HomeMy WebLinkAbout24-Community Development
CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
Date: May 2, 2011
Subject: Resolution denying appeals of the
Planning Commission's revocation of Conditional
Use Permit No. 93-14, a permit to operate a night
club at 295 East Caroline Street, in the CR-3,
Commercial Regional land use district.
(Appeals 11-02 & 11-03)
From: M. Margo Wheeler, Director
Dept: Community Development
MCC Date: May 16,2011
Synopsis of Previous Council Action:
None.
Recommended Motion:
That the hearing be closed and that the Mayor and Common Council adopt the Resolution to
deny the appeals and uphold the staff recommendation and the Planning Commission's
revocation of Conditional Use Permit No. 93-14.
11/(}fJ
'. M. Margo Wheeler, AICP
Contact person:
Terri Rahhal, City Planner
Phone:
3330
Supporting data attached: Staff Report, Appeals, Resolution Ward: 3
FUNDING REQUIREMENTS: Amount: N/A
Source:
Acct. Description:
Finance:
Council Notes:
Agenda Item No.
J-4
05 'fer 0-0 t{
CITY OF SAN BERNARDINO - REOUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution denying appeals of the Planning Commission's revocation of Conditional Use Permit
No. 93-14, a permit to operate a night club at 295 East Caroline Street, in the CR-3, Commercial
Regional land use district (Exhibit I).
Appellants:
CCI Club SB, LLC
c/o: Bruce Evans
Law Offices of Solomon, Saltsman & Jamieson
426 Culver Boulevard
Playa del Rey, CA 90293
The Hudson Theater
c/o: Roger Jon Diamond
2115 Main Street
Santa Monica, CA 90405
Background:
In December 2009, the City filed a nuisance abatement lawsuit against the operator of The
Hudson Theater and the owner of the property, for operation of the night club in violation of
CUP 93-14, as well as City and State laws. In April 2010, the Superior Court granted a
preliminary injunction to restrict activities at the venue, pending a trial. After repeated violations
of the injunction, the City also initiated revocation of the Conditional Use Permit (CUP) 93-14.
On January 26, 2011, the Planning Commission considered the staff report, testimony from
Police Department and City Attorney's office personnel and multiple supporting documents
listed in the Planning Commission Staff Report (Exhibit 2). The documents listed at the end of
Exhibit 2 were distributed to the Planning Commission and the Council on CDs, and are
available for review in the Community Development Department. Although the Planning
Commission revoked CUP 93-14 on January 26, The Hudson Theater operators requested
reconsideration of the revocation because they did not have their legal counsel present at the
January 26, 2011 hearing.
On February 23, 2011, the Planning Commission reconsidered the matter, and based on the facts
presented on January 26 and February 23, the substantial evidence contained on the record, and
the Findings of Fact in the Planning Commission Staff Report, the Planning Commission voted
unanimously to revoke CUP 93-14. Commissioners Calero, Coute, Durr, Eble, Heasley, Machen,
Mulvihill and Sauerbrun voted in favor of the proposal. Commissioner Rawls was absent.
Both the club operator, The Hudson Theater, and the property owner, CCI Club SB, LLC, filed
appeals of the Planning Commission revocation action, attached as Exhibit 3. The Hudson
Theater appeal states that the Hudson Theater has not caused a nuisance sufficient to justify
closing it down. The property owner's appeal requests that the Planning Commission's action be
reversed, or in the alternative, that the Hudson Theater be closed without revocation of the CUP.
2
Public Hearing Notice:
Notice of the public hearing of this item was published in the San Bernardino County Sun on
May 6,2011.
Financial Impact:
None anticipated.
Recommendation:
That the hearing be closed and that the Mayor and Common Council adopt the Resolution to
deny the appeals and uphold the staff recommendation and the Planning Commission's
revocation of Conditional Use Permit No. 93-14.
