HomeMy WebLinkAbout51-Development Services
,
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: Development Services
Subject: Development Permit Type I No. 06-
054 (Appeal No. 06-13) - Appeal of the
Planning Connnission revocation of a permit to
operate a small container recycling facility at
1620 W. Baseline Street in the CG-I,
Commercial General land use district.
From: Valerie C. Ross, Director
Date: November 2, 2006
MCC Date: November 6, 2006
Synopsis of Previous Council Action: None
Recommended Motion: (REVISED)
That the hearing be closed and that the Mayor and Common Council:
1. Grant Appeal No. 06-13, thereby overturning the Plami.ing Commission's revocation of
Development Permit Type I No. 06-054; and
2. Direct staff to monitor compliance with conditions of approval placed on DPI No. 06-054, and to
schedule a review by the Planning Connnission after six months, or upon discovery of any failure to
comply with the conditions of approval, whichever occurs first.
Originall Alternative Motion:
That the hearing be closed and that the Mayor and Common Council deny Appeal No. 06-13 and uphold
the Planning Commission's revocation of Development Permit Type I No. 06-054.
~ ~dflj
feY" : Valerie C. Ross
Contact person:
TPTTi R.hh.l rityPhnn~r
Phone:
1R4-S0S7
Supporting data attached:
Staff Reooct
Ward:
6
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (Acct. No.)
(Acct. Description)
Finance:
If I~ /06
,
Council Notes:
'Aw.r ~/lg~ -tf.AY:t- :j{VnJ
/ Agenda Item No.
'51
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CITY OF SAN BERNARDINO
Development Services Department - Planning Division
Interoffice Memorandum
TO: Mayor and Common Council
7?C~f1v:
FROM: Valerie C. Ross, Development Services Director
SUBJECT: Supplemental Staff Report - Item 51 November 6,2006
Appeal of the Revocation of Development Permit Type I No. 06-054
E&M Recycling - 1620 W. Baseline Street
DATE: November 2,2006
COPIES: James Penman, City Attorney; Rachel Clark, City Clerk; Fred Wilson, City
Manager; Henry Empeiio, Senior Deputy City Attorney
The revocation hearing originally scheduled for October 16, 2006 has been continued to
November 6, 2006 as Item 51. By this memo, I report a status update and submit an alternative
motion for consideration.
Status Update:
The Planning Commission revoked Development Permit Type 1 No. 06-054 on August 22, 2006
due to conditions at the project site, failure to comply with the conditions of approval and
impacts of the operation on the surrounding neighborhood. Since the Planning Commission
revocation hearing, the operator, E&M Recycling, has brought the site into compliance by
installing a new modular recycling kiosk, removing an illegal sign, removing graffiti at the site
and keeping the site and surrounding area clear of debris and abandoned shopping carts.
Recommendation:
Staffis submitting two alternative motions for the Council's consideration upon hearing the
appeal. If the Council should grant the appeal, we recommend a directive for staff to monitor the
site and return to the Planning Commission for reconsideration after a period of six months, or
sooner if the operator fails to comply with the conditions of approval of the Development Permit.
11/6/06
Agenda Item No. 51
stollima Servius
1223 Bronwyn Drive
Corona, CA 92812
Date Invok:9 No
512012006 Box 17
Bill To:
ElM Recycling Company
526 South A1amllda Stnlet
Los Angeles. CA 90013
P.O. 0 erma
"nlily De&crI Un ount
1 Ralph 216" widw KIOSK, 60" deep, $6,200.00 $ 6.200.00
X 1117' high, 36" wide. 1/4"lloor
14GA walla, dual 8Iilfong dOOlll.
38" wide rur doorS for rcll.off
(2) ~ X 4 ' display windows
loCk 8nd pleXigl8ss
1 On .ne retrofit to cuatomenl spec. $ 240.00 $ 240.00
Freight
Tax
$
400.00
480.05
7.75% $
l'rotal
I $ 7,320.05 ,
fnf"p.rl into Record at
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City Clerk/CDC Secy
City of San Bernardino
OFFICE OF THE CITY CLERK
RACHEL G. CLARK, CM.C. . CITY CLERK
300 North "D" Street. San Bernardino' CA 92418-0001
909.384.5002' Fax: 909.384.5158
www.sbcity.org
,.
November 17,2006
A. Patrick Munoz
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626-1950
Dear Mr. Munoz:
At the meeting of the Mayor and Common Council held on November 6, 2006, the following
action was taken relative to the appeal of the Planning Commission's revocation of a permit to
operate a small container recycling facility at 1620 W. Baseline Street:
That the hearing be closed; and that the Mayor and Common Council grant Appeal
No. 06-13, thereby overturning the Planning Commission's revocation of
Development Permit Type 1 No. 06-054; and direct staff to monitor compliance
with conditions of approval placed on DPl No. 06-054, to include Development
Services staff monitoring the site no less than once a week and notifying the
applicant in writing that failure to comply will result in suspension of the permit
and that staff report back to the Mayor and Council in six months.
If we can be of further assistance, please do not hesitate to contact the City Clerk's office.
Sincerely,
/; 1,
U\~i.1..z ,!j. Ci<lAA-
Rachel G. Clark
City Clerk
RGC:lls
pc: Eugene Vortman, E&M Recycling, 526 S. Alameda Street, Los Angeles, CA 90013
Development Services
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity. Accountability' Respect for Human Dignity. Honesty
RUTAN
Lona N. Laymon
Direct Dial: (714) 641-5100
E-mail: llaymon@rutan.com
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ATTORNEYS AT LAW
2006 NOli -I MIlO: 20
October 31, 2006
San Bernardino City Clerk's Office
Attn: Sandra Medina, Asst. City Clerk
300 North "D" Street
San Bernardino, CA 92418-0001
Re: Appeal 06-13: Development Permit Type 1 No. 06-054, Proposed Revocation
Dear Ms. Medina:
This office represents the appellant in the above-named appeal, which is scheduled for
hearing before the City Council at its November 6, 2006 regular meeting. I have enclosed copies
of a correspondence relating to the appeal to be distributed to the City Council members with
their regular agenda packets. Thank you for you assistance in distributing these packages, If you
have any questions, please do not hesitate to contact me at (714) 662-4622.
Very truly yours,
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Lona N. Laymon
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Enclosures
Rutan & Tucker, LLP I 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626
PO Box 1950, Costa Mesa, CA 92628-1950 I 714-641-5100 I Fax 714.546-9035
Orange County I Palo Alto I www.rutan.com
1068/024012-0005
758997.01 alO/31/06
.
RUTAN
A. Patrick Munoz
Direct Dial: (714) 662-4628
E-mail: pmunoZ@rutan.com
ATTORNEYS AT LAW
October 31, 2006
The City of San Bernardino
Attn: Honorable City Council Members
300 North "D" Street
San Bernardino, CA 92418
Re: Appeal 06-13: Development Permit Type 1, No. 06-054
Proposed Revocation
To the Honorable Members of the City Council:
This office represents E&M Recycling Company ("E&M") in connection with its
appeal to the San Bernardino City Council with regard to the proposed revocation of
Development Permit No. 06-054 (the "Permit"). The Permit allows E&M to use a
portion ofland at 1620 Baseline Street (the "Site") for the operation ofa recycling facility
(the "Facility"). The basis for the proposed revocation of E&M's Permit was a
determination by City Planning that E&M had not fulfilled certain conditions of approval
for the Permit. However, City Planning's determination in this respect is patently
unreasonable given that E&M was provided with little more than 30 days to fulfill these
conditions, some of which entailed significant property and Facility improvements.
