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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 , I . . . 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 i. ,iJ:'"Vnp.vGms Mtg: ~.~/ 'e '.' I[ja Item _..5"j "l~7()u'" . :-1\' ~-II /.J. ~ 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 ')CCE - i..;: IVtD-.r'jT'( CL"." '-' I I U~i 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, ~ ...~:~=~,LLP L---~-=-~) .--' Lona N. Laymon -~ LNL 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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'lo"U ~5. c. .J ~,-_:. 1CI:co~"'''-;;;--- #~-.; ~~~_ .;;.'J. ,~iii: iii t.~ .......~E::'"-~ -..... ;.,~~ .......,.r-~......_--- 'j _.~~.-; a '\ - u~-... -:'_-~-. - -.~~ &:.. ~ .~ ~ I =- .. .. ~ .' EXHIBIT F .' 4> 'J I, I 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 111o~(p e e e 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. e e e 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 e tt. e 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: . . . 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 e 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. e ,n e e . 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. e tt e 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 e - e A TT ACHMENT A - LOCATION MAP 1620 W. Baseline Street 'e ~ . i~1 .0" Sin; 001 12! ll~1 ~~t w._ .., a::'" : ~ !/.'~ '0. " , I~ :~ 1- :u i~ , 'Z :0 Ii= 'u e w oJ ,oJ '0 :u i...l i..J <( '~ II) > z f ~ '0 .u I . Cl "0 'z :~.a: 1- 'oJ ~~~ IU !t;i '> ~8:n lu .....I~ If.IlD,, I~ ~~- ~~~ 12 f2~~ iell 'w - e . - . - , - - ... ~! ..J < '-i :r. A TT ACHMENT B - SITE PLAN AOJ.ocENT PROPERTY o q =Jo, ,T, cT.., .J.., T !!i.~.;I:..~~.~...., ~~ -~ ,~ .., ~ . r ~ ~ II! d \ II] '" r~ = i f: i ~ I :;. ~ ;; 1 i ~ - I .. I .. I "- I . I I .. I I .. , I I , ~ '.'- ~I . , I - ! ! i I .' . I - i : , I ." ..., ! .' = -- II ,. ~_.: ~i~-- F,':k.UD-~ . , ).J.ij3dQ:1d J.NJ3IfI"m' ~rn@rnow~[]) .-1:':: ; r" ""i"l6 . ' L'l" ,,! U \)~ OU. O')~ .:rrv OF ~A~ af"'N"'F1~:Na "JFVEI.C~ENr SERVICE-iii ,.,l;:".,ATUJ;NT ~ w is! .. ~ I w 25 ..J ~ ~ . II w ~ I! '" I ~ Z ::J ~ ~ . . A TT ACHMENT C - SITE PHOTOS -".- "'-n ~IMMflS ~OOO STO~~ E&M Recycling: 1620 W. Baseline August 1, 2006, 6: 17 p.m. Shopping Carts abandoned adjacent to the site on Baseline . , i : . , ..L ;;"'1 , ~...:...' I . . ATTACHMENT C - SITE PHOTOS .~t. ~ ;p, .~ , -t ...J- ~(- . ; ~f: lY \ . ......1... ." ,. I . _.J~~li'.il: : 1.,.JlL I ---=-:i I I . I II II / I' ff'tr1I~r I' . r~----:,--,,-, '11 "I I. " Ii I' : Iii ! I,; '1 I I I , , : I ~ I I; I 'i.,. E&M Recycling: 1620 W. Baseline July 31, 2006, 7:25 p.m. Shopping cart abandoned on site . . ATTACHMENT C - SITE PHOTOS . .Jj ..... II ,. .~ i, , ' E&M Recycling: 1620 W. Baseline August I, 2006, 6:21 p.m. Shopping carts abandoned on site and loitering on site . . A TT ACHMENT C - SITE PHOTOS E&M Recycling: 1620 W. Baseline August 2, 2006, 6:41 p.m. Shopping cart abandoned west of the site on Baseline . . A TT ACHMENT C - SITE PHOTOS . .:." :-0;' ."",'~--"'--'""'~..tl_~,':" ,d;:~~~-~.d~.. -......l~~""'-,..., ~~~"!.~,.,.~,.J, ''---~' . E&M Recycling: 1620 W. Baseline July 30, 2006, 4:21 p.m. Graffiti on trash enclosure . . ATTACHMENT C - SITE PHOTOS -- E&M Recycling: 1620 W. Baseline July 30, 2006, 4:22 p.m. Illegal sign on Baseline frontage , e e e . 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 w 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, ^ //~JJ Terri Rahhal, Principal Planner Ene. Conditions of Approval Cc: Address File e e e 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. e 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. e 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. 