Attachments:
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Location Map
Planning Commission Statements of Action and 1/26/11 Staff Report
Appeal Statements
Resolution
3
EXHIBIT 1
CITY OF SAN BERNARDINO
PRO.JECT: CUP 93-14 REVOCATION
LOCATION MAP
MCC HEARING DATE: 5/212011
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4A CITY OF SAN BERNARDINO EXHIBIT 2
~ STATEMENT OF OFFICIAL PLANNING COMMISSION ACTION
PROJECT
Number:
Conditional Use Permit No. 93-14
Owner:
CCI Club SB, LLC.
Operator:
The Hudson Theater
Applicant:
City of San Bernardino
Description:
Reconsideration of the Planning Commission's decision on January 26,
2011 to revoke a Conditional Use Permit to operate a night club at 295
East Caroline Street, in the CR-3, Commercial Regional land use district,
pursuant to Development Code Section 19.52.140.
ACTION:
CONDmONAL USE PERMIT REVOKED
Meeting Date:
February 23, 2011
After having considered all facts presented on February 23, 2011, in addition to those facts as
previously presented and considered by the PIRnning Commission at the January 26, 2011
Planning Commission hearing, and based upon (a) the evidence as presented to and considered
by the Planning Commission on February 23, 201 I, and (b) the substantial evidence contained on
the record as considered by the Planning Commission on January 26 and February 23, 2011, and
(c) the Findings ofFact as contained in the January 26, 2011 Staff Report and duly considered by
the Planning Commission, the Planning Commission revoked Conditional Use Permit No. 93-14
on the basis of Development Code Section 19.36.100 A.6.
VOTE
Ayes:
Nays:
Abstain:
Absent:
Calero, Coute, Durr, Eble, Heasley, Machen, Mulvihill and Sauerbrun
None
None
Rawls
The decision of the Planning Commission is final unless a written appeal is filed, with the
appropriate fee, within 15 days of the Planning Commission action, pursuant to Section
19.52.100 of the Municipal (Development) Code.
I hereby certify that this Statement of Official Action accurately reflects the final determination
of the Planning Commission of the City of San Bernardino.
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cc: Case File, Department File, City Attorney
CITY OF SAN BERNARDINO
Community Development Department - Planning Division
Interoffice Memorandum
TO:
Planning Commission _/;>? d /J /}
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Terri Rahhal, City Planner
FROM:
SUBJECT:
Reconsideration of Revocation of Conditional Use Permit No. 93-14
February 23 Agenda Item 8
February 16, 20 II
DATE:
COPIES:
M. Margo Wheeler, Director; Henry Empefio, Jr., Senior Deputy City Attorney
Background:
On January 26, 2011, the Planning Commission revoked Conditional Use Permit No. 93-14, a
permit to operate a night club at 295 East Caroline Street. The club operator has requested an
opportunity to present additional information to the Planning Commission for reconsideration of
the January 26, 2011 action, pursuant to Section 19.52.140 of the Development Code.
Recommendation
Staff recommends that the Planning Commission reconsider its January 26, 2011 decision and
atlirm the revocation of Conditional Use Permit No. 93-14 based on the Findings of Fact in the
January 26, 20 II staff report.
CITY OF SAN BERNARDINO
STATEMENT OF OFFICIAL PLANNING COMMISSION ACTION
PROJECT
Nmnber:
Conditional Use Permit No. 93-14
Owner:
CCl Club SB, LLC.
Applicant:
City of San Bernardino
Description:
A request to modify or revoke a Conditional Use Permit to operate a night
club at 295 East Caroline Street, in the CR-3, Commercial Regional land
use district, pursuant to Development Code Section 19.36.100.
ACTION:
CONDITIONAL USE PERMIT REVOKED
Meeting Date:
January 26, 2011
The Planning Commission revoked Conditional Use Permit No. 93-14 based on the Findings of
Fact contained in the Staff Report.
VOTE
Ayes:
Nays:
Abstain:
Absent:
Calero, Coute, DUTr, Eble, Heasley, Machen, Mulvihill, Rawls and Sauerbrun
None
None
None
The decision of the Planning Commission is final unless a written appeal is filed, with the
appropriate fee, within 15 days of the Planning Commission action, pursuant to Section
19.52.100 of the Municipal (Development) Code.