City Planning also proposes that E&M's Permit must be revoked because its
Facility has caused an increase in shopping cart abandonment and debris on the Site. As
more fully set forth below, however, E&M cannot be held responsible for the unsolicited
acts of its patrons and/or the neighborhood populace as a matter of law. Moreover, City
Planning's proposition in this vein is factually untrue, as photographs taken of the Site
prior to the Facility's construction prove that debris, shopping carts and vandalism were
present on the Site before the E&M Facility was ever constructed. Indeed, the true facts
are that E&M's presence on the Site has improved, rather than degraded, the Site's
condition.
Rutan & Tucker, LLP I 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626
PO Box 1950, Costa Mesa, CA 92628-1950 I 714-641-5100 I Fax 714-546-9035
Orange County I Palo Alto I www.rutan.com
1068/024012-0005
758642.03 aJO/31/06
.
,RUTAN
ATTORNEYS AT LAW
The City of San Bernardino
October 31, 2006
Page 2
A. Appendix Of Exhibits.
E&M respectfully offers the following exhibits, attached hereto, as evidence in
support of its appeal:
. Exhibits A through C: Photographs taken prior to the construction of E&M's
Facility and demonstrating the pre-existence of abandoned shopping carts,
debris and graffiti on the Site.
. Exhibit D: Photograph of E&M's recycling kiosk installed on or before
September 18, 2006.
. Exhibit E: Photographs of property conditions surrounding the Site.
. Exhibit F: Photograph of the informational sign erected on E&M's Facility
pursuant to the Permit's conditions of approval.
B. Basic Legal Standards: E&M's Vested Rights Under The Permit Can
Only Be Revoked Upon A Reasonable Basis Or A Compelling Necessity.
Court's Will Overturn A Permit Revocation Where Alternate
Remedies Are Available.
The proposed Permit revocation significantly oversteps the City's legal authority to
regulate a vested business operation. "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." (Goat Hill Tavern v. City of
Costa Mesa (1992) 6 Cal.App.4th 1519, 1530.) Unlike a decision to deny or approve a
permit in the first place, local agencies are substantially limited in their power to revoke
the operational permits for a vested property right. (Id. [" Once a use permit has been
properly issued, the power of a municipality to revoke it is limited. "].) Indeed, when
a local agency chooses to revoke a permit for vested uses, a reviewing court will apply
heightened scrutiny to the evidence both supporting and refuting the revocation. (Id.)
The basic concept of "reasonableness" also must guide any local agency decision
affecting a vested property right. A vested right cannot be revoked unless the City proves
that the permittee failed to comply with "reasonable terms or conditions expressed in the
permit granted. . . or there is a compelling public necessity." (Id. [emphasis added].)
Notably, a "compelling public necessity warranting the revocation of a use permit for a
lawful business may exist if the conduct of a business as a matter of fact constitutes a
1068/024012-0005
758642.03 al0/31/06
,RUTAN
ATTORNFYS AT LAW
The City of San Bernardino
October 31, 2006
Page 3
nuisance and the permittee refuses to comply with reasonable conditions to abate the
nuisance." (Bauer v. City of San Diego (1999) 75 Cal.App.4th 1281, 1295 [quoting
Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.
4th at pp. 391-392, fn. 5].)
With regard to E&M's Permit, the City's proposed revocation is not just legally
unreasonable, there simply is no evidence to show that E&M "refuses to comply" with its
Permit conditions. Indeed, E&M has already exercised diligent efforts to implement the
Permit conditions. The revocation of E&M's vested property right in a manner that
oversteps the bounds of reasonableness, or is unsupported by evidence, constitutes a
violation of civil rights and warrants reversal by a judicial writ of mandate.
Moreover, outright revocation of an approved permit will only be tolerated where
there are no other means of obtaining compliance with the permit conditions. In this
vein, courts will apply the strictest scrutiny against an administrative decision to revoke a
vested permit:
"[I]n order to justify the interference with the constitutional
right to carry on a lawful business it must be clear the public
interests require such interference and that the means
employed are reasonably necessary to accomplish the purpose
and are not unduly oppressive on individuals." Moreover,
". . . it is clear revocation of a use permit could have the
effect of putting the licensee completely out of business. It
is consequently a very harsh remedy which requires the
strictest adherence to principles of due process. Whenever
alternate remedies can achieve the same goal, such as the
imposition of additional conditions or controls, these
avenues ought to be pursued iffeasible."
(Bauer, supra, at 1294-1295 [quoting, Korean American, supra, at 392-393.) Thus, the
City Council must find that revocation is the only means of dealing with E&M.
With these fundamental legal principles in mind, it becomes clear that the
August 22, 2006 findings and determination of the City Planning Commission to revoke
E&M's Permit must be reversed for the following reasons:
1068/024012-0005
758642.03 a10/31/06
, RUTAN
ATTORNFYS AT LAW
The City of San Bernardino
October 31, 2006
Page 4
C. The Planning Commission's Finding Of "Changed Circumstances"
Warranting Permit Revocation Are Not Supported By Either Fact Or
Logic.
The Planning Commission's decision to revoke the Permit was apparently based,
in part, upon the proposition that circumstances have changed so that one or more of the
findings supporting the Permit's initial approval can no longer be made. This finding is
untenable in both evidence and logic.
At the time that E&M was notified of the City's decision to revoke the Permit, its
Facility had been operating for little more than one month. Surely, the conditions in the
area of the Site had not changed so dramatically within just one month as to make the
Permit approval findings inapplicable. Moreover, no evidence has been presented to
demonstrate a change in neighborhood circumstances reaching the requisite level of
"compelling public necessity" mandated by the above-cited legal authorities.
Furthermore, circumstances relating to the Permit approval have not
changed at all. The complained-of conditions of shopping cart abandonment, debris
and graffiti pre-existed the construction of E&M's Facility. At the August 22, 2006
Planning Commission meeting, City Staff particularly claimed that shopping carts had
"never" been abandoned on the Site prior to E&M's operations. It so happens, however,
that E&M took photographs of the Site prior to opening its Facility:
. Attached hereto as Exhibit A is a true and correct photograph of the Site dated
June 6, 2006 (approximately one month before E&M constructed its Facility).
Exhibit A clearly depicts the presence of an abandoned shopping cart on the
Site prior to the Facility's opening.
. Attached hereto as Exhibit B is a true and correct photograph of the Site dated
March 13, 2006. This photograph depicts the presence of graffiti on the Site
several months prior to the Facility's construction.
. Attached hereto as Exhibit C are further photographs of the Site dated June 6,
2006. These photographs depict debris and abandoned items located on the
Site prior to the Facility's opening.
These photographs unequivocally disprove City Planning's claim that E&M has "caused"
conditions of debris or abandonment on the Site. These were all pre-existing conditions
for which E&M cannot be held responsible.
1068/024012-0005
758642.03 alO/31/06
.
, RUTAN
ATTORNFYS AT lAW
The City of San Bernardino
October 31, 2006
Page 5
Notwithstanding pre-existing conditions of the Site and surrounding areas,
E&M has extended every reasonable effort to improve the Site's condition and
become a constructive member of the surrounding business community. Attached
hereto as Exhibit D is a true and correct photograph of E&M's current Facility. We
believe that this photograph demonstrates a dramatic improvement to the Site in
comparison to the pre-existing conditions shown in Exhibits A through C. Furthermore,
the Facility is dramatically cleaner and more presentable than surrounding areas of the
neighborhood in general. Exhibit E contains photographs of several areas surrounding
the Site. As demonstrated by Exhibit E, surrounding properties have been constructed
and maintained in a substantially inferior condition when compared to E&M's Facility.
