HomeMy WebLinkAbout01 - PH-1 - Request Extend Closure Date for Garcia - 2/1/2011CITY COUNCIL AGENDA REPORT
MEETING DATE: FEBRUARY 1, 2011
ITEM NUMBER:
SUBJECT: REQUEST TO EXTEND CLOSURE DATE FOR GARCIA RECYCLING CENTER
739 WEST 19TH STREET
DATE: JANUARY 20, 2011
FROM: DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: MEL LEE, AICP, SENIOR PLANNER
KIMBERLY BRANDT, AICP, DIRECTOR
FOR FURTHER INFORMATION CONTACT: MEL LEE (714) 754-5611
mlee(aD-cl.costa-mesa.ca.us
RECOMMENDATION:
Approve or deny the applicant's request to extend the February 14, 2011 closure date
for Garcia Recycling Center as mandated by the City. Council in conjunction with the
revocation of minor conditional use permits ZA-89-25 and ZA-92-10.
BACKGROUND:
On November 16, 2010, City Council adopted Resolution Number 10-77 revoking the
above minor conditional use permits for Garcia Recycling Center, and requiring the facility
to close no later than February 14, 2011 (90 days after the date of the Council decision).
The resolution also contains the following language allowing the applicant to request an
extension of the mandated closing date:
"If Garcia Recycling is unable to find a suitable alternate location within ninety (90)
days, but has made diligent efforts and/or substantial progress toward re -location as
determined by the City Council, then the ninety (90) days' stay on the effectiveness of
the revocation of the applications may be extended by the City Council upon
application by Garcia Recycling, as deemed necessary and appropriate by the City
Council".
The request to extend the closure date for the Garcia Recycling Center is attached
(Attachment 1). City Council Resolution Number 10-77 is also attached (Attachment 2).
ANALYSIS:
Progress to Date
Action on the extension request is at the discretion of the City Council.
The applicant and/or his representatives have met with City staff on several occasions to
discuss alternate locations. Discussions have focused on different locations in the
Westside and the possibility of constructing new buildings that would accommodate the
recycling facility. The discussions have been conceptual in nature at, this preliminary
stage. Staff has expressed concerns with various aspects of the different proposals. At
this time, a formal application submittal has not been made.
LEGAL REVIEW:
The City Attorney's office will address any legal implications of the extension request by
separate cover.
ALTERNATIVES CONSIDERED:
1. Extend the closure date as requested by the applicant.
2. Receive and file.
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MEL LEE, AICP
Senior Planner
KIMBERLY BRA D , AICP
Development Services Director
ATTACHMENTS: 1. Extension Request
2. City Council Resolution Number 10-77
DISTRIBUTION: City Manager
Asst. City Manager
City Attorney
Acting Asst. Development 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
13862 Seaboard Circle
Garden Grove, CA 92843
N
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
File: 020111GardaExtensionRe uest I Date: 012011 1 Time: 9:30 a.m.
F
MILES* CHEN LAw GROUP
9911 Irvine Center Drive, Suite 150 • Irvine, CA 92618
Phone: 949.788.1425 • Fax (949) 788-1991
January 20, 2010
VIA EMAIL (mlee@ci.costa-mesa.ca.us)
City Council
City of Costa Mesa
c/o Mr. Mel Lee
Senior Planner
P.O. Box 1200
77 Fair Drive
Costa Mesa, CA 92626-1200
Re: Garcia Recycling
Dear Councilmembers:
ATTACHMENT 1
A PROFESSIONAL CORPORATION
L A N D U S E • E N V I R O N M E N T • E N T I T L E M E N T
As you may know, Garcia Recycling has been working diligently to relocate its
operations from 739 W. 191h Street to a new location since the City Council voted to revoke
Garcia Recycling's use permits in November 2010. As you will recall, Garcia Recycling has
been operating at the 19`h Street location for over 20 years. Jesus Garcia has met with the City's
Planning Department several times and he is currently in the process of submitting an application
for a conditional use permit ("CUP") to operate a recycling facility at 2025 Placentia.
Mr. Garcia has partnered with John Morehart of 126 Properties LLC, the owner of the
property at 2025 Placentia, and they are planning to construct a state-of-the-art building to
permanently house Garcia Recycling's recycling operations. Mr. Morehart has already spoken to
the neighbors in the area as -well as the citizen group which had been opposed to the Cash for
Cans proposal on the same street and the group expressed support for the project. The site is a
deep lot (over 300 feet deep) in an MG zone, and Mr. Morehart is planning to construct a
building close to the street so as to minimize impact to the properties abutting the back of the
property.