I hereby certify that this Statement of Official Action accurately reflects the final determination
of the Planning Commission of the City of San Bernardino.
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Date
cc: Case File, Department File, Plan Check, and Public WorkslEngineering
PLANNING COMMISSION STAFF REPORT
CITY OF SAN BERNARDINO PLANNING DIVISION
CASE:
AGENDA ITEM:
HEARING DATE:
WARD:
Conditional Use Permit No. 93-14
2
January 26. 20 I 1
3
OWNER:
CCI Club SB, LLC
2009 Porterfield Way. Ste. P
lJ pland. C A 91 786
OPERA TOR:
The Hudson Theater
295 East Caroline Street
San Bernardino, C A 92408
APPLICANT:
City of San Bernardino
300 N. "'0" Street
San Bernardino. CA 92418
REQUEST AND LOCATION:
A request to modifY or revoke a Conditional Use Permit to operate a night club at 295 East
Caroline Street, in the CR-3. Commercial Regional land use district, pursuant to Oevelopment
Code Section 19.36.100.
CONSTRAINTS/OVERLA YS:
Not Applicable
ENVIRONMENTAL FINDINGS:
'" Exempt from CEQA, Section 15321 - Enforcement Actions
o No Signiticant Effect
o Mitigation Mea~ures and Mitigation Monitoring/Reporting Program
o Environmental Impact Report
STAFF RECOMMENDATION:
Ii'! Rev'ocation
.J Approval
J Denial
J Continuance to:
('lPSo. 93-1../
Jamwn' _YI, :}O II
Page]
REOUESTED ACTION
Statfrequests that the Planning Commission revoke Conditional Use Permit (CUP) No. 93-14, a
permit to utilize a 44,764 sq. ft. commercial building located at 295 E. Caroline Street as the
Hudson Theater night club, based on the fact that the site has become a public nuisance.
SETTING/SITE CHARACTERISTICS
The subject site is a 16.2-acre multi-tenant commercial center located at the southwest comer of
Caroline Street and Waterman Avenue, in the CR-3, Commercial Regional land use district.
(Attachment A).
CALIFORNIA ENVIRONMENTAL OUALITY ACT (CEOA)
Modification or revocation of Conditional Use Permit No. 93-14 is exempt trom CEQA under
Section 1532/ of the CEQA Guidelines, as an enforcement action.
BACKGROUND
CUP No. 93-14 was approved on June 22. 1993. The approved hours of operation were
Wednesday through Sunday. 5:00 p.m. to 1 :30 a.m. On December 19, 2000. the Planning
Commission approved an amendment to the original conditions of approval. to extend the hours
to a new closing time of 2:00 a.m.
REVOCATION AUTHORITY
Section 19.36.100 of the Development Code authorizes the Planning Commission to modity or
revoke a Conditional Use Permit if anyone of the following findings can be made:
I. That circumstances have changed so that one or more of the tindings contained in Section
19.36.050 can no longer be made;
2. That the Conditional Use Permit was obtained by misrepresentation or fraud:
3. That the use for which the Conditional Use Permit was granted has ceased. or was
suspended for six or more consecutive months;
4. That one or more of the conditions of the Conditional Use Permit have not been met:
5. That the use is in violation of any statute, ordinance, law. or regulation; or
6. rhat the use pernlitted by the Conditional Use Permit is detrimental to the public health,
safety or weltare or constitutes a nuisance.
REASONS FOR REVOCATION REOUEST
In December 2009. the City Attorney, on behalf of the People of the State of California. brought
a nuisance abatement lawsuit in the San Bernardino County Superior Court against the operators
and o\\ner under the Drug Abatement Act (of the Calitornia Health and Satety Code) and the
genera! law of nuisance. The lawsuit alleges that the venue is operating in violation of the Cl'P.
operating permits. and State and City laws. On April 9, 2010, the Superior Court granted the
People's motion tor a preliminary injunction restricting activities at the venue. pending a trial. In
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part, the injunction requires that the venue operate to compliance with the CUP, operating
permits, State drug laws, and City curfew laws.