D. The City Cannot Base A Decision To Revoke The Permit Upon The
Unreasonable Expectation That E&M Would Have A Modular Kiosk
Constructed On The Site Within Just 30 Days Of Permit Approval.
Given Reasonable Time, This Condition Was Fulfilled.
As to any conditions relating to a "modular kiosk" to be installed at the Site, it
bears emphasis that the Facility has only been in operation since July I, 2006. Thus, as
of the Planning Commission's August 22nd decision to revoke E&M's Permit, the Facility
had only been erected for little more than one month. E&M was simply not given the
time necessary for the manufacturing and placement of the kiosk. The City's expectation
that E&M would manufacture and install a modular kiosk within just little more than one
month from the start of operations is patently unreasonable under the legal standards
cited above.
Moreover, the modular kiosk has been installed at the Site for some time now.
True and correct photographs of the kiosk dating from September 18, 2006 are attached
hereto as Exhibit D. All that was required for E&M to complete this installation (and
thus fulfill the condition of approval) was a reasonable amount of time to do so. Given
E&M's completion of the kiosk, the City is now foreclosed from finding that revocation
is the only feasible means of enforcing this condition.
E. In Any Case, E&M Cannot Legally Be Held Responsible For The
Unsolicited Acts Of Its Patrons Or The Neighborhood Populace.
The Permit cannot lawfully be revoked as a result of actions outside of E&M's
control. Thus, to the extent that E&M's reasonable efforts have been of no avail against
the unsolicited actions of its patrons or other persons, there is not lawful basis for Permit
1068/024012-0005
758642.03 alO/31/06
. RUTAN
ATTORNFYS AT I.AW
The City of San Bernardino
October 31, 2006
Page 6
revocation. Likewise, the City's reliance upon findings relating to the "appearance" of
certain patrons at E&M's Facility has no support in the law.
A use permit simply cannot be lawfully revoked based upon the unsolicited acts of
patrons that are outside the reasonable control of a business operator. (Tarbox v. Board
of Supervisors (1958) 163 Cal.App.2d 373.) Again, the Planning Commission's
revocation decision apparently relies upon the fact that shopping carts have been
abandoned around the Site. At the August 22nd Planning Commission meeting, the
evidence cited by City Planning in support of such finding consisted entirely of after-
hours activities and/or shopping carts abandoned as much as one block away from E&M's
Facility. No evidence was presented to demonstrate that E&M is, in fact, the cause of
shopping cart abandonment on and around Baseline Street. Indeed, as noted above, the
fact that shopping carts were abandoned on the Site prior to E&M's presence
affirmatively disproves this finding. (See, Exhibit A.) Moreover, despite an
acknowledgement that E&M has extended efforts to remove abandoned shopping carts,
City staff and the Planning Commission apparently take the position that no efforts
exerted by E&M can ever satisfactorily prevent the presence of shopping carts in the
neighborhood. This position, however, directly and clearly contradicts any legal standard
of reasonableness.
F. All Other Factual Bases For The Planning Commission's Decision To
Revoke E&M's Permit Are Devoid Of Factual Support.
Several factual bases for the Planning Commission's decision to revoke E&M's
Permit were disproved at the August 22, 2006 hearing:
. At the Planning Commission hearing, it was alleged that the Facility
failed to post a sign communicating its name, hours of operation and
telephone number. However, E&M provided evidence that such a sign
had been posted at the Site from the start of operations. (See,
Exhibit F .) This evidence was not controverted.
. It was also alleged that E&M had placed an illegal "come on" sign at its
Facility. However, it was uncontroverted that such sign had been
removed from the Site several weeks before the Planning Commission
hearing. Thus, any findings based upon such a "come on" sign were
cured and could not provide a valid and lawful basis for revocation of
the Permit.
1068/024012..()OOS
758642.03 alO/31/06
, RUTAN
ATTORNEYS AT LAW
The City of San Bernardino
October 31, 2006
Page 7
. Any and all findings relating to alleged graffiti at E&M's site were
likewise unsupported by any reliable evidence. At the Planning
Commission hearing, E&M demonstrated that (I) the graffiti at issue
was located on property that did not belong to E&M and/or was not
under E&M's control; and (2) that such graffiti was pre-existing long
before E&M commenced operations. (See, Exhibit B.) The City cannot
lawfully revoke E&M's Permit as a result of pre-existing graffiti located
upon the property of others.
There is not substantial evidence in the record to warrant revoking E&M's Permit.
For this reason, and the others contained herein, the City Council should overturn the
Planning Commission's revocation decision.
E&M is committed to working with the City to resolve any outstanding issues and
looks forward to working with City staff to craft reasonable solutions to the City's
concerns. Please understand it is not our client's desire to engage in litigation with the
City. While E&M simply seeks that which is fair and reasonable, we will advise our
client to do so through the appropriate legal channels if necessary.
Very truly yours,
RUTAN & TUCKER, LLP
fl~~
A. Patrick Munoz
APM:lnl
Encls.
1068/024012.0005
758642.03 a 10/3 1/06
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross. Director
Subject: Development Permit Type I No. 06-
054 (Appeal No. 06-13) - Appeal of the
Planning Commission revocation of a permit to
operate a small container recycling facility at
1620 W. Baseline Street in the CG-l,
Commercial General land use district.
Dept: Development Services
Date: September 25, 2006
MCC Date: October 16,2006
Synopsis of Previous Council Action: None
Recommended Motion:
That the hearing be closed and that the Mayor and Common Council deny Appeal No. 06-13 and
uphold the Planning Commission's revocation of Development Permit Type I No. 06-054.
JLf1A;1/ {/, ~ ffl-;
Valerie C. Ross
Contact person:
Terri R~hh~l f:ity Phnne.r
Phone:
1R4-~O~7
Supporting data attached:
Staff Report
Ward:
6
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (Ace!. No.)
(Acc!. Description)
Council Notes:
jJ/lMH A .(Mj1
Finance:
IO!t~/O(P # 3s-
( I '
Agenda Item No.
51
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Mayor & Common Council Meeting of October 16, 2006
SUBJECT:
Development Permit Type 1 No. 06-054 (Appeal No. 06-13)
APPELLANT:
Eugene Vortman
E&M Recycling
526 S. Alameda St.
Los Angeles, CA 90013
(213) 595-5000
REPRESENTATIVE:
A. Patrick Munoz
Rutan & Tucker, LLP
611 Anton Blvd. Ste. 1400
Costa Mesa, CA 92626-1950
(714) 662-4628
BACKGROUND
The subject of this appeal is the revocation of Development Permit Type 1 No. 06-054 by the
Planning Commission on August 22, 2006. The Development Permit, authorizing operation of a
small container recycling facility in the parking lot of Jimmy's Food Store at 1620 West Baseline
Street, was approved by the Director on May 12,2006. Soon after the facility started operating in
July 2006. surrounding property owners began to complain about conditions at the site, including
loitering. accumulation of debris and abandoned shopping carts. Staff investigated, confirmed the
reported conditions and also noted an illegal sign, use of a storage receptacle other than the
approved kiosk and graffiti on the trash enclosure that should have been removed. Staff
photographed the site on various occasions to document the conditions, then the operator, E&M
Recycling, was given notice of a revocation hearing before the Planning Commission.
The Planning Commission Staff Report (Exhibit I) contains a location map, site photos and a
detailed discussion of the conditions that warrant revocation of the Development Permit, which
can be summarized as follows:
1. The findings for approval of DPI No. 06-054 can no longer be met because the facility
is not compatible with surrounding properties, as evidenced by immediate complaints
from surrounding property owners about the impacts on the neighborhood.
