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Home My WebLink About29- Planning & Building Services CITY OF SAN BERhARDINO - REQUEST P OR COUNCIL ACTION Al Boughey, Director Subject: Appeal of Planning Commission denial of Variance No. 93-11 Dept: Planning & Building Services Mayor and Common Council Meeting Date: October 26 , 1993 November 15 , 1993 @ 2 : 00 p.m. Synopsis of Previous Council action: September 21 ; 1993 , the Planning Commission denied Variance No. 93-11 . Recommended motion: That the hearing* be closed and that the Mayor and Common Council deny Variance No. 93-11 based upon the Findings of Fact contained in the September 21 , 1993 Planning Commission staff report. �r 7 Al Bough ignatu Al Boughey 384-5357 Contact person: Phone: Supporting data attached: Staff Report Ward: 5 FUNDING REQUIREMENTS: Amount: N/A Source: (Acct. No.) (Acct. Description) Finance: k A Notes: /# !/ `Af-93 Wva 75-0262 Agenda Item No. CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION SUBJECT: APPEAL OF PLANNING COMMISSION DENIAL OF VARIANCE NO. 93-11 REQUEST/LOCATION: The applicant requests approval of Variance No. 93-11, a variance of Development Code Section 19.22.060(G), to permit an off-site freeway sign for a proposed 11.44 acre community commercial shopping center. The proposed freeway adjacent off-site sign would be located on the property occupied by the Scottish Rite Temple, located between Interstate 215 and Varsity Avenue, on the west side of University Parkway. The future 11.44 acre community commercial shopping center is to be located between Varsity Avenue and College Avenue on the west side of University Parkway, across Varsity Avenue from the Scottish Rite Temple (See Exhibit 1). BACKGROUND: The 11.44 acre shopping center was approved under Conditional Use Permit No. 92-24 on June 22, 1993. KEY ISSUES: There are several key issues which have been identified as follows: • Development Code Section 19.72.050 state that the Planning Commission can approve a Variance application only if all the findings contained in that section can be made. Two of the Findings contained in that section cannot be made. • Finding No. 5 of Development Code Section 19.72.050 requires that the granting of a Variance not allow"a use or activity which is not otherwise expressly authorized by the regulations governing the subject parcel. The proposed off-site sign is a use expressly prohibited by Development Code Section 19.22.060(G). • Finding No. 6 of Development Code Section 19.72.050 requires that the granting of a Variance not be inconsistent with the General Plan. General Plan Policy 1.45.5 requires that signage be limited to the purposes of the building, business, tenant or address identification. The proposed off-site sign would identify a business located off-site in violation of the intent of this policy. • Development Code Section 19.44.020(6) requires a property to have a minimum of 300 feet of freeway frontage in order to be allowed a freeway adjacent sign. The 11.44 acre shopping center does not have my freeway frontage. OPTIONS AVAII.ABLE TO THE MAYOR AND COMMON COUNCIL: The Mayor and Common Council May: 1. Deny the appeal and deny Variance No. 93-11; or, 2. Direct staff to prepare a General Plan Amendment and Development Code Amendment to create provisions that would permit the type of sign that the applicant is requesting. Variance No. 93-11 Mayor and Common Council Meeting November 15, 1993 Page 2 PLANNING COMIVIISSION RECOMMENDATION: The Planning Commission voted 6 to 1 to deny Variance No. 93-11 based upon the Findings of Fact contained in the September 21, 1993 staff report (Exhibit 2). RECOMMENDATION: Staff recommends that the Mayor and Common Council deny the appeal and deny Variance No. 93-11, based upon the Findings of Fact Contained in the Planning Commission staff report (Exhibit 2). Staff recommends against any consideration of revising the General Plan and Development Code to create the provisions that would allow the requested sign since doing so would allow virtually any business in the City, freeway adjacent or not, to have a freeway sign, significantly increasing the overall number of freeway signs creating a potential overabundance of such signs to the visual detriment of the City. Prepared by: Michael R. Finn, Associate Planner For: Al Boughey, Director, Planning and Building Ser ricer Exhibits: 1 - Location Map 2 - Planning Commission Staff Report MUNDELL ODLUM & HAWS "" 'XMAS C. MUNDELL ' TELEPHONE