Garcia Recycling anticipates filing its CUP application within the next two weeks, prior
to the City Council's meeting on February 1, 2011. Garcia Recycling further anticipates that the
CUP approval process will take 3-6 months and construction of the building at the site will take
an additional 6 months. In the meantime, Garcia Recycling would like to continue to operate its
mobile recycling facility on 191h Street. As the Council is aware, many individuals rely on
Garcia Recycling, and Garcia Recycling believes it has a responsibility to continue to serve the
community and keep its employees employed until it is able to relocate.
As such, we respectfully request a 9 month extension to continue its operations. At the
end of this 9 month period, Garcia Recycling would like the opportunity to request an additional
extension in the event construction of the building is not completed.
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Costa Mesa City Council
January 20, 2011
Page 2 of 2
We appreciate your consideration on this matter and look forward to answering any
questions at the February 1, 2011 meeting.
cc: Jesus Garcia (via email)
John Morehart (via email)
Fred N. Canlas, CPA (via email)
Sincerely,
Patricia J. Chen
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ATTACHMENT 2
RESOLUTION NO. 10-77
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF COSTA MESA, CALIFORNIA, TO UPHOLD THE
PLANNING COMMISSION'S ACTION TO REVOKE
ZONING APPLICATIONS ZA-89-25 AND ZA-92-10.
THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY RESOLVES
AS_F_OLLOWS.:
WHEREAS, in 1989, 'Zoning Application ZA-89-25 was 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 19th 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 fora 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 the previously -approved recycling center at the subject location;
WHEREAS, a review of the minor conditional use permits were requested by
Planning Commissioner Mensinger to determine if the minor conditional use permits
should be modified or revoked;
WHEREAS, a duly noticed public hearing was held by the Planning Commission.
on July 12, 2010, and continued to August 9, 2010, and ZA-89-25 and ZA-92-10 were
revoked by the Planning Commission;
WHEREAS, on August 16, 2010 an appeal of the Planning Commission's
decision was filed by Miles + Chen Law Group representing the business owner of
Garcia Recycling;
WHEREAS, on September 7, 2010, City Council considered the appeal of ZA-89-
25 and ZA-92-10, which was continued to the hearing of October 19, 2010;
WHEREAS, at the October 19, 2010, the City Council conducted a duly notice
public hearing and a de novo review of the appeal of Garcia Recycling on the revocation
of the Minor Conditional Use Permits for a recycling facility, at which public hearing
Garcia Recycling and its representatives presented evidence on the behalf of the
business;
WHEREAS, further, the City Council considered all evidence presented to the
Planning Commission, as well as all evidence presented to the City Council, pursuant to
Costa Mesa Municipal Code Section 3-303 (4)(a) & (b), which materials and evidence
included a staff report, the presentation of evidence by staff, oral argument and
evidence presented by Garcia Recycling and its representatives, and public comments
(oral and written) both in favor of and opposed to revocation;
BE IT RESOLVED that, based upon review and consideration otall materials and
evidence presented to it, the City Council hereby makes the findings contained in
Exhibit "A," and based upon such materials, evidence and findings, the City Council
hereby UPHOLDS the Planning Commission's action to REVOKE Zoning Applications
ZA-89-25 and ZA-92-10.
Such findings and determination is made based upon the totality of the
circumstances, for which there is substantial evidence that Garcia Recycling is being
operated, and continues to operate, contrary to the health, safety and general welfare of
the adjacent and surrounding neighborhoods and the people of the City of Costa Mesa,
as well as in violation of the express parameters and Conditions of Approval of the
MCUP(s) under which it operates. The current and past operation of Garcia Recycling
constitutes a public nuisance 'and is detrimental to the public health or safety so as to
constitute a public nuisance.
Notwithstanding the findings and determinations herein, the City Council further
finds that Garcia Recycling should be afforded time to relocate and re-establish its
recycling operations at a more suitable location. The City Council recognizes that
recycling is generally of significant benefit to the community and the environment, even
though the recycling center at its present location is unsuitable and constitutes a
nuisance. Therefore, the revocation of Zoning Applications ZA-89-25 and ZA-92-10,
shall not take effect for ninety (90) days from and after it adopted. If Garcia Recycling .
is unable to find a suitable alternate location within ninety (90) days, but has made
diligent efforts and/or substantial progress toward re -location as determined by the City
Council, then the ninety (90) days' stay on the effectiveness of the revocation of the
Applications may be extended by the City Council upon application by Garcia Recycling,
as deemed necessary and appropriate by the City'Council.