2. The operator has not complied with several conditions of approval, including use of an
illegal sign, failure to install the kiosk structure in accordance with the project plans and
failure to maintain the site in a clean and orderly condition.
3. The facility constitutes a public nuisance due to loitering and abandonment of shopping
carts on site, on surrounding properties and in the public right-of-way.
On August 22, 2006, the Planning Commission considered the case and revoked the
Development Permit. The revocation action was unanimous, with Commissioners Coute, Durr,
Heasley, Mulvihill, Munoz and Saurbrun voting in favor. Commissioners Enciso, Longville and
Rawls were absent. On September 5, 2006, the appellant filed Appeal No. 06-13 seeking to
overturn the Planning Commission decision.
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Appeal No. U6-13
Hearing Date: October 16. 2006
Page 2
The appeal statement claims that revocation is not warranted because the operator has removed
the illegal sign and has installed the modular kiosk, as required. The appeal statement suggests
that it was unreasonable for the City to expect the Kiosk to be installed prior to commencement
of the operation, and states that the operator should not be held responsible for actions of the
recycling patrons, such as loitering and abandonment of shopping carts, because these actions are
outside of the operator's control.
Staffs response to the appeal is that actions taken by the appellant to comply with conditions of
the Development Permit after revocation proceedings commenced are not convincing signs of
on-going compliance and compatibility with the surrounding neighborhood. The illegal sign has
been removed, but it is a portable sign that could reappear at any time. The modular kiosk was
finally installed, but only under threat of permit revocation. The problem with shopping cart
abandonment continues, and the appellant states that the operator cannot control the situation.
Section 19.44.110 of the Development Code clearly states that non-compliance with any
condition of approval is grounds for revocation of the permit. Conditions of approval #7 and #8
clearly define permitted and prohibited signage. Condition #22 specifies the approved kiosk.
Conditions #15 and #16 establish standards for site maintenance. From the first day of operation,
the facility did not comply with the conditions of approval. The Development Code does not
provide for a grace period for uses to eventually come into compliance with Code requirements
or conditions of approval. In conclusion, staff contends that the appellant has not presented
evidence to support the argument that the Development Permit should not be revoked. Therefore,
staff recommends that the Mayor and Common Council uphold the action of the Planning
Commission to revoke Development Permit Type I No. 06-054.
FINANCIAL IMPACT
No impact to the City of San Bernardino.
RECOMMENDATION
That the hearing be closed and that the Mayor and Common Council deny Appeal No. 06-13 and
uphold the Planning Commission's revocation of Development Permit Type I No. 06-054.
EXHIBITS: 1.
2.
August 22, 2006 Planning Commission Staff Report
Appeal
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EXHIBIT 1
SUMMARY
CITY OF SA.I'; BERNARDINO PLANNING DIVISION
CASE:
. AGENDA ITEM:
HEARING DATE:
WARD:
Development Pennit Type I No. 06-054 - Revocation
3
August 22, 2006
6
APPLICANT:
Eugene Vortman
E&M Recycling
526 S. Alameda St.
Los Angeles, CA 90013
(213) 595-5000
REQUESTILOCATION:
PROPERTY OWNER:
Mary Townsend
1445 N. Pepper Ave.
Rialto, CA 92376
(909) 889-0597
A staff-initiated proposal to revoke Development Pennit (Type I) No. 06-054 for the small
container recycling facility located in the parking lot of Jimmy's Food Store, at 1620 West
Baseline Street in the eG-1, Commercial General land use district (APN: 0143-161-20).
CONSTRAINTS/OVERLAYS:
None
ENVIRONMENTAL FINDINGS:
o Not Applicable
[8J Exempt from CEQA, Section 15321 - Enforcement Actions by Regulatory Agencies
o No Significant Effects
o Previous Negative Declaration
o Potential Effects, Mitigation Measures and Mitigation Monitoring/Reporting Program
STAFF RECOMMENDATION:
o Approval
[8J Revocation
o Denial
[J Continuance to:
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DevelOpment Permit Type I No.06-054
Revocation Hearing: August 22. 2006
Page 2
REOUEST & LOCATION
Staff requests that the Planning Commission consider revocation of Development Permit Type I
No. 06-054, a permit for a small container recycling facility operating in the parking lot of
Jimmy's Food Store, an existing market located at 1620 West Baseline Street (Attachment A-
Location Map). The site is a multi-tenant commercial center on the north side of Baseline Street,
approximately 300 ft. west of Medical Center Drive, in the CG-I, Commercial General land use
district. In addition to the market and the recycling facility, the site is also occupied by a taco
stand, a barber shop and a beauty salon (Attachment B - Site Plan).
SETTING & SITE CHARACTERISTICS
The recycling facility consists of a metal container, approximately 8 ft. in height, 18 ft. wide and
30 ft. long. As a condition of approval ofDPI 06-054, the applicant resurfaced and re-striped the
portion of the parking lot where the recycling facility is located. Surrounding land uses include
Martin Luther King Middle School to the north, vacant land in the CG-I land use district to the
west and a vacant commercial building in the CG-I district to the east. To the south, there are
various commercial uses on the south side of Baseline Street, including Bobby Ray's Barbecue
Restaurant.
CALIFORNIA ENVIRONMENTAL OUALITY ACT (CEOA)
The proposed revocation of Development Permit Type I No. 06-054 would be exempt from
environmental review, pursuant to Section 15321 of the CEQA Guidelines - Enforcement
Actions by Regulatory Agencies.
BACKGROl':\'D
E&M Recycling Company (E&M) previously operated a small container recycling facility at the
E Street Market, located at 1156 N. 'E' Street, under Development Permit Type I No. 04-029
(DPI 04-029). The Planning Commission revoked DPI 04-029 on May 17, 2005, due to the
condition of the facility, including accumulation of litter, debris and shopping carts, and loitering
by transients. E&M set out to find another location in the City of San Bernardino.
On March 15, 2005, E&M submitted another Development Permit application (DPI 06-054),
with a letter of intent that promised a recycling kiosk "engineered to ensl/re the safe. seCl/re and
aesthetical~\' pleasant collection of consl/mer materials while maintaining the conforming look of
lhe comml/nily and the property it resides on. .. (See Attachment D). DPI 06-054 was approved
on May 12, 2006. Since the recycling facility began to operate at 1620 W. Baseline Street,
neighboring business owners have become very concerned about conditions at the project site.
The Sixth Ward Councilman has received complaints about loitering, debris and abandoned
shopping carts on the site and in the surrounding neighborhood.
Developmelll Permit Type J No.06-054
Revocation Hearing: August 22. 2006
Page 3
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Staff investigated the citizen complaints, found several conditions warranting revocation of
Development Permit Type ] No. 06-054, and provided notice of a revocation hearing to the
facility operator (E&M) and to the owner of the ] 620 W. Baseline Street property.
FINDINGS AND ANALYSIS
Pursuant to Section ]9.44.110 of the Development Code, a Development Permit may be revoked
by the review authority if anv of the following findings can be made:
1. Circumstances have changed so that one or more of the findings for approval of DP 1 06-054, as
listed in Section 19.44.060 of the Development Code, can no longer be made.
One of the findings required for approval of a Development Permit is that the proposed use
would be hannonious and compatible with existing and future land uses in the general area.
When DPI 06-054 was approved, staff expected the smalI container recycling facility to be
compatible with commercial uses in the surrounding CG-], General Commercial land use
district. However, since the facility has opened, nearby businesses have complained about
the condition of the project site, loitering on the project site and visual blight on Baseline
Street caused by patrons of the recycling facility. Therefore, the required finding of
compatibility with surrounding land uses can no longer be made.