ATTORNEYS AT LAW S A. ODLUM (909) 889-9559 275 WEST HOSPITALITY LANE K^RL N. HAWS SUITE 300 FACSIMILE WILLIAM P. TOOKE SAN BERNARDINO. CALIFORNIA 92408-3240 (909) 383-1036 W C7 rn rn G November 8, 1993 .b N � r Ms. Shauna Clark n`ni Administrative Officer City of San Bernardino 300 North "D" Street San Bernardino, California 92418 Re: Postponement of item currently set for November 15, 1993 Mayor and Common Council Agenda Dear Ms. Clark: The Scottish Rite Temple and UNIVAR San Bernardino, Inc. ("Petitioners"), hereby request a postponement of the appeal of Planning Commission denial of Variance No. 93-11, currently set for the November 15, 1993 Agenda of the Mayor and Common Council. This request is made for the following three reasons: First, one of the individuals principally involved in presenting the Petitioners' position at the City Council meeting was significantly impacted by the recent Laguna Beach fire and will need additional time to prepare. Second, these parties are currently processing a Request for Reconsideration to the Planning Commission and would like to engage in some further discussions with the Planning Commission before proceeding to present their appeal to the Council, if necessary. Third, the Petitioners are gathering further evidence and materials for presentation to both the Planning Commission and the Council regarding other properties that are similarly situated to the property in question. Ms. Shauna Clark November 8, 1993 Page 2 We would appreciate a postponement until some time in mid—January, 1994. If you have any questions please don't hesitate to call. Yours very truly, _;�r Karl N. aws KNH:mea HMA-SAM'dark cc: City Clerk City of San Bernardino 4 � z 0 c� � � V 0 O zz o z Cc Z CL a • ■d o£:* o} ■e 0£:L s4mm 831,10 1N3Wltld HnOl 803 nOl "ft U °o c 00•s MO 39KVH3 E 2 O oo•scs_ w °lvlol o 00'SLS �- 3SIW S33H3 o ` S n 1N3WM W V u 00'SLS rw101 Q a■ M 4uay1ediK �b313 9I4a ■ = ` 911S99 9 :° Q � �ua■nao0 CO) 00'SLS sueal Am 66 66 ao� ploys is Q E S398vM AM E � U £6/60/11 CO) Wd 60:4£:21 £6/60/11 :aae0 ant�olado G St :uo�eaad W 3 £00 :uot�e�s SOV2 :434e8 BLLL21 wolvesuval Z E z J •~ ° J T ansac ion: 27778 ------ W d l/toch:9/9 1 :37:f8 PH m --------------- (� F405 S6q-fQ£ (606) CO) A Rperat8r: JB Sti tion,003 >. o Ton 'e3 OILIPIVU480 UPS �u st:LL � m = '5.04 outp,leulag ueS 10 A413 Stub FAND F SAN BERNARDINO PLANNING AGENDA ILDING SERVICES DEPARTMENT ITEM # CASE VAR No. 93-11 6 LOCATION 9/21/93 HEARING DATE t ° e � i O ' r� .,4 'vt. `� SITE Vol I sr G v G � N aE r�rwnr.a PLAN-8.11 PAGE 1 OF 1 (a- Exh CITY OF SAN BERNARDINO PLANNING AND BUILDING SERVICES DEPARTMENT AGENDA ITEM #6 SUMMARY HEARING DATE September 21 , 1993 WARD 5 APPLICANT: Innovative Graphics , Inc. 833 North Elm Street U) Variance No. 93-11 OWNER: Orange, California 92402 V Scottish Rite Bldg. Association P 0 Box 458 San Bernardino, CA 92402 A variance of Development code Section 19.22.060(G) to allow an off-site freeway sign for an 11.44 acre shopping center to be constructed at the W northwest corner of Varsity Avenue and University Parkway. QThe sign is proposed to be located on 5.93 acres at the northwest corner W of Interstate 215 and University Parkway. W Q EXISTING GENERAL PLAN PROPERTY LAND USE ZONING DESIGNATION Subject Scottish Rite Temple CG-1 Commercial General North (Vacant) Proposed 11.44 acre shopping center CG-1 Commercial General South Interstate 215 Freeway -- -- -- East (Vacant) Proposed 9.94 acre shopping ctr, under constrtn. CG-1 Commercial General West •Iulti-family apartments RM Residential Medium GEOLOGIC/SEISMIC ❑ YES FLOOD HAZARD ❑ YES ❑ ZONE A SEWERS: 91 YES HAZARD ZONE: [3 NO ZONE: ® NO ❑ ZONES ❑ NO HIGH FIRE ❑ YES AIRPORT NOISE/ ❑ YES REDEVELOPMENT ❑ YES HAZARD ZONE: ® NO CRASH ZONE: PROJECT AREA: ® NO l3 NO Q ❑ NOT POTENTIAL SIGNIFICANT Z ❑ APPROVAL APPLICABLE EFFECTS WITH O F. MITIGATING MEASURES Z y NO E.I.R. Q ❑ CONDITIONS M Z ® EXEMPT ❑ E.I.R. REQUIRED BUT NO W Z ® DENIAL Z p Class 15 311(a) SIGNIFICANT EFFECTS Q W WITH MITIGATING 1 2 Q LL MEASURES Co O ❑ CONTINUANCE TO Z ❑ NO SIGNIFICANT ❑ SIGNIFICANT EFFECTS W EFFECTS SEE ATTACHED E.R.C. W MINUTES Q ��T� PLWOM PAGE 1 OF t (4-901 Exhibit 112" Variance No. 93-11 Agenda Item # 6 Hearing Date: 9-21-93 Page 1 REQUEST Under the authority of Development Code Section 19.72.030(2), the applicant requests a Variance of Development Code Section 19.22.060(G), to permit an off-site freeway adjacent sign for a proposed 11.44 acre community commercial shopping center. LOCATION