PASSED AND ADOPTED this 16th day of November, 2010.
r, Mayor
ATTEST: APPROVED AS TO FORM:
lie Folcik, City Clerk Kimberly all Barlow, City Attorney
LI
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, JULIE FOLCIK, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY
that the above and foregoing is the original of Resolution No, 10.77 and was duly
passed and adopted by the City Council of the City of Costa Mesa at a regular meeting
held on the 16th day of November, 2010, by the following roll call vote, to wit:
AYES:
COUNCIL MEMBERS:
MANSOOR, LEECE, BEVER, FOLEY, MONAHAN
NOES:
COUNCIL MEMBERS:
NONE
ABSENT:
COUNCIL MEMBERS:
NONE
IN WITNESS WHEREOF, 1 have hereby set my hand and affixed the seal of the
City of Costa Mesa this 18th day of November, 2010.
(SEAL)
JLXIE FOLCIK, CITY CLERK
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EXHIBIT "A"
FINDINGS
A. Review of ZA-89-25 and ZA-92-10 was initiated to determine whether the
operation of the use (a recycling facility) was a public nuisance and whether it was
compliant with the applications and conditions of the approvals, pursuant to Costa Mesa
Municipal Code Section 13-29 (o) (Enforcement Authority). Based on substantial
evidence, the use is determined to be a public nuisance and 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, particularly bottles; odors stemming
from used beverage containers, trash going into neighboring yards; and customers.
parking on an adjacent property to use the recycling facility. In fact, there have been
complaints about the use since 1992. The conditions of approval of ZA-89-25 and ZA-
92-10 were designed to minimize these types of impacts. Indeed, in the MCUP
applications themselves, the applicant promised to keep the site "clean and free from
any type of noise." Thus, the MCUPs were issued based on applicants' assurance that
the trash and noise impacts to. surrounding property owners would essentially be non-
existent.
Specific video evidence was presented of the sound impacts to neighboring residents.
The noise impact to the adjacent residences and the surrounding area is significant and
begins from early morning hours (7:30 a.m.) for six days per week. The use was
originally approved for hours only from 10:30 a.m. to 5 p.m., with only one attendant. In
addition, there is substantial evidence relating to odors and trash debris emanating from
the use.
With respect to noise, the Costa Mesa Municipal Code provides as follows:
It shall be unlawful for any person to willfully make or continue, or cause to be made or
continued, any loud, unnecessary and unusual noise which disturbs the peace or quiet
of any neighborhood or which causes discomfort or annoyance to any reasonable
person of normal sensitiveness residing in the area, regardless of whether the noise
level exceeds the standards specified in section 13-280, Exterior noise standards, and
section 13-281, Interior noise standards. The standard which may be considered in
determining whether a violation of the provisions of this section exists may include, but
not be limited to, the following:
(a) The level of noise;
(b) Whether the nature of the noise is usual or unusual;
(c) Whether the origin of the noise is natural or unnatural;
(d) The level and intensity of the background noise, if any;
(e) The proximity of the noise to residential sleeping facilities;
(f) The nature and zoning of the area witffin which the noise emanates;
(g) The density of the inhabitation of the area within which the noise emanates;
(h) The time of the day and night the noise occurs;
(i) The duration of the noise;
(j) Whether the noise is recurrent, intermittent or constant;
(k) Whether the noise is produced by a commercial or noncommercial activity; and
(1) The density of the inhabitation of the area affected.
CMMC 13-283
Further, the Costa Mesa Municipal Code provides that "[i]t is.determined that certain
noise levels are detrimental to the public health, welfare and safety and contrary to
public interest,.and therefore the city council does ordain and declare that the creating
or maintaining or causing or allowing to be created or maintained any noise in a manner
prohibited by or not in conformity with the terms of this chapter is a public nuisance...."
A conditional use permit or minor conditional use permit may be revoked due to the use
constituting a nuisance. CMMC § 13-29 (o)(1).
2. The use has created a negativelvisual impact on West 19th 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 recyclables received at this location requires, the daily staging of a commercial truck
on a long-term basis, in lieu of a second recycling container as required by the permit.