.e 2. The Development Permit was obtained by misrepresentation or fraud.
Staff is not aware of any fraud perpetrated to obtain the Development Permit. However, the
application for DP] 06-054 did misrepresent the style of the recycling kiosk. The elevations
and example photo submitted with theapp]ication represented a modular kiosk unit with
some articulation, including a f~e with a "roof-line" and faux "windows." The recycling
receptacle installed at the site consists of two rectangular metal containers with no
architectural features whatsoever.
3. The use for which the Development Permit was granted has ceased or has been suspended for
six or more calendar months.
This finding does not apply to DP] 06-054.
4. One or more of the conditions of approval of the Development Permit (DP 1 06-054) have not
been met.
Condition #7 of the Deve]opment Permit requires a separate permit for any proposed
signage. It also requires that the name and telephone number of the facility operator and the
hours of operation be posted on the recycling kiosk. To date, no sign permit application has
been submitted, and the required contact information has not been posted.
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Development Permit Type I No. 06-054
Revocation Hearing: August 22. 2006
Page 4
Condition #8 of the Development Permit prohibits the use of portable "corne on" signs,
which are prohibited by the Municipal Code (Sec. 19.22.060). Since the recycling facility
opened, an illegal portable sign, approximately six feet in height, has been placed adjacent to
the sidewalk on Baseline Street.
Condition # 12 of the Development Permit requires removal of graffiti within 24 hours of its
occurrence. When staff first visited the site to investigate complaints on July 30, 2006, the
trash enclosure adjacent to the recycling kiosk was marked with graffiti which has not been
removed to date.
Condition # 16 of the Development Permit prohibits outdoor storage of materials and
requires the operator to prevent dumping or dropping off of materials when no attendant is
present. Although recycling materials have been properly stowed each day, shopping carts
left by patrons have been allowed to accumulate on site and on adjacent properties.
5. The use is illl'iolatioll of allY statute. ordinance, law or regulation.
As mentioned under Finding #4, the portable "corne-on" sign placed adjacent to the
sidewalk on Baseline Street (Attachment C - Site Photos) is prohibited by the sign
regulations codified in Section 19.22.060 of the City of San Bernardino Development Code.
The prohibited sign has been displayed in conj unction with the recycling facility, in
violation of the City ordinance since the use was established at 1620 W. Baseline Street.
6. Tlte recyclingfacility permitted by DP 1 05-06 is detrimental to the public health. safety or
welfare or constitutes a nuisance.
The accumulation of abandoned shopping carts on the project site and in the public right-of-
way on Baseline Street constitutes a public nuisance and a safety hazard. Loitering on the
project site constitutes a nuisance to potential patrons of adjacent businesses.
CONCLUSION
Five of the six conditions that warrant revocation of Development Permit Type 1 No. 06-054
have been found to exist. Anyone of these findings would be sufficient grounds to revoke the
Development Permit.
RECOMMENDATION
Staff recommends that the Planning Commission revoke Development Permit Type 1 No. 06-
054 based on the findings contained in this staff report.
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Development Permit Type I No. 06-054
Re,'ocation Hearing: August 22. 2006
Page 5
Respectfully Submitted,
V4lJAiuu. R~
Valerie C. Ross
Director of Development Services
-/P?~/:4
T em Rahhal
Deputy Director/City Planner
Attaclunent A
Attachment B
Attaclunent C
Attaclunent D
Location Map
Site Plan
Site Photos
DPI 06-054 Application, Approval Letter and Conditions of Approval
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A TT ACHMENT A - LOCATION MAP
1620 W. Baseline Street
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A TT ACHMENT C - SITE PHOTOS
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E&M Recycling: 1620 W. Baseline
August 1, 2006, 6: 17 p.m.
Shopping Carts abandoned adjacent to the site on Baseline
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E&M Recycling: 1620 W. Baseline
July 31, 2006, 7:25 p.m.
Shopping cart abandoned on site
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E&M Recycling: 1620 W. Baseline
August I, 2006, 6:21 p.m.
Shopping carts abandoned on site and loitering on site
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E&M Recycling: 1620 W. Baseline
August 2, 2006, 6:41 p.m.
Shopping cart abandoned west of the site on Baseline
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E&M Recycling: 1620 W. Baseline
July 30, 2006, 4:21 p.m.
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July 30, 2006, 4:22 p.m.
Illegal sign on Baseline frontage
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. ATTACHMENT D
DEVELOPMENT SERVICES DEPARTMENT
300 North "D" Street. San Bernardino. CA 92418-0001
Planning & Building lI09.384.5057 . Fax: 909.384.5080
Public WorkslEngineering 909.384.5111 . Fax: 909.384.5155
www.sbcity.org
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May 12, 2006
Eugene Vortman
526 S. Alameda SI.
Los Angeles. CA 90013
RE: Development Permit Type] No. 06-054 - 1620 W. Baseline
(APN: 0143-161-20-0000)
Dear Mr. Vortman;
Planning staff has approved Development Permit] (DPl) No. 06-054, a request to
establish a small container recycling facility, based on the Findings of Fact in the
Development Code 919.44.060 and subject to the enclosed Conditions of Approval.
The decision of the Director is final unless a written appeal is filed, with the appropriate
fee, within 15 days of the action, pursuant to Section 19.52.100 of the Municipal
(Development) Code.
Please contact me at (909) 384-5057 extension 3330 if you have any questions or concerns
regarding the approval of DP] No. 06-054.
Sincerely,
^
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Terri Rahhal,
Principal Planner
Ene. Conditions of Approval
Cc: Address File
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CONDITIONS OF APPROVAL -
DPI No. 06-054
Establishment of a Small Container Recycling Facility
1620 W. Baseline
1. This Development Permit Type I is an approval to establish a small container
collection! recycling facility as an accessory use to an existing retail store located at
1620 W. Baseline. Pursuant to San Bernardino Municipal Code ~ 19.22.060.
2. The facility shall be a small container collection facility, not to exceed 500 square feet
of total area consisting of two receptacles for collection of glass, aluminum and
plastic beverage containers only, and a kiosk! collection booth. The hours of
operation shall be 10:00 AM to 5:00 PM Monday through Saturday.
3. Within two-years of development approval, commencement of construction shall
have occurred or the permit! approval shall become null and void. In addition, if
after commencement of construction, work is discontinued for a period of one year,
then the permit! approval shall become null and' void. However, approval of the
Development Permit does not authorize commencement of construction. All
necessary permits must be obtained prior to commencement of specified
construction activities included in the Conditions of Approval.
Expiration Date: May 12, 2008
4. The review authority may grant a one-time extension, for good cause, not to exceed
12 months. The applicant must file an application, the processing fees, and all
required submittal items, 30 days prior to the expiration date. The review authority
shall ensure that the project complies with all Development Code provisions in
effect at the time of the requested.extension.
5. In the event this approval is legally challenged, the City will promptly notify the
applicant of any claim, action or proceeding and will cooperate fully in the defense
of this matter. Once notified, the applicant agrees to defend, indemnify and hold
harmless the City of San Bernardino (City), the Economic Development Agency of
the City 9f San Bernardino (ED A), any departments, agencies, divisions, boards or
commission of either the City or EDA as well as predecessors, successors, assigns,
agents, directors, elected officials, officers, employees, representatives and attorneys
of either the City or EDA from any claim, action or proceeding against any of the
foregoing persons or entities. The applicant further agrees to reimburse the City for
any costs and attorneys' fees which the City may be required by a court to pay as a
result of such action, but such participation shall not relieve applicant of his or her
obligation under this condition.