The future 11.44 acre shopping center is to be located on the west side of University Parkway, south of College Avenue, north, across Varsity Avenue from the Scottish Rite Temple. The freeway adjacent off-site sign is proposed for the property occupied by the Scottish Rite Temple and located on the west side of University Parkway, between Interstate 215 and Varsity Avenue (See Location Map, Attachment A). BACKGROUND Shopping Center The 11.44 acre 103,495 square foot community commercial shopping center was approved under Conditional Use Permit No. 92-24 on June 22, 1993. The proposed center will include a 40,600 square foot grocery market as the primary anchor tenant, a 22,500 square foot secondary anchor tenant, four fast food drive through restaurants, each an average of 3,300 square feet in area, and approximately 27,095 square feet of in-line retail space. The shopping center site is located at the northwest corner of Varsity Avenue and University Parkway, and has no direct frontage on the Interstate 215 freeway. Variance Request Development Code Section 19.72.050 states that the Planning Commission can approve a Variance application only if all the findings contained in that section can be made. As noted in the analysis section that follow below, granting Variance No. 93-11 would permit a use (an off- site sign) that is expressly prohibited by the Development Code regulations governing the parcel. Thus, Finding No. 5 cannot be made and the Planning Commission cannot approve the Variance. The question then arises, of how the applicant was allowed to make application for the Variance if the City is precluded by the Findings from ever approving the Variance. The answer is that the authority under which the applicant's Variance request was filed is established by Development Code Section 19.72.030(2). Pursuant to that section, a Variance request may be filed requesting the modification of sign regulations. On several occasions prior to the Variance Variance No. 93-11 Agenda Item # 6 Hearing Date: 9-21-93 Page 2 filing, staff met with the applicant and informed him that the City would not be able to approve the Variance request because of the Development Code and General Plan inconsistency of the request, and that staff would not support any efforts to amend the Development Code or General Plan to create provisions allowing such a request to be approved. DEVELOPMENT CODE AND GENERAL PLAN CONFORMANCE The proposed off-site freeway sign is neither consistent with the Development Code or the General Plan as noted below. DEVELOPMENT CODE CONSISTENCY The proposal is inconsistent with the Development Code for the following reasons: O The off-site sign is a use expressly prohibited by the Development Code. Section 19.22.060(G) prohibits off-site signs, with the exception of replacement billboard signs, residential kiosk signs, and bus shelter signs as outlined in Development Code Section 19.22.080. O The 11.44 acre shopping center does not have any freeway frontage. Development Code Section 19.14.020(6) requires a property to have a minimum of 300 feet of freeway frontage in order to be allowed a freeway adjacent sign. CONSISTENCY WITH GENERAL PLAN POLICIES The proposal is not consistent with General Plan Policy 1.45.5 which requires that signage be limited to the purposes of the building, business, tenant or address identification. The proposed freeway sign would identify a business located off-site in violation of the intent of this policy. ANALYSIS DEVELOPMENT CODE STANDARDS Development Code Section 19.22.030 defines an off-site sign as follows: Any sign which advertises or informs in any manner businesses, services, goods, persons, or events at some location other than that upon which the sign is located. It is clear from this definition, that the proposed freeway sign is an off-site sign. As noted elsewhere in this staff report, the Development Code expressly prohibits off-site signs. Variance No. 93-11 Agenda Item # 6 Hearing Date: 9-21-93 Page 3 Development Code Section 19.14.030(6) requires that a property have a minimum of 300 feet of freeway frontage in order for a freeway adjacent sign to be permitted. The site of the proposed sign does in fact have in excess of 900 feet of freeway frontage, and the Scottish Rite Temple is warranted a freeway adjacent sign. However, the proposed 11.44 acre shopping center is not freeway adjacent, is not part of the Scottish Rite site, and does not have any freeway frontage. The shopping