The owner of two adjacent properties has submitted letters supporting the revocation request and
citing problems with loitering, illegal parking, trash, human waste, gratliti and other vandalism
(Attachment B). There is also a documented history of regular and pervasive tratlicking in illicit
drugs, and repeated violations of state and local laws, generating excessive calls lor public safety
services, as detailed in Attachments C and D. Refer to document #4 in Attachment D, "Hudson
Preliminary Injunction Notice", which contains the "'Memorandum of Points and Authorities in
Support of Motion for Preliminary Injunction."
FINDINGS OF FACT
Based upon the attached Supporting Documents and the public testimony presented to the
Planning Commission, the Planning Commission hereby linds that the use of the subject property
is detrimental to the public health, salety and welfare and constitutes a public nuisance.
RECOMMENDA nON
Staft'recommends that the Planning Commission revoke Conditional Use Permit No. 93-14
based on the above Findings of Fact.
Respectfully Submitted,
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Terri RahhaL AICP
City Planner
Approved for Distribution:
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\1. Margo Wheele:. Alep
Community Development Director
.\ttachment A
.\ttachment B
Attachment C
Attachment D
Location Map
Letters from Portugal & Neal. LP and P and N Investments, LLC
Index of Supporting Documents
Supporting Documents (Distributed on CD)
ATTACHMENT A
CITY OF SAN BERNARDINO
PLANNING DIVISION
PRO~ECT: CUP 93-14
LOCATION MAP
HEARING DATE: 1/26/2011
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ATTACHMENT B
Portugal & Neal, LP
P.O. Box 279
Bryn Mawr, CA 92318
909645-9939 (cell) 909793-3517 (phone & fax)
Email: J"nl'aldlllll'~_~~nl.(~
January 14, 2011
Planning Division
City Hall
300 North "0" Street
San Bernardino, CA 92418
RE: Conditional Use Permit No. 93-14
This letter ;s in response to the meeting to be held on Wednesday, January 26,
2011 at 7:00 PM. I am unable to attend and writing this statement regarding my
properties located adjacent to the subject property. My commercial property is
located at Waterman Ave., Redlands Blvd. and Caroline St. It consists of
approximately 90,000 sq. ft of rental space.
On numerous occasions in the past we have had our parking lots inundated with
trash, urination, defecation and vomit. Windows have been etched and broken,
needing to be replaced. Graffiti is more prevalent and requires immediate
attention. I have signs posted, as required by the city, to alleviate loitering and
illegal parking. When the club hosts functions, my parking lots are filled and the
loitering involves the use of alcohol and drugs as evidenced by the trash and
garbage left behind. All these actions ad additional cost to both myself, the
tenants, and the city.
I am in favor of revoking the permit in order to facilitate safe and sanitary
conditions for my tenants and the surrounding area.
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Rich Neal
Portugal and Neal, LP
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P and N Investments, LLC
P.O. Box 279
Bryn Mawr, CA 92318
909645-9939 (cell) 909793-3517 (phone & fax)
Email: rlll'aldulH" 1.1 aoLrllm
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January 14, 2011
Planning Division
City Hall
300 North "0" Street
San Bernardino, CA 92418
RE: Conditional Use Permit No. 93-14
This letter is in response to the meeting to be held on Wednesday, January 26,
2011 at 7:00 PM. I am unable to attend and writing this statement regarding my
properties located adjacent to the subject property. My commercial property is
located at Waterman Ave., Redlands Blvd. and Caroline St. It consists of
approximately 30,000 sq. ft. of rental space.
On numerous occasions in the past we have had our parking lots inundated with
trash, urination, defecation and vomit. Windows have been etched and broken,
needing to be replaced. Graffiti is more prevalent and requires immediate
attention. I have signs posted, as required by the city, to alleviate loitering and
illegal parking. When the club hosts functions, my parking lots are filled and the
loitering involves the use of alcohol and drugs as evidenced by the trash and
garbage left behind. All these actions ad additional cost to both myself, the
tenants, and the city.
