2) staff has prepared the following responses:
Issue:
"If the Commission revokes Garcia Remycling's permits, two convenience zones will be
in violation of (Assembly Bill AB 2020) the Bottle Bill".
Response:
According to the CalRecycle website (http://www.calrecycle.ca.gov/BevContainer/.
Retailers/Zones.htm), a "convenience zone is defined as follows:
'A half -mile radius circle with the center point originating at a supermarket that
meets the following definitions of Public Resources Code Sections .14509.4 and
14562.5:
• A supermarket as identified in the Progressive Grocer Marketing Guidebook.
• A supermarket with gross annual sales of $2 million or more.
A supermarket is considered a "full -line" store that sells a line of dry groceries,
canned goods, or non-food items and perishable items.
A convenience zone is required by law to have within the zone's boundaries a
recycling center that redeems all California Redemption Value (CRV) containers.
A convenience zone with a recycler inside its boundaries is considered a served
zone".
Staff contacted Walt Simmons, CalRecycle's Recycling Specialist that oversees Costa
Mesa, on July 23, 2010. Mr. Simmons provided a map showing the radius of the
convenience zones around the subject property (Attachment 4). He indicated that there
is an overlap of convenience zones in this area as a result of the recycling center on the
subject property and the existing recycling center at Vons Market (185 E. 17t' Street).
APPL. ZA-89-25 AND ZA-92-10 (REVIEW
Mr. Simmons indicated that because of the overlapping convenience zones in the area,
were the Commission to revoke the minor conditional use permits for Garcia Recycling,
it would not result in an unserved convenience zone because the area would continue to
be served by the existing recycling facility at Von's Market. Additionally, CalRecycle's
website FAQ page, the link for which is cited earlier in this report, states the following
question and answer with regard to overlapping convenience zones:
"Question: Can Multiple Overlapping Convenience Zones Be Served by a Single
Recycler?
Answer: Yes. .Overlapping convenience zones are common in commercial
zoning areas throughout California. If a recycler is on-site at one convenience
zone where one or more convenience zones overlap, each of these zones are
served by this recycler. Accordingly, it is not necessary in such cases for each
convenience zone to support its own recycling center":
However, Mr. Simmons indicated that it would likely result in the current Garcia
Recycling customers going to the other recycling centers in the immediate area to
recycle their items, a concern also noted by the Smart & Final Market adjacent to the
subject property in their e-mail dated July 8, 2010 (Attachment 3). At present, neither
Smart & Final nor EI Metate Market, which are closest to Garcia Recycling, have their
own public recycling facilities. As indicated in the attached emails, Smart & Final would
be reluctant to take on an operation on the scale of Garcia's Recycling on their own
property, and according to Mr. Simmons, EI Metate Market has expressed similar
concerns about a recycling center on their property.
Issue:
"If Garcia Recycling is forced to cease operations, the loss of beverage container
diversions may compromise the (Integrated Waste Management) Plan".
Response:
Costa Mesa's waste management and recycling programs comply with all applicable
provisions of State Law. The Integrated Waste Management Plan (IWMP) is
administered by the Costa Mesa Sanitary District. According to the Sanitary District,
were the minor conditional use permits for Garcia Recycling to be revoked, it would not
compromise the IWMP because the Sanitary District separates recyclables from regular
trash to comply with the applicable beverage container diversion goals (see Attachment
5)•
The other issues in Ms. Chen's letter regarding property maintenance and the staging of
trucks at Garcia Recycling were discussed in the July 12, 2010 Planning staff report.
c`�,5�
APPL. ZA-89-25 AND ZA-92-10 (REVIEW)
Attachments:
4. Map`of Convenience Zone Locations Provided by CalRecycle
5.; ;Summary of Costa Mesa Sanitary District Waste and Recycling.
Program
cc: Development Services Director
Deputy City Attorney
City Engineer
Transportation Svs. Mgr.
Fire Protection Analyst
-Staff (4)
File (2)
Garcia Recycling Centers & Metals Inc.
Attn: Jesus Garcia
1115 S. Elliot Place
Santa Ana, CA 92704
Russell Pange Trust
1835 Newport Boulevard, #A109
Costa Mesa, CA 92627
Miles+Chen Law Group
Attn: Patricia J. Chen
9911. Irvine Center Drive, Suite 150
Irvine, CA 92618 .
File: 080910ZA8925Review Date: 072910 Time: 1:45 p.m.
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RESOLUTION NO. PC -10-,95
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF COSTA MESA REVOKING ZONING
APPLICATIONS ZA-89-25 AND ZA-92-10
THE PLANNING COMMISSION OF THE CITY OF COSTA MESA HEREBY
RESOLVES AS FOLLOWS:
WHEREAS, applications were filed by Jesus Garcia, authorized agent for Russell
Pange Trust, requesting approval of minor conditional use permit for a recycling facility,
located at 739 West 17th Street in a C1 zone;
WHEREAS, on November 6, 1989, the Zoning Administrator approved Zoning
Application ZA-89-25 for a minor conditional use permit for a recycling center at the
subject location;
WHEREAS, on December 1, 1992, the Zoning Administrator approved Zoning
Application ZA-92-10 for a minor conditional use permit for the relocation and expansion
of a previously -approved recycling center at the subject location;
WHEREAS, a review of the minor conditional use permits were requested by
Commissioner Mensinger to determine if the minor conditional use permits should be
modified or revoked on the basis of being a public nuisance; and
WHEREAS, a duly noticed public hearing was held by the Planning Commission
on July 12, 2010, and continued to August 9, 2010.