center, therefore, is not warranted a freeway adjacent sign. Since the Development Code expressly prohibits off-site signs, the Scottish Rite Temple cannot include any businesses, services, goods, etc. from the proposed 11.44 acre shopping center on any freeway adjacent sign they may wish to establish. REQUIREMENTS FOR GRANTING A VARIANCE Section 65906 of the California Government Code identifies specific parameters under which a variance can be granted. Development Code Section 19.72.050 incorporates these provisions into the mandatory findings that the Planning Commission must make in order to grant a variance. In particular, the Planning Commission must find: O That granting the Variance does not allow a use which is not otherwise expressly authorized by the regulations governing the subject parcel [§19.72.050(5)]. APPLICANT'S FINDINGS Pursuant to Development Code Section 19.72.070, the burden of proof to establish the evidence in support of the mandatory findings rests with the applicant. To establish such evidence, applications for variance must be accompanied by the applicant's own written findings to justify the need for a variance. The applicant's findings are presented in full in Attachment G. STAFF'S FINDINGS Permissiveness of Use The finding of permissiveness of use requires that the granting of the Variance not allow a use which is not otherwise expressly authorized by the regulations governing the subject parcel. As noted previously, Development Code Section 19.22.060(G) clearly and explicitly prohibits off- site signs. Granting of the Variance would allow a use that is expressly prohibited by the Development Code. Hence, the Planning Commission must deny the Variance based on this finding alone. Variance No. 93-11 Agenda Item # 6 Hearing Date: 9-21-93 Page 4 CONCLUSION The Planning Commission cannot grant the request for Variance No. 93-11. Granting the Variance would allow a use expressly prohibited by the Development Code in violation of Development Code 19.72.050. A General Plan and Development Code Amendment would be necessary modifying those sections specifically precluding the use of an off-site sign before the Planning Commission could consider approving the Variance based on the other findings. Whether or not the City should allow off-site signs is a policy issue. Staff would not support any request to modify the Development Code or General Plan to allow off-site signs because of the potential problems it would create. RECONEMIENDATION It is recommended that the Planning Commission deny Variance No. 93-11 based on the attached Findings of Fact (Attachment Q. Respectfully Subm' ted, AL B GHE CP Direct ni g and Bu' . g Services MICHAEL R. FINN Associate Planner Attachments: A - Location Map B - Site Plan C - Findings of Fact D - Applicant's Findings of Fact ATTACHMENT "A" CITY OF SAN BERNARDINO PLANNING AGENDA AND BUILDING SERVICES DEPARTMENT ITEM# CASE VAR No. 93-11 6 LOCATION 9/21/93 HEARING DATE ♦ V � f s +r p .vg. o • •• M; g saMta -Z SITE G .f 01p l , 1\0e L00- v �. C � S G N C"an'Lrwwn.00m m1 m PLAN-VI PAGE 1 OF t (4-90) ATTACHMENT "B" i h � � t i d=00 c at l ,I. i 3 2i � � •_•��1:, i �': i Jam_ 1 imlw 1s n i� ',j , ••� - - J V i [ t Z 44Q • 1 tea. , W - �� ,. O • i 1 ' ce. ~ W > Q nnn� :ullr olusn� __ _ �•_ �� J s.. c It Don �ueli � . V IF6�1 If r�Ci: ATTACHMENT C VARIANCE FINDINGS OF FACT Development Code Section 19.72.050 states that the commission may approve and/or modify an application in whole or in part, with or without conditions, only if all of the findings of this section are made. This means that one negative finding is sufficient to deny the Variance. Thus the following two findings are provided to document the basis for the Planning Commissions Denial of Variance No. 93-11: 5. That granting the Variance would allow a use or activity which is not otherwise expressly authorized by the regulations governing the subject parcel in that the Development Code expressly prohibits off-site signs. 