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HomeMy WebLinkAbout2005/06/22 - Minutes - PC-HPC CITY OF RANCHO CUCAMONGA PLANNING COMMISSION MINUTES Regular Meeting June 22, 2005 Vice Chairman McNiel called the Regular Meeting of the City of Rancho Cucamonga Planning Commission to order at 7:00 p.m. The meeting was held in the Council Chambers at Rancho Cucamonga Civic Center, 10500 Civic Center Drive, Rancho Cucamonga,California. Vice Chairman McNiel then led in the pledge of allegiance. ROLL CALL COMMISSIONERS: PRESENT: Richard Fletcher, Larry McNiel,Cristine McPhail, Pam Stewart ABSENT: Rich Macias STAFF PRESENT: Brad Buller, City Planner; Dan Coleman, Principal Planner, Michael Diaz, Senior Planner, Kevin Ennis, Assistant City Attorney; Douglas Fenn, Associate Planner; Donald Granger,Associate Planner; Shin'i Griffin, Office Specialist II; Dan James; Senior Civil Engineer, Louis LeBlanc, Assistant Planner, Lois Schrader, Planning Department Secretary ANNOUNCEMENTS Brad Buller, City Planner announced a workshop would immediately follow the Planning Commission meeting in the Rains Room. APPROVAL OF MINUTES Motion: Moved by Stewart, seconded by Fletcher, carried 4-0-1 (Macias absent), to approve the minutes of June 8, 2005. Motion: Moved by Stewart, seconded by McPhail, carried 4-0-1 (Macias absent), to approve the adjourned minutes of June 8, 2005. PUBLIC HEARINGS A. TENTATIVE TRACT MAP SUBTT17424 - HUNSAKER & ASSOCIATES IRVINE, INC. - A request for a condo map related to 414 multi-family apartments (including live work units) on 17.3 acres in the Haven Overlay District, located at the southwest comer of Haven Avenue and Foothill Boulevard - APN: a portion of 0208-331-37. Related Files: Development Review DRCDR00-79, Development Review DRC2002-00720, General