Although some of these conditions were mitigated recently, such as the re -painting of
the outside of the containers and re -sodding of the landscape area directly adjacent to
the use, the high use of the facility still requires the continuous presence of a
commercial vehicle and/or the daily replacement of one or more of the large storage
containers, which creates visual blight on a prominent street frontage. Photographs of
the business reflect the fact that the commercial truck permanently staged at the site is
not kept in compliance with the requirement that the containers "maintain a minimum
setback of twenty (20) feet from the front property line." Further, as admitted by the
L permit holder, the use contributes to the vagrancy problem in the area by providing
money to transients and encouraging transients to rummage through trash in the
surrounding neighborhood, often for the purpose of buying liquor.
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 fully
rectify the problems to be in compliance with the minor conditional use permit
requirements to the satisfaction of the City. Specifically, the use has historically
received complaints from neighbors regarding noise, trash, odors and attracting.
vagrants. Further, staff has, over the course of the last year, had to devote significant
resources to gaining compliance with the Conditions of Approval applicable to the use
and to the Costa Mesa Municipal Code, while Garcia Recycling has refused to
acknowledge the actual existence of violations and has refused to comply with certain
requests, such as removal of the commercial truck and limiting the operations to the
container(s) as requested in writing by staff more than one year ago. Police resources
have also been utilized to an excessive degree patrolling the use and the surrounding
area due to transients attracted to the use.
4. Issues related to noise, odors, loitering, and property maintenance. are not
as 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 neighborhood recycling facilities which may be in parking lots pursuant to a minor
conditional use permit. The use was originally approved for a single, one -ton truck.
Photographs of Garcia Recycling reflect the current and, apparently long=standing, use
of a three -ton truck. The use as modified by ZA-92-10 permitted the use of two
containers for recycling. Garcia Recycling has admitted that two containers is not
sufficient to hold all of the recyclables that it accepts in one day.
/Ot
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
i,.... waste management. Specifically, revocation would not result in an unserved
"convenience zone" as defined by State Law because other recycling alternative
including, but not limited to, existing recycling center locations, provisions for reverse
vending machines, and other alternatives as specified in the bottle bill would continue to
be applicable. City staff has conferred with CalRecycle on the specific issue of whether
an unserved recycling area would be created if Garcia Recycling were no longer
operating at its currenflocation and-CalRecycle has specifically indicated that the
convenience area where Garcia Recycling is located would not become unserved.
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Additionally, per the letter submitted to the City 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 applications and
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 substantial evidence, the original operation has
expanded to the scale and intensity of a regional recycling facility, processing
approximately 4.2 million pounds of recyclable materials in 2008, based on the
applicant's testimony. 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 (Smart & Final'property) for the unloading of
recyclable materials by customers.
9. Based on the photographic and testamentary evidence:
a. The use is operating off-site (on the adjacent Smart and Final property) in
violation of ZA-89-25 and ZA-92-10, which was approved for the 739 West 19th Street
property (subject site) only.
b. 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-92-1,0: "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."
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fl. The site is being operated outside of the requested and approved
hours of operation (See Preliminary Environmental Description for ZA-92-10), 9 a.m. to
5 p.m. six days a week, and 9 a.m. to 4 p.m. on Sunday. The current operations begin
at 7:30 a.m., six days a week. No approval was ever given for this'change.
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."
10. The use is in violation of the City of Costa Mesa's Municipal Code, Title 20
(Property Maintenance) Standards, in that the use constitutes a nuisance, detrimental to
the health, safety, or welfare of the public and adjoining properties.
11. Based on substantial evidence, the original operation has significantly
expanded beyond the scale and intensity of a neighborhood recycling facility 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).
Although there was no evidence of a specific quantitative increase in operations, there
was substantial evidence, including the admission by Garcia Recycling, that current
operations total approximately 4.2 million pounds, that these operations are estimated
to be substantially larger than any other local recycling facility, that there is an incredibly
significant amount of recycling, that these operations are too large for the location, and
that the intensity of the current use was never contemplated in the approved use
permit(s). Furthermore, the original approval for the use was for operating hours only
from 10:30 a.m. to 5 P.M. six days a week and the modified approval was for operating
hours from 9 a.m. to 5 p.m. six days a week (9 a.m. to 4 p.m. Sunday). The current
1A/
begin at 7:30 a.m., six days a week. The original approval included only one attendant,
but numerous attendants now assist on a regular basis. At whatever point that the use
_.._ became a nuisance as to its intensity and quantity, it has become so with 'respect to its
current level at its present location.
12. Numerous individuals testified against the use and the significant negative effects
caused by the use in the adjacent and surrounding neighborhoods. Despite the claim
by Garcia Recycling that hundreds of individuals supported the use, only one individual
spoke at the public hearing in favor of the continued recycling use.
B. The project has been reviewed for 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.
l-57-