HomeMy WebLinkAbout14 - NB-1 - Request for Waiver of CC Apeal Fee - 1/17/2012CITY COUNCIL AGENDA REPORT.
MEETING DATE: JANUARY 17, 2012 ITEM NUMBER:
SUBJECT: REQUEST FOR WAIVER OF CITY COUNCIL APPEAL FEE FOR DEVELOPMENT
REVIEW DR -99-22 A2
DATE: JANUARY 5, 2012
FROM: DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: MEL LEE, AICP, SENIOR PLANNER
FOR FURTHER INFORMATION CONTACT: MEL LEE, Al CP, SENIOR PLANNER (714) 754-5611
mel.lee@costamesaca.gov
RECOMMENDATION:
Approve or deny a request to waive a $1,220 appeal fee for Development Review DR -99-
22 A2, to modify the winter holiday hours for Target Costa Mesa. The fee waiver is being
requested by Al Morelli, the appellant.
BACKGROUND:
On November 14, 2011, Planning Commission approved, in part and subject to conditions,
the applicant's request for a midnight opening on Black Friday, the day after Thanksgiving.
However, Planning Commission denied the request to further extend the remaining holiday
hours.
On November 21, 2011, Mr. Morelli submitted an appeal of the Planning Commission's
action to approve the midnight opening on Black Friday. In his attached appeal application,
he also requested a waiver of the $1,220 fee paid to file the appeal.
At the December 6, 2011 City Council meeting, Council directed staff to place the
appellant's fee waiver request on the January 17, 2012 City Council agenda for their
consideration. Fee waiver requests may be considered by the City Council on a case-by-
case basis. Actions on these requests are at the discretion of the City Council.
ALTERNATIVES
City Council may consider the following alternatives:
1. Waive the appeal fee as requested by the appellant. If the fee is waived, the City
will process and issue a refund check to the appellant for the full amount.
2. Deny the fee waiver request. The $1,220 appeal fee will not be refunded to the
appellant.
FISCAL REVIEW
The waiver of the appeal fee is a one-time waiver.
LEGAL REVIEW
No legal review is required.
CONCLUSION
The City Council may consider the appellant's request to waive the $1,220 appeal fee for
Development Review DR -99-22 A2.
MEL LEE, AICP KHANH NGUY N
Senior Planner Interim Devel a nt Services Director
ATTACHMENT: 1. Appeal and Fee Waiver Request
DISTRIBUTION: Chief Executive Officer
Assistant Chief Executive Officer
City Attorney
Interim Development Services Director
Public Services Director
Transportation Services Director
City Clerk (2)
Staff (4)
Planning Staff (8)
File (2)
Al Morelli
3412 Geranium Street
Costa Mesa, CA 92626
File: CC011712A ealFeeWaiverTar et.doc I Date: 12/07/2011 1 Time: 4:00 pm
Costa Mesa C. I.. r
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APPLICATION FORAPPEAL, REHEARING, OR REVIEW
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REQUEST FOR: ❑ REHEARING E APPEAL ❑ REVIEW.-
Decision
EVIEW.Decision of which appeal, rehearing, or review is requested: (give application number, if applicable, and the date of the
decision, if known.)
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Reasons for requesting appeal, rehearing, or review: •
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-22 A2", December 6, 2011
Supplemental Document: To Support The "Appeal To DR 99
Costa Mesa City Council Meeting:
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Fellow City Council: ' o
I am asking you to deny the request for extended hours regarding the Target toy E, grq!FU _3
for the trust that you will make the right decision. r Cn ;P� .
There is an old saying that a lie can go half way around the city while the truth is putting its
shoes on ----and as for Target store, a steady drumbeat of misinformation and mischaracterization
are given as often to hide the truth.
So instead of asking you to apply the moral, ethical and legal to deny Target store request for
modification to the original DR99-22 (land use restrictions); here are real and truthful facts for
why you should DENY Target with their request.