Most recently, The Donut Star was a point of focus in the San Bernardino Sun
newspaper regarding loitering and the large amount of under-aged people at the
weekend event. The Donut Star is one of my tenants.
I am in favor of revoking the permit in order to facilitate safe and sanitary
conditions for my tenants and the surrounding area.
, T/~/
Rich Neal
P & N Investments, LLC
ATTACHMENT C
CD TABLE OF CONTENTS
~ CUP 93-14
3. CUP 00-17 (Amended Conditions for CUP 93-14)
4. Hudson Preliminary Injunction Notice. Points and Authorities. Order
5. Hudson Order-Granting Injunction
6. Hudson Declarations 1
1. Ollicer Anthony Castro
2. Officer Elizabeth Contreras
3. Officer Janie Cozine
4. Officer Titlimy Emon
5. Otlicer Richard Everett
6. Assistant Chief Mark Garcia
7. Officer Jennifer Kohrell
8. Officer Ricardo Landeros
9. Otlicer Jose Loera
10. Otlicer Ernest Luna
11. Terri Rahhal
12. Otlicer Anna Stewart
13. Gerald Williams
14. Lisa Williams
7. Hudson 2nd Set of Declarations
15. Otlicer Gerald Beall
16. Otlicer Joshua Cogswell
17. Otlicer Toby Reveles
18. Officer Arturo Reyna
19. Officer Joseph Valdivia
20. Officer Jesus Vega
21. Otlicer Anthony White
8. Hudson Reply Declarations 3-3-10
" Deputy City Attorney Richard Luczak
23. Sgt. Randy Wilson
24. Sgt. Rob Voung
9. Hudson Supplemental Declarations 3-8-10
25. LI. Gwen Waters
26. Deputy Fire Chief Mat Fratus
10. Hudson Supplemental 2 Reply Declarations 3-23-10
27. Fred Faridian - President. Everest College. San Bernardino Campus
28. Officer Ernet Luna - San Bernardino Police Department
29. Luke Vasquez - General Manager. SB Raceway
CD TABLE OF CONTENTS
Pal!:e 2
II. Hudson Motion for Closure, Points and Authorities
12. Hudson Exhibits Re Closure Motion
1. Order Granting Preliminary Injunction, filed April 9, 2010
2. Certified Reporter's Transcript of Hearing on Motion for Preliminary Injunction,
March 30, 2010
3. Declaration of Margaret Shennan in Opposition to Motion for Preliminary
Injunction, tiled February 22, 2010
4. Supplemental Declaration of Margaret Sherman in Opposition to Motion for
Preliminary Injunction, tiled March 18,2010
5. San Bernardino Municipal Code, Chapter 9.68 - Curfew
6. Email message from Roger Jon Diamond, Esq. acknowledging Hudson Theater
Allows minors on premises after curfew
7. Constitutional law flyer distributed at Hudson Theater
13. Hudson Declarations Re Closure Motion
I. Onicer Edward Andrade
7 Ofticer Brent Baker
3. Ofticer Anthony Castro
4. Officer Joshua Cogswell
5. Officer Elizabeth Contreras
6. Reserve Officer Michael Eckley
7, Officer Tiffany Emon
8. Sergeant Jeff Harvey
9. Officer Andrew Honeycutt
10. Officer Shaun Jarvis
II. Officer Ricardo Landeros
12. Officer Edward Lee
13. Officer Dominick Martinez
14. Officer Rone! Newton
15. Officer Brian Pe!lis
16. Officer Anna Stewart
17. Ofticer Serbando Saenz
18. Ofticcr Jesse Shank
19. Otliccr Ke\'in Silbaugh
20. Officer Ryan Thornburg
21. Officcr Patrick W oolweaver
EXHIBIT 3
APPLICATION FOR APPEAL
APPEAL OF A DECISION FROM THE (CHECK ONE):
o COMMUNITY DEVELOPMENT DIRECTOR
o DEVELOPMENT / ENVIRONMENTAL REVIEW COMMITTEE
.~ PLANNING COMMISSION
PROJECT CASE NUMBER(S): ('/:V1J,l'.,o-v'\ U~ <'CO",,\- No, '1;-1'1
PROJECT ADDRESS / LOCATION: 1AS e-.t,-r C,,,, I, ,,'" ') iyc~+'
NAME OF APPELLANT: CC I- C\ ,~\n;?) , L--l--c... j A\tl>''''l.':)'- b /\.At<. ~v" V\ ,