Conditions of Approval
DPI No. 06-054
6. The approval is subject to aU the applicable provisions of the Development Code in
effect at the time of approval. This includes Chapter 19.20 - Property Development
Standards, and includes: dust control during construction and grading activities (as
applicable); emission control of fumes, vapors, gas and other forms of air pollution;
glare control; exterior lighting design and control; noise control; odor control;
screening; signs; off-street parking and off-street loading; and vibration control.
7. Signs are not approved as part of this permit. Any signage proposed on the outside of
the kiosk or receptacles must be submitted for review and approval of a sign permit by
Planning Staff. The two inset "window" spaces on the front of the kiosk shall be used
to post the name and telephone number of the facility operator, hours of operation,
redemption values and a notice stating that no material shall be left outside when the
facility is closed.
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8. No banners, balloons, sandwich boards or come-on signs shall be permitted per SBMC
S 19.22.060.
9. No public pay phone shall be permitted in conjunction with this use.
10. The project shall comply with all applicable requirements of other City departments or
divisions, including Public Works, Building and Safety, Police, Fire, Public Services
Refuse Division, and the City Oerks Office, Business Registration Division.
11. The project shall comply with all applicable requirements of outside agencies,
including San Bernardino County Public Health Department, California Board of
Equalization, etc., as applicable.
12. All graffiti must be removed within 24 hours of its occurrence. The management
shall take a photograph of the graffiti and provide it to the Police Department before
removing the graffiti.
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13. Submittal requirements for any permit applications (site improvements,
landscaping, etc.) to Building Plan Check and/ or Public Works/Engineering shall
include all Conditions of Approval and Standard Requirements issued with this
Development Permit Type 1 approval.
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Conditions of Approval
DPl No. 06-054
14. No outdoor music or loudspeakers shall be permitted in conjunction with this use.
15. The entire outdoor area of the site where the facility is proposed shall be cleaned of
all trash and debris, and trash dumpsters shall be secured in the enclosures prior to
establishment of the recycling collection facility.
16. No outdoor storage of any materials shall be allowed on-site, and no dumping or
dropping off of materials shall be permitted when no attendant is on duty.
17. The parking lot where the kiosk is proposed, on the east side of the existing market
and behind the existing taco stand, an area of approximately 70 ft. X 100 ft. shall be
repaired, rehabilitated and restriped, if necessary to provide a smooth, impervious
surface with clearly marked parking spaces.
18. No power-driven processing equipment shall be permitted in conjunction with the
collection facility except for reverse vending machines.
19. The collection containers shall be secured when not in use from unauthorized entry
and/ or removal of materials.
20. Containers shall be of a capacity sufficient to accommodate materials collected and the
collection schedule.
21. Removal/replacement of containers shall ()Ccur only during the approved hours of
operation (10:00 AM - 5:00 PM Monday thi-ough Saturday).
22. The kiosk material shall be consistent with the rendering and example photos
submitted with the application (DPl 06-054) and shall conform to the specified
dimensions (18 ft. wide X 30 ft. long X 11 ft. high).
23. The facility shall provide and maintain adequate refuse containers for the disposal of
non-hazardous waste. Small refuse containers shall be emptied into dumpsters on
site and stowed inside the kiosk at the end of each day of operation.
24. Landscaping in the rear parking area described above, as shown surrounding parking
stalls 41 .: 46 on the approved site plan, shall be replanted with healthy shrubs and
turf. Irrigation shall be repaired or installed as needed, and this area shall be mowed,
cleaned up and maintained on a weekly basis, at a minimum.
25. This permit or approval is subject to the attached conditions or requirements of the
following City Departments or Divisions:
a. Building and Safety
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City of San Bernardino
STANDARD REQUIREMENTS
Development ServiceslPlan Check Di~'ision
.
Property address:
------~-
DRCI+ (,6- o;_~)
-""-. ---
NOTE; NO- PLANS WILL BE
CHECK WITHOUT CONDITIONS
IMPRINTED ON PLAN SHEETS.
DATE: ~ - ,.:5-0(
ACCEPTED.
OF
FOR PLAN
APPROV AL
-
Submit 6 sets of plans, minimum size 18" x 24", drawn to scale, If plan check is for
expeditious review, submit 6 sets. The plans shall include (if applicable):
a. site plan (Include address & assessors parcel number)
b. foundation plan
c. floor plan (label use of aU areas)
. d. elevations
e. electrical, mechanical, & plumbing plans
f. detail sheets (structural) -",.
g. cross section details
h. show compliance with Title 24/ Accessibility (disabled access)
i. a plan check deposit fee will be required upon submittal of plans.
CaU Development Services (plan check) 909-384-5071 for amount.
1. The title sheet of the plans must specify the occupancy classification, t)'pe of construction, If
the building has sprinklers, & the current applicable codes. .
2. The person who prepares them must sign the plans. Also, provide the address & phone
number of that person. Some types of occupancies require that the plans are prepared,
stamped, and signed by an architect, engineer, or other person licensed by the State of
California.
,
3. For structures that must include an engineers design, pro\'ide 2 sets of stamped/wet signed
calculations prepared by a licensed architect/engineer.
4. Provide 2 sets of Title 24/Energ)' compliance forms and calculations. Some compliance
forms are required to be printed on the plans.
e. 5.
Submit grading, site, and/or landscape plans 10 Public Works/Engineering for plan check
approval and permits. For more information, phone 909-384-5111.
300 N '0' SlI'eel San Bernardino CA 92418
909-384-5071 Office
909-384-5080 Fax
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Fire sprlnkJer plans, fires suppression system plans, etc., shall be submitted to the Fire
Department for plan check approval and permits. For information, phone 909-3114-5388.
7. Signs require a separate submittal to the Planning Division for plan check approval and
permits. For Information, phone 909-384-5057.
6.
8. Restaurants, food preparation facilities, and some health related occupancies will require
clearances and approved plans from San Bernardino County Health Department. For
Information, phone 909-387-3043.
9. Occupandes that Include restaurants, car washes, automotive repair/auto body, deatl.t
offices, food preparation CaclUtles or processing plants, etc. may require approvab and
permits Crom San Bernardino Water Reclamation. For InCormatlon, phone 909-3114-51"1.
10. An air quality permit may be required. Contact South Coast Air Quality Management
Division for information, phone 909-396-2000.
11. State of California Business & Professions Code/Contractors License Law requires that
permits can be Issued to licensed contracton or owner-builders (that are doing the work).
Contractors must provide their State license number, a dty business registration, and
workers compensation pollc)' carrier & policy number. Owner-builders must p.rovide
proof DC ownership.
NOTE: PLAN CHECK TIME ON THESE TYPES't>F PROJECTS IS APPROXIMA TEL Y 4-6
WEEKS FOR I ST CORRECTIONS. EXPEDITIOUs.._REVIEW IS APPROXIMA TEL Y 10 WORKING
DAYS. THE DEVELOPMENT REVIEW PROCESS IS NOT THE BUILDING PLAN CHECK AND
DOES NOT IMPL Y THAT THE DESIGN AS SUBMITTED WILL BE APPROVED WITHOUT
CORRECTIONS,
Comments:
300 N'D' SlreCl San Bernardino CA 92418
909-384.5071 Office
909-384-5080 Fax
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CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT
300 NORTH "D" STREET, SAN BERNARDINO, CA 92418. (909) 384-5057
PROJECT REVIEW ROUTING
I PROJECT: DEVELOPMENT PERMIT I NO. 06-054 I
TO: ARNE LOVNASETH-PLAN CHECK
,
GERI FRANSKE-FIRE DEPARTMENT
FROM:
DATE:
PLEASE RESPOND BY:
DESCRIPTION: A request to establish a small container recycling center in the parking
lot of an existing multi-tenant center located at 1620 W. Baseline Street.