FACT: DR99-22 was recorded in the official records with the County of Orange, on April 18,
2000. Owner (Target) as signed agreed to execute and uphold all the land restrictions. Per
item 57 of conditions: "Hours of operations for the Target Store shall be limited,to between the
hours of 8:00 a.m. to 10:00 p.m., seven days a week".
FACT: Target management publicly acknowledged during year 2000 Planning and City Council
meeting/s that they have no intention to become super Target and not to open the store beyond
10:00 PM.
FACT: The Targets store at 3030 Harbor is now a Super Target, a change from the original as
claimed in year 2000. That's part Target, part grocery store. Groceries are not subject to sales
tag. The California Supreme Court ruled on July 13, 2007 that cities and counties can restrict
development of big -box superstores in order to protect local businesses. The decision upholds
the lower court ruling that allowed city to enact an ordinance prohibiting development of retail
stores larger than 100,000 square feet that use more than 5 percent of their space for grocery
sales. The 3030 Harbor Target store have a total of 143,500 square feet.
FACT: Per Planning Commission meeting on July 15, 2005, Target was DENIED their
request to open the store at 6:OOAM. Former planning commissioner Egan clearly expressed her
concerns: "As to the 6 am. opening, she felt it was unreasonable, to impose that on the residents
to the north. There is no reason they should bear that burden". Commissioner Carlich:"he felt
this application was overreaching." Vice Chair Hall: "said he agrees with this denial because the
residents next to this property have gone through an awful lot over the years and he saw no
reason to subject them to $other inconvenience".
At
FACT: the Target's management folks cannot be trusted. The record shows that Target
provided false and broken promises. Here are samples of Violation and Citation:
• 7/26/07- 5:45 AM Gardner blowing leafs, violation under item 30-DR99-22
• 7/26/06: 5:00 AM Noise complain, item 43 per DR99-22
• 11/22/2004, (Sunday) citation # 5751 issued for large semi truck-idling/loading by near
the north neighbor area, violation under item 10, ZA-99-47.
• 1/27/03 (1:00AM-3:00AM ) parking lot sweeper, violation, item 30 under DR99-22
• 9/14/02 Deliveries in front of the store -citation # 3427
FACT: Target store manager (Tim Kindig) has been the same manager since year 2000 and thus
he is fully aware of the conditions and land use restriction. However, he and or his staff do not
abide by the law and have so many times violated the land use restrictions.
FACT: the dollar value per each citation as given by code enforcement ranged from $75 to $200
per incident, with the latest 11/22/11 for $300.
FACT: Based on the evidence:in.
that "Target "store management h,
conditions of development agreement DR99-22 by order.
uring Commission Planning Nov.14, 20011, Mr. Al Morelli (party of interest /owner of
FACT; D
adjacent property) was given only 3 minutes to present his input. Mr. William Morelli asked the
planning Commission to yield his three minute time to A.Morelli and he was denied. However,
then thereafter Target were called back to answer question, while Mr. A. Morelli was not given
any opportuni for rebuttal or express clarification.
FACT: for a Costa Mesa citizen at large—to appeal the planning commission decision, where
the citizen (not the applicant) have to pay $1,220. Such $1',220 fee is prohibitive and restrictive
as most citizens cannot afford or are willing to pay. As with such, the voices of Cost Mesa
FACT: City of Costa Code of Enforcement is lacking oversight in relation to monitoring
Target store. Most citations were issued after neighbors calling the city to report violation. The
Code Enforcements staff does not work during night hours. Also, Police as they were often
called upon, do not normally report a given violation to the code enforcement. For the record,
Specific calls were to made the police over the years, however no records are shown.
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FACT: Regarding Target claim of being responsible corporation - March 11, 2011, Target
Corporation paid California $22.5 million Settlement for Environmental Violations: Stores
Illegally Dumped Pesticides and Hazardous Chemicals. The lawsuit included all 240 Target
stores in the State of California.
FACT: As discovered during the Planning Commission meeting, Target did violate the store
operating hours during year 2010 -2011 (for a full year and half). The store hours are limited
to 10:00 PM, where the Target violated the land use restriction by operating till 11 PM. (Refer to
citation49511). A citation fine of $150 was given for the violation that was occurring for a period
longer than a year, which by the way such dollar fine is less than a CM parking dog fine
violation.