ADDRESS OF APPELLANT: ,1t-t,\1)'V1<~" 'I'1Z--b ("Iv,! GlvA ~ \ll",)" ,\<-\ \'-'j: C-\ 10;;13
TELEPHONE OF APPELLANT: 4tlo' 'OK') , ~ ,Z; -'0 U -'I 'N 6
NAME OF REPRESENTATIVE:. \~ <,,lei!. EJ"'^" Jt\'\-W'''~J r"br CL,C
ADDRESS OF REPRESENTATIVE: l~Z.G C"I"" C; k~ ,r\",1'" ,t--l ~ ej C A-fo/~95
TELEPHONE OF REPRESENTATIVE: \' ~ \ 0 " I: L 2 - '} Z '1-;:
PURSUANT TO DEVELOPMENT CODE SECTION 19.52.100, AN APPEAL MUST BE FILED WIlliIN
15 DAYS FOLLOWING THE FINAL DATE OF ACTION FOR WHICH AN APPEAL IS FILED.
APPEALS MUST BE FILED ON A CITY APPUCATION FORM AND ACCOMPANIED BY THE
APPROPRIATE FlUNG FEE.
APPEALS ARE NORMALLY SCHEDULED FOR A DETERMINATION BY THE PLANNING
COMMISSION OR THE MAYOR & COMMON COUNCIL WITHIN 30 DAYS OF THE FlUNG DATE
OF THE APPEAL. YOU WILL BE NOTIFIED, IN WRmNG, OF THE SPECIFIC DATE AND TIME OF
THE APPEAL HEARING.
OFFICE USE ONL Y
DATE FILED:
RECEIPT ISSUED BY:
RECEIPT NUMBER:
RECEIPT Ar~OUNT: $
1
REQUIRED INFORMATION FOR APPEAL
SPEOFIC ACTION BEING APPEALED AND THE DATE OF ACTION:
i'.t'0"<<1,,,,^ ~r, C".,J lhv~,"\ \;I~ g~,(>~J- I~t-,'V"''''J? 3 70: \
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SPEOFIC GROUNDS FOR THE APPEAL:
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ACTION SOUGHT:
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ADDmONAL INFORMATION:
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ATTACHMENT TO APPEAL OF FEBRUARY 23, 2011 PLANNING COMMISSION
DECISION REVOKING CONDITIONAL USE PERMIT TO OPERATE NIGHT
CLUB AT 295 E. CAROLINE STREET
Grounds for Appeal
CCI Club SB, LLC (hereinafter referred to as, "Cadence Capital Investments") is a real estate
development and investment firm focused on commercial properties, and the owner of the
subject property. Cadence Capital Investments is based in Greenwood Village, Colorado. It is
not an owner or operator of The Hudson Theater, nor is any individual affiliated in any way
with Cadence Capital Investments. Cadence Capital Investments is solely the landlord of this
property.
Cadence Capital Investments has not caused the alleged nuisance, nor has it knowingly
permitted any nuisance activity to take place at the premises. Indeed, Cadence Capital
Investments has never been involved in the operation of the business at issue. Cadence Capital
Investments supported the Preliminary Injunction to impose conditions on the operation of the
tenants' business.
Cadence Capital Investments appeals the revocation as being unnecessary and contrary to
case law which holds revocation is an extraordinary remedy and should only be imposed
when prior less drastic efforts have failed. The City has numerous other remedies that would
target the offending business, but not the landlord's property rights such as revoking or failing
to renew the entertainment and operators permits held by the business. Instead, the City has
began CUP revocation proceedings impairing the owner's long term property rights.
The actions of the Planning Commission and the City are violative of, and offensive to,
general notions of fair play, fair procedure and justice. These violations are found on the face
of the decision as well as in the application of the decision. Additionally, the City Attorney
acted as both prosecutor and legal advisor to the Commission violating California case law
and CCl's due process rights.