APN: 0143-161-20
OWNER: Mary Townsend
APPLICANT: Eugene Vortman
LAND USE DESIGNATION: CG-2. Commercial General
ENVIRONMENTAL DETERMINATION: Exempt from CEQA, Section 15311 -
Accessory Structure
COMMENTS: (lTSE ADDITIONAL SHEETS IF fI.'ECESSARY)
,-
Citv of SIlIl Benumfillo
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D~I'llrtlllellt
Development Permit DP-l
Application Form
DP-l=: T/Pl 06-051
Project address: I C. z.. 0
W. C>~$E.'-I"'I;. ST.
DI'"t5-161- 2..0 -0<:l00
Assessor's Parcel Number:
Applicant's name: E v;:' "-"" E. V .lLT .... "...,
Applicant's address: S 1. b ~. '" '- "''''''' r: 0... ~\.
Applicant's phone: 2..\ 3 - S "I ~ - 5000
Property owner's name: "" -.1!-'1' l2- To",,"'; S E l'oJ \)
Property owner's address: l'"l"t S N. fE~tE(l. ^.~.
Property owner's phone: "10' - 1 t "I.. 0 S "\ 7
Architect/engineer name: j co ~ .. $"t ..L'" ..., oIL I,",
ArchitecUengineer address: l"t 0 1 (,J. 0'-1'11 E. ::.,.
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e-mail: 6(..- e @ c.t.v \?.ec.y C,...,""t:.c.
"l'oJC:oE...ES ,eA '001)
FAX: 2..1 ~.. t<.2.. S" - ~""
e-mail:
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FAX:
e-mail: Pll.......o.T.....~....i 1.005'<2 '{....oo.c....
S"lo.J r.:,~~......."..... co. '~'111
Architect/engineer phone: ~ 1. '3. ~ "t 0" " '\ \
FAX:
e ~TAILED DESCRIPTlO:'i OF PROJECT/Bt:SI:'iESS:
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Co'-'-! c, 10....
f ^C:I '-Ii Y
TYPE OF PROJECT
o New business
Z Relocating business
o ABC license for a restaurant
o Second dwelling unit
o Fence permit
o Reuse of existing building (vacant longer than I year)
o Building expansion (less than 10%)
o Exterior change to an existing building
o Letter of Public Com'enience & Necessity (PCN)
/s;' 3/~
LAND USE DISTRICT:
,- C- - 1..-
...
TYPE OF Bl'SINESS
o Retail Commercial
.m Other (Please define):
o Office
.5 "'" ..1..\..
o Restaurant 0 Industrial
C:~'-I.~"'\'~N ~EC"C""INc::. c.1S'l"T~\L
PROJECT I:WORMA TIO:'l
e ~uare footage of the entire property:
Square footage of the building and/or building addition:
3~ 'c s
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511101
E&M Ret.icling Company
526 South Alameda Street - Los Angeles, CA 90013
Gene@CRVRecyding.com
.
March 14,2006
City of San Bernardino
Development Services Department
300 Nonh "0" Street
San Bernardino, CA 9241S
Re: Development Permit DP-I Lener of Intent
In connection with our pending Development Permit application this Lener of Intent has been prepared. The purpose of this document
is to provide the Development Services Department with a "Tinen statement describing the operation that our company proposes. The
explanations are as follows:
This project is intended to serve as a replacement facility for the following Recycling Center:
State Certification 1/ RC 11914
157S W. Baseline Street
San Bernardino, CA 92411
It is our intent, and the purpose of the pending application, to operate a State of California Certified Convenient Zone Recycling
Center. This facility will be of an accessory use to the existing business of "Jimmy's Food Store" located at 1620 W. Baseline Street
for the collection and convenient redemption of aluminum, glass and plastic beverage containers from consumers within the premises.
It is our goal to not only create a more convenient and efficient means of local residents to recycle.
. ;upport of this objective, our company has invested a great deal of time and resources in manufacturing new, state-of-the-art kiosk
.. ....iipment that has been designed specifically for this use. In deploying our services, two recycling receptacles connected to a
. "Kiosk" will be utilized which will encompass a mere 4S6 square foot area; Each receptacle is 22'L by S'W, and the kiosk is IS'W by
5'D. This kiosk configuration has been engineered to ensure. the safe, secure and an aesthetically pleasant collection of consumer
materials while maintaining the conforming look of the community and the property it resides on. The first of these receptacles is for
the collection and storage of glass aJ)d plastic beverage containers. It has been designed with three internal compartments for glass
(one for each color of glass; clear. brown and green), and one main compartment for plastics. With low side loading capabilities and a
custom internal manufacturing process. our receptacles store more material, produce zero pollution and spills and help eliminate the
possibility of lifting injuries b)' our employees. The second receptacle is for the storage of aluminum beverage containers which
utilizes special "spacers" which enable the safe and secure collection and storage of material while keeping the receptacle tight and
secure.
As planned, the recycling equipment will be placed on the eastern portion of the parking lot area as indicated in the site plan. The
kiosk has been planned to be located in an "out of the way" area so that it will not impact traffic flow or parking and create an
appealing, new look. With this sining and with limited operating hours from 10:00 a.m. to 5:00 p.m. and with the absence of
processing equipment, noise levels will be isolated to vehicle traffic. As part of our routine operating procedures, a daily "sweep" of
the area encompassing a 100' radius will be conducted. Any debris collected from this process will be deposited into a three yard
trash receptacle that will be provided by the City of San Bernardino Refuse Department.
I would like to thank you in advance for your cooperation and consideration. Should you have any further questions, please feel free
to contact me (213) 595-5000. Thanks again for your assistance in this maner.
Sincerely,
..-- ." ," .~
'[ .:;:-"--.'op;':t;---
. '="gene Vortman
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CITY OF SAN BERNARDINO
DEPARTMENT OF DEVELOPMENT SERVICES
RECEIPT
Activity#:DPI06-054
Development Permit I
SITE ADDRESS, 1620 W BASELINE ST SB PARCEL: 0143-161-20-0000
RECEIVED FROM: E &M RECYCLING COMPANY
RECEIPT NUMBER: R06001416 Copy Reprinted on 03-16-2006 at 09:21:15
TRANSACTION DATE: 03/15/2006 TOTAL PAYMENT:
TOTAL PAID FROM TRUST:
TOTAL PAID FROM CURRENCY:
TRANSACTIONS,
124.25
.00
124.25
Type Method Description Amount
Payment Check 6025 124.25
ACCOUNT ITEMS:
TOTAL:
124 .25
Description
Current pmts
Account Code
Archival Fee
Archival Fee Documents
Archival Fee Plan Sheet
DEV PERMIT TYPE I
001-000-4789
001-000-4789
001-000-4789
001-000-4766
TOTAL ,
1. 00
4.25
6.00
113.00
124.25
RECEIPT ISSUED BY, GMB
ENTERED DATE: 03/15/2006
INITIALS: GMB
TIME, 08:08 AM
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EXHIBIT 2
--
Sail Berm IUD
CITY OF SAN BERNARDINO
Development Services Department, Planning Division
300 Nonh "0" Street, 3" floor
San Bernardino, CA 92418
Phone (909) 384-5057 . Fax (909) 384-5080
Web address: www.sbcity.org
APPLICATIOl'i FOR APPEAL
APPEAL FROM A DECISION OF THE (check one)
o Development Services DireCIor
o Development/Environmental Review CommitIee
I!I Planning Commission
Case number(s}:
Development Permit Type I No. 06-054
f\\' 0 l.; - \,~
PrOject address:
1620 Vest Baseline Street, San Bernardino, CA92418
Appellant's name: E&M Recycling COIIJ>any
Appellant's address: 526 South Alameda Street, Los Anoeles, CA 90013
_APpellant'S phone: (213) 595-5000
Appellant's e-mail address:gene@crvrecycliDR.cOll
Contact person's name:
A. Patrick Munoz/Rutan & Tucker, LLP
ConIaer person's address: 611 Anton Boulevard, Suite 1400, Costa Mesa. CA 92626 19'iO
Contact person's phone: (714) 662-4628
COntact person's e-mail address:pmunoz@rutan.com
PursuanlIO Sccrion 19.52.100 of the Development Code, an appeal must be filed on a City application fotnl
within 15 days following Ihe flnal date of action, accompanied by the appropriate appeal filing fee.