FACT: Mel lee — CM City Sr. Planner, met with Target staff for his 2010 bi-annual review,
where he was made aware that Target was violating the store hours and he failed to report it
and act on it. During year 2000, and thereafter, Mel Lee has been responsible for conducting -
Tar et Store review since year 2000. Mel lee/city review giving Target good faith finding by his
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report is now questionable.
FACT: Holiday hours during year 2010. Target was operating till mid night 12:OOAM without
authorization-. The city failed to observe and report. (Refer to photo taken during this period).
FACT: During the planning meeting of Nov 14, 2011, where Target claimed they were abiding
by all the land restriction and rules, then a week later another violation did occur on Sunday
11/20/2011 (Refer to citation#9533)
FACT: Friday morning Nov 25, 20011, Target opened the store at midnight 12:OOAM and
thus violating the land use restriction regarding store hours, During the Nov 25 Friday early
morning, the police (Officer N. Brown) was present at 3030 Harbor and she can testify to the
record. She was informed (2:OOAM) of the violation by showing her the land use
restriction/hours document item 57 under DR99-22 (police case #11-12740).
FACT: Per original noise study (March 2, 2000), "Parking lot noise", as claimed in the study,
the homes to north to a have interior home noise level with 52 dBA. The study was based
exclusively with store hours limited by 10:00PM. However, Per CM City noise ordinance, the
noise cannot exceed 50dBA after 11:00.
FACT: As indicated per CM review March 8, 2000 traffic generation study were not conducted
claiming the proposed project is within the and below .30 maximum FAR and trip per hour
guidelines. However, several years later, the CM city while applying to Measure M funding
provided different data by presenting adverse impact on Harbor Blvd to support their request
for funding.
FACT: Per evidence in the record (code enforcement and police records) "Target `.`store
management has demonstrated lack of faith compliance with the terms and conditions of
development agreement DR99-22 by order.
FACT: Per city code sec 1315 — "All departments, officials and public employees of the city
invested with the duty or authority to issue permits or licenses shall conform to the provisions of
this Zoning Code and shall issue no permit or license for uses, buildings or purposes in conflict
with the provisions of this code; and any such permit or licenses issued in conflict with the
provisions of this Zoning Code shall be null and void. It shall be the duty of the development
services director to enforce the provisions of this Zoning Code ". Also, "any such permit or
licenses issued in conflict with the provisions of this Zoning Code shall be null and void.
FACT: For record, written request were made to city manager concerning the ongoing and
severity of violation as associated with Target, and thus the City has not willing to address the
null and void legal requirements, nor willing to file misdemeanor charges as required under
Criminal citation. Pursuant to State Government Code Sections 36900 and 36901
FACT: Significant changes had occurred since year200% at 303Q Harbor location, reegardmg, , s
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the original land development. Thus the city had -failed", 4 re-com are` ear 2000formerF
analysis to today current data. All new reviews should match and re -address the negative
declaration data, CEQA, EIR and compare to the originally specified by staff reports during
year 2000.
FACT: Target management and city staff are compensated and paid to present their
organization. However, Mr. Morelli is not paid to defend to protect his property rights. Thus Mr.
Morelli efforts to deal with CM city had cost him time, money ($1,220 to appeal) and also
undue hardship. Mr. Morelli asked the City Clerk for fee waiver and thus he was denied.
I am asking you to deny the request for extended hours regarding the Target Store. Deny
the adoption of any modifications to the original DR99-22. Also, constrain any and all
future reviews to DR99 22 as it should be legally binding per agreed and recorded with
the land deed use agreement for the 3030 Harbor Blvd. property.
Based on the evidence and facts, Target has shown their lack of compliance. In addition, I
am asking the city officials to apply the governing laws per city code Sec 13-16
(Enforcement) and file criminal charges against Target management for present and any
future code violations.
Al Morelli
11/26/2011