BE IT RESOLVED that, based on the evidence in the record and the findings
contained in Exhibit "A," the Planning Commission hereby REVOKES Zoning
Applications ZA-89-25 and ZA-92-10 with respect to the property described above.
PASSED AND ADOPTED this 9th day of August, 2010.
Ja r R ghe mer, Chair
sta Mesa Planning Commission
a6k
STATE OF CALIFORNIA )
)ss
COUNTY OF ORANGE )
I; Khanh Nguyen, Secretary to the Planning Commission of the City of Costa Mesa, do. hereby .
certify that the foregoing Resolution was passed and adopted at a meeting of the City of .Costa Mesa
Planning Commission held on August 9, 2010, by the following votes:
AYES: COMMISSIONERS: RIGHEIMER; FITZPATRICK, MCCARTHY, MENSINGER
NOES: COMMISSIONERS: CLARK
ABSENT: COMMISSIONERS: NONE
ABSTAIN: COMMISSIONERS: NONE
Khanh Nguyen,
Costa Mesa PI -
FA W
Commission
EXHIBIT "A"
FINDINGS
ZA-89-25 and ZA-92-10
A. Revocation of ZA-89-25 and ZA-92-10 was initiated because the operation of the use
(a recycling facility) was determined to constitute a public nuisance pursuant to
Municipal Code Section 13-29(o) (Enforcement Authority). Based on the evidence
submitted into the public record, the use. is not being operated in compliance with the
conditions of approval for ZA-89-25 and ZA-92-10, specifically:
1. The recycling facility is not being operated in a manner deemed compatible with
surrounding properties and uses. From July 2009, to the present, the City has
documented code enforcement and Planning staff inspections of the use
identifying the following concerns: excessive noise related to employees pouring
recycled materials into containers at the facility; odors stemming from used
beverage containers, the operator's failure to maintain the cleanliness of the
facility; customers loitering during and outside of business hours; customers
parking on adjacent properties to use the recycling facility. The conditions of
approval of ZA-89-25 and ZA-92-10 were designed to minimize these types of
impacts.
2. The use creates a negative visual impact on West 19t' Street, due to lack of
property maintenance. Specifically, the containers generally have an unsightly,
"battered" appearance; the landscape planters surrounding the facility have not
been adequately maintained due to high use of the facility by customers; and the
high volume of for recyclables received at this location requires the staging of a
commercial truck on a long-term basis, in lieu of a second recycling container.
3. A significant degree of City staff resources has been devoted to the use as a result
of complaints related to the use and continual enforcement of noise and property
maintenance issues. The business owner/property owner has failed to rectify the
problems to be in compliance with the minor conditional use permit requirements
to the satisfaction of the City.
4. Issues related to noise, odors, loitering, and property maintenance are not
prevalent at other recycling facilities in the City as they are at this location.
According to City records, the City has had no complaints related to noise, odors,
loitering, property maintenance, etc. related to the operation of the recycling
facilities at other locations in the City.
5. Modifications to the conditions of approval for ZA-89-25 and ZA-92-10 are not
sufficient to address the adverse impacts to surrounding properties. Revocation
will require cessation of the current use and a similar use cannot be established
in the future unless a new Zoning Application is submitted and approved.
6. The intensity and scale of the recycling facility is inappropriate for a prominent
parking lot location adjacent to West 19th Street, a major arterial designated as
an "urban path" in the City's .2000 General Plan. Given the high volume of
recycling occurring at this facility, the facility is considered out -of -scale with the
intended function of minor recycling facilities which are approved in parking lots
pursuant to a minor conditional use permit.
7. If the minor conditional use permits are revoked, the City will remain in compliance
with all applicable provisions of State Law as it pertains to recycling and waste
management. Specifically, revocation would not result in an unserved
ZA-89-25 and ZA-92-10
"convenience zone" as defined by State Law because the area would continue to.
be served by the existing recycling facility at Von's Market. Additionally, per the
letter submitted into the public record by the Costa Mesa Sanitary District dated
August 9, 2010, revocation of the minor conditional use permits would not
compromise the Integrated Waste Management Plan because the City's Sanitary
District separates recyclables from regular trash to comply with the applicable
beverage container diversion goals.
8. The use is not being operated in compliance with the conditions of approval for
ZA-89-25 and ZA-92-10 in that the original approval was for a neighborhood
recycling facility approved to operate within the parking area for the 739 W. 19th
Street property. Based on the evidence submitted into the record, the original
operation has expanded to the scale and intensity of a regional recycling facility,
processing approximately 4.2 million pounds of recyclable materials annually..
This expansion has resulted in a scale and intensity of use beyond: the
boundaries of the subject property, requiring the use of the parking area -.for. -the.
adjacent 709 W. 19th Street property for the unloading of recyclable materials by
customers.
B. The project has been reviewed Jor compliance with the California Environmental
Quality Act (CEQA), the CEQA Guidelines; and the City's environmental
procedures, and has been found to be exempt from CEQA under Section 15321.for
Enforcement Actions by Regulatory Agencies.
C. The project is exempt from Chapter XII, Article 3, Transportation System
Management, of Title 13 of the Costa Mesa Municipal Code.