Appeals arc normally scheduled for a determination by the Planning Commission or Mayor and Common
Council within 30 days ofIlle filing dale OfIhc appeal YOll will be notified, in writing, of toe specific dale and
l1me of thc appeal hearing.
OFFICE USE ONLY
Dale appeal filed:
_ Received by: t f \)
; 1/04
tit RF.QUlRED INFOR.I\1ATIO'" FOR AN APPEAL
Specilic action being appealed and the date of that action;
Planning Commission Revocation of Development Permit No. 06-054, dated August 22, 2006.
Specific grOLlI1ds for the appeaL
See Attachment "A" hereto.
Action sought:
tit Appeal to City Council and reversal of Planning Commission decision revoking
Development Permit No. 06-054.
Additional information:
Appellant will submit further information and supplemental briefing on this issue
prior to the City Council appeal hearing.
~~;?;;;
..___-? / .. J" ~
.. Signature ofappellant~'U '-, _.. '-....s.... ...
_ A. Patrick Munoz, -Attorney for Appellant
Date: 9/5/06
2
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ATTACHMENT "A"
The decision of the Planning Commission revoking Development Permit 06-054 (the
"Permit") should be reversed for the following reasons:
The Planning Commission's Permit revocation significantly oversteps the City's legal
authority to regulate a vested business operation. "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." (Goat Hill Tavern v. City a/Costa Mesa
(1992) 6 Cal.App.4th 1519, 1530.) Unlike a decision to deny or approve a permit in the first
place, local agencies are substantially limited in their power to revoke the operational permits for
a vested property right. (ld. ["Once a use permit has been properly issued the power of a
municipality to revoke it is limited."].) Indeed, when local agency chooses to revoke a permit
for such vested uses, a reviewing court will apply heightened scrutiny to the evidence both
supporting and refuting such decision. (ld.)
The basic concept of "reasonableness" also must guide any local agency decision
affecting a vested property right. A vested right cannot be revoked unless the City proves that
. the permittee failed to comply with "reasonable terms or conditions expressed in the permit
granted. . . or there is a compelling public necessity." (Id. [emphasis supplied].) The revocation
of a vested property right in a manner that oversteps the bounds of reasonableness, or is
unsupported by the evidence, constitutes a violation of civil rights and warrants reversal by a
judicial writ of mandate.
The Planning Commission's decision to revoke E&M's Permit includes findings that do
not support the recommended action, and the findings that are proposed are simply not supported
by the evidence:
A. As to the finding that circumstances have changed such that findings supporting
the Permit's initial approval can no longer be made, this finding is untenable in both evidence
and logic. At the time that E&M was notified of the City's decision to revoke the Permit, its
recycling center had been operating for little more than one month. Surely, the conditions in the
area of the site had not changed so dramatically within just one month as to make the Permit
approval findings inapplicable or accurate. Moreover, no evidence has been presented to
demonstrate a change in neighborhood circumstances reaching the requisite level of "compelling
public necessity" mandated by the above-cited legal authorities.
B~ As to any findings relating to a "modular kiosk" to be installed at the recycling
facility, it again bears emphasis that the facility has only been in operation since July 1, 2006.
E&M has not been given the time necessary for the manufacturing and placement of the kiosk.
The City's expectation that E&M would manufacture and install a modular kiosk within just
little more than one month from the start of operations is patently unreasonable under the legal
standards cited above.
C. Several factual bases for the Planning Commission's decision to revoke E&M's
Permit were disproved at the August 22, 2006 hearing:
1068/024012-0002
743214.01 a09105/06
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. It was alleged that the recycling facility failed to post a sign communicating
its name, hours of operation and telephone number. However, at the hearing,
E&M's representative provided evidence that such a sign had been posted at
the site from the start of operations. This evidence was not controverted.
. It was also alleged that E&M had placed an illegal "come on" sign at its
Baseline site. However, it was uncontroverted that such sign had been
removed from the site several weeks before the Planning Commission
hearing. Thus, any findings based upon such a "come on" sign were cured
and could not provide a valid and lawful basis for revocation of the Permit.
. Any and all findings relating to alleged graffiti at E&M's site were likewise
unsupported by any reliable evidence. At the Planning Commission hearing,
E&M's representative demonstrated that (I) the graffiti at issue was located
on property that did not belong to E&M, and (2) that such graffiti was pre-
existing long before E&M commenced operations. The City cannot lawfully
revoke E&M's permit as a result of pre-existing graffiti located upon the
property of others.
D. The Permit cannot lawfully be revoked as a result of actions outside of E&M's
control. The City's reliance upon findings relating to the "appearance" of certain patrons at
E&M's recycling site, or the presence of shopping carts near the site, has no support in the law.
A use permit simply cannot be lawfully revoked based upon the unsolicited acts of patrons that
outside the reasonable control of a business operator. (Tarbox v. Board of Supervisors (J 958)
163 Cal.App.2d 373.) The City apparently relies upon the fact that shopping carts have been
abandoned around E&M's facility as the primary basis for revoking the Permit. The evidence
cited by the City in support of such finding consisted entirely of after-hours activities and/or
shopping carts abandoned as much as one block away from E&M's site. No evidence was
presented to demonstrate that E&M is, in fact, the cause of shopping cart abandonment on and
around Baseline Street. Moreover, despite an acknowledgement that E&M has extended efforts
to remove abandoned shopping carts, City staff and the Planning Commission apparently take
the position that no efforts exerted by E&M can ever satisfactorily prevent the presence of
shopping carts in the neighborhood. This position, however, directly and clearly contradicts any
standard of reasonableness.
For the foregoing reasons, the Planning Commission's decision revoking E&M's permit
must be reversed.
1068/024012-0002
743214.01 a09/05/06
-2-
OFFICE OF THE CITY CLERK
RAcHEL G. CLARK, CM.C. . CITY CLERK
300 North "D" Street. San Bernardino. CA 92418-0001
909.384.5002. Fax: 909.384.5158
www.sbcity.org
..
October 17, 2006
A. Patrick Munoz
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa. CA 92626-1950
Dear Mr. Munoz:
At the meeting of the Mayor and Common Council held on October 16, 2006, the following
action was taken relative to the appeal of the Planning Commission's revocation of a permit to
operate a small container recycling facility at 1620 W. Baseline Street:
That the matter be continued to November 6,2006, at 4:30 p.m. in the Council
Chambers of City Hall.
If we can be of further assistance, please do not hesitate to contact the City Clerk's office.
Sincerely,
~/J. C-t~k.
Rachel G. Clark
City Clerk
RGC:lls
pc: Eugene Vortman, E&M Recycling, 526 S. Alameda Street, Los Angeles, CA 90013
CITY OF SAN BERNARDINO
AnoPTIID SHARED VALUES: Integrity. Accountability. Respect for Human Dignity. Honesty