The City has proceeded without and in excess of its jurisdiction by not conducting fair
hearings, not considering all relevant evidence, and by committing prejudicial abuse of
discretion. Said abuse of discretion includes, but is not limited to, the City not proceeding in
a manner required by law, imposing a revocation which is not supported by the findings, and
findings which are not supported by the evidence.
The City and Planning Commission violated permit holder's rights to due process (procedural
and substantive) and equal protection of the law.
Accordingly, for all these reasons and others that may be presented to the City Council, the
decision of the Planning Commission should be reversed.
The Council is requested to take the folIowinl!: action:
Based on all of the foregoing reasons, as well as other issues and evidence that will be
presented in the future at the hearing in this matter, the Permit Holder/Appellant respectfully
requests the decision of the Planning Commission be reversed, or in the alternative that the
Council target the offending business activity and take action that will shut down the business
without revoking the CUP.
"....
CITY OF SAN BERNARDINO
Development Services Department, Planning Division
300 North "0" Street, 3n1 Floor
San Bernardino, CA 92418
Phone (909) 384-5057 . Fax (909) 384-5080
Web address: www.sbcity.org
APPLICATION FOR APPEAL
APPEAL FROM A DECISION OF THE (check one)
o Development Services Director
o OevelopmentJEnvironmental Review Committee
j2f Planning Commission
Case number(s):
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Appellant's address:
Appellant's phone:
Appellant's e-mail address:
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Contact person's address: 1. \( 5 M ~ I" ..1 tv.,. t- ..!' A ,..,,. fr M D N IrA,
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Pursuant to Section 19.52.100 of the Development Code, an appeal must be filed on a City application form
within 15 days following the final date of action, accompanied by die appropriate appeal filing fee.
Date appeal filed:
Received by:
Appeals are normally scheduled for a determination by the Planning Commission or Mayor and Common
Council within 30 days of die filing date of the appeal. You will be notified, in writing, of the specific date and
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REQUIRED INFORMATION FOR AN APPEAL
Specific action being appealed and the date of that action:
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LAW OFFICES OF
ROGER -.JON DIAMOND
2115 MAIN STREET
SANTA MONICA, CALIFORNIA 90405-2215
TELEPHONE (310) 399-3259
FAX (310) 392-9029
rogdiamond@aol.com
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March 8, 2011
Community Development Department
300 North "0" Street
San Bernardino, CA 92418-0001
Re: Notice of Appeal/Hudson Theater
Dear Community Development Department:
The Hudson Theater hereby appeals pursuant to Section 19.52.100 to the Council of the
City of San Bernardino. This is an appeal from the decision of the Planning Commission
revoking the conditional use permit.
Please let me know what the filing fee is and it will be tendered also. The basis for the
appeal is that the Planning Commission had insufficient evidence to justifY revocation
of the conditional use permit. The revocation was not based upon substantial evidence.
The revocation was based upon the theory that the curfew ordinance does not allow
minors to engage in First Amendment activity after 12 midnight. Gathering at the
Hudson Theater for the purpose of listening to music is activity protected by the First
Amendment and is activity which is the subject of the exemption in the curfew
ordinance.
The Hudson Theater has not caused a nuisance sufficient to justify closing it down.
Revocation of the CUP would cause the closure of the business.
The City Code contemplates further review by the Council. The hearing would be de
novo.
Hearsay evidence was allowed over objection by the Planning Commission. The City
of San Bernardino was improperly represented by two different attorneys. James
Penman as well as Donn Dimichele. James Penman curried favor with the Planning
Commission by addressing it at the beginning of the proceeding. Penman while
ostensibly there to represent an adverse party. the Planning Department. in fact
conducted himselfas though he were the advisor to the Planning Commission. Penman
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functioned as the real advisor but the City pretended to have an independent attorney
attend the Planning Commission hearing. That attorney served no function other than
to be a bump on a log.
Sincer~ly,
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ROGER J0N DIAMOND
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