2 e e e 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 3 e ....\1'~ :=~.. "./.~ .~.... . .~;'~~'~.' 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 e e. e 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 "'....rnv.......,. . . oPt: 06-0$9 Was Allllmwd" /J d) ~~~>-_./ e On s--I c- (J b__:,. ! -......-- ~. -.. --- AlWCEW PROPffiTY II = ~ I '" N ~ " I .. " 13 I . N '" 0- I " '" '" I 0 N ~ I ~ :: I .. ~ I :! ::! I :: ;: , I ,;! ~ w III ,.. '" 9J.Ill ~~ ~W w I ~ ;i . II [;j w ~ . II I ~ ~ )J.1l3~ OO:M'O'f [Ri m@mowm[Q) viM; 1 5 2006 l:>?"t. 0 u - 0 s-y CITY OF &AN BEA~ARDINO IJEVUOPMENT SEfMCES f)(PAMMl;NT ~ e z o fi ::> w ..J w :.:: U) o S2 . > ,z if ':e 18 I (!) ! I~ l~ Ifrl e: :aa Iw \ I \ i ~I \1 ----:; - -" --I ~ , '" I ;' ~ ;, W , , , :> i a. e i i ~ . . ~ > .~ 'z o II:: u.. i . nil: i_.__ .. '- - ~ , i '" I i : i : I _____ i f / i I , ! - I \1 i /' -- --. 1 i . ~ w > :.:: ~ CD . i k I ... i ~ w :; W 10 u; . e - e -: e .J,,; ':.~ . . ~ ~ 1 , r t l - r \ ., .i' t.... .I,r .1<;1., ~. Jr-""'I r ,-~.t I . ...-) ,- -..?..t~~ -';':>'0--' -' :., ><';~:i' ~?i e 4t) e. /b(Y ..1. &aSd,;u_ CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT 300 NORTH "D" STREET, SAN BERNARDINO, CA 92418. (909) 384-5057 PROJECT REVIEW ROUTING I PROJECT: DEVELOPMENT PERMIT I NO. 06-054 I TO: ARNE LOVNASETH-PLAN CHECK , GERI FRANSKE-FIRE DEPARTMENT FROM: DATE: PLEASE RESPOND BY: DESCRIPTION: A request to establish a small container recycling center in the parking lot of an existing multi-tenant center located at 1620 W. Baseline Street. APN: 0143-161-20 OWNER: Mary Townsend APPLICANT: Eugene Vortman LAND USE DESIGNATION: CG-2. Commercial General ENVIRONMENTAL DETERMINATION: Exempt from CEQA, Section 15311 - Accessory Structure COMMENTS: (lTSE ADDITIONAL SHEETS IF fI.'ECESSARY) ,- Citv of SIlIl Benumfillo I . e :vell11/111:llt sm'ices D~I'llrtlllellt Development Permit DP-l Application Form DP-l=: T/Pl 06-051 Project address: I C. z.. 0 W. C>~$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. ::.,. L..o~ 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: ~''''''TO I c.A 92. '} 7' 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: s...... .. '-'- 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 Lf~" 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 e e e 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 . . .PPROVED . 'bf1 ofo-o~<j Was APPtiJVlld. lid I () z.:r5-. 'U-Y_ AOJ.OCEIiT PROPERTY i~1 q ~T~ ~T~ ~T~ .0' " 8~. ..01 '" qT~ ~~i T ~I T ~. " :;~I ..'. 0:, T ~w !~f .~ fO'i .~ .... II! II] ~ , ,. d Jf------: .... .. ---... \ " i i=' I ~ I ':..:' '" I ,. i~ 8 ~ w ~ " I c ~ ...J I~' '" i)j I N . ;Ii '" Ii (,) " I~ . I " ez .., Q " " .. ;- l- I " 1(,) IW N i..J ~ '..J I N '0 .. (,) . ..J . - I :: ..J II < . :: :& '= I !;j fI) , ~ '= I ~ t'l > :!' Z Iol If .;; I ~ < .:& V :! '0 '" " !(,) I I w z Ie) :J ',,0.0 ;: w Iz T,W . ~ ,- u;~~: I :2 . Id ~ili~ "f ,> e '" Ifrl &0 ~, ~!~ illi: OON i:& ~I-;: A.l"3dOW lN3::.ro. Ill/l ~ ~@~O\'!7~[Q) .'~ MAR 1 5 2006 . \) ~-:r OCo - 0-)'1 crTV OF 'AN BERNAROINO OEVELOPJ.lENT SE1WICf.S Of~"fllMENT >. z_ CeI) elt:;CD 'c .J= OCD Z. __ ..1m u. ~J we D::N :lEU). 1IlI.... w ".. ~O tt, z o ~ ::> w ...I W ~ U) o S2 . >- z 2: :2 o U C) Z ::; U >- U ~ III w " I -----: - ----- --rTl-.-- ~ , . ! i I - -I ~ . ~ . I . ~ w :> 'I- 'z o a:: u.. .' -.... . ~ w i s: 0. o I- , , ; .; ! i i ~ , . ~ w :> ~ u c( m . i i ~ ~ w :> w 'i C U) i . e e e e I ?'- l .'. " f r i I " .J e ... -f '<'l'.~."'" "'.,., 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 II/~ e It e 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 e e e . 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