6. That granting the Variance will be inconsistent with the General Plan, in that Policy 1.45.5 requires that signage be limited to the purposes of a building, business, tenant or address identification. ATTACHMENT "D" WRITTEN RESPONSE A. There are special circumstances applicable to the property, including size, shape, topography, location or surroundings,the strict application of this Code deprives such property to privileges enjoyed by other property in the vicinity and under identical land use district classification; The above property is located between the freeway and the property upon which the bulk of the shopping center development will be built. This property contains an existing concern called the Scottish Rite Temple,which will share the sign with Hughes Market. Hughes Markets, Inc., has made arrangements to lease the property and make it a part of the shopping center development. However, since the property is separately owned and divided by public right-of-way, Planning is designating the sign as an Off-Site Sign, even though it does advertise the Scottish Rite Temple which is on the property. Properties directly across the freeway though, have almost identical circumstances in which freeway pole signs have been placed upon properties adjacent to the freeway,but which advertise businesses within a center that are located on properties with separate ownership's and divided by rights-of-way. Additionally,those signs are placed upon properties where there are no present business uses, unlike the proposed sign which wUl be placed upon a property which contains a going concern. B. That granting the Variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and land use district and denied to the property for which the Variance is sought, In addition to those instances already mentioned,a freeway identification sign was recently approved for the property across University Parkway,which is a new commercial shopping center. If this Variance is denied,then our shopping center will be the only one deprived of a very substantial property right that all the other centers in the immediate vicinity have been granted. That is;the righ t to have eaual access to the buying public as It travels by on those main thoroughfares in order to attract its fair share of the available business. C. That granting the Variance will not be materially detrimental to the public health, safety or welfare,or injurious to the property or improvements In such vicinity and land use district In which the property is located; The granting of this Variance has no negative effect upon public health,safety or welfare; or is injurious in any way to any properties or improvements. On the contrary,it may be said that it would have oboe it will morre easily public and other properties,in that as a matter and add help to make the public aware of services that ar necessary in or traveling nearby• significantly to the quality of life enjoyed by persons It is also likely that it would add significantly to properties, values in the vicinity and encourage improvements upon them. That ranting the Variance does not constitute a special�leg privilege inconsistent ch the with D. m 9 the limitations upon other properties in the vicinity and a property is located: There are no other properties in the vicinffy with similar circumstances that have been limited in this use. E. That ranting the Variance does not allow a use or actN"which is not otherwise e xpressly authorized by the regulations ulations governing the subject parcel; e There are no other regulations authorizing this use. F. That granting the Variance will not be inconsistent witti the General Plan: The General Plan does not address this Issue. MUNDELL, ODLUM $ HAWS THOMAS C. MUNDELL ATTORNEYS AT LAW TELEPHONE JAMES A. ODLUM 2175 WEST HOSPITALITY TANS 009) 399,9559 KARL. N. HAWS + SUITE 300 FAC$1MILE WILLIAM P TOOKE SAN BLRNARDINO, CALWORNIA 92408-3240 (909) 393-1036 .4 Professional Corporation A Partnership including a Professional Corporation January 24, 1994 VIA FACSIMILE Mayor and Common Council Attn: Margie San Bernardino City Attorney's Office Attn: Henry Empeno Re: Scottish Rite Temple and Hughes Market Appeal Agenda No. 29 — January 24, 1994 Meeting To Whom It May Concern: I represent Scottish Rite Temple and Hughes Markets concerning the appeal of the Planning Conunission's denial of Variance No. 93-11 Agenda Number 29, currently scheduled to be heard by the Mayor and Common Council after 2:00 p.m. today. We respectfully request that this item be continued to a later date at the request of the City Attorney's office pending a possible resolution of this matter. In any event, I will be appearing in person at 2:00 p.m. to request this continuance in person. I regret any inconvenience this may cause. Thank you for your immediate attention to this matter. Yours very truly, Karl N. f aws KNH:mea � -#32- q c J CD c ^ `_ N D c z W. r A; m O 1 — a � r � L1 0 m C n CD v � s 0 3 ` D n p N z p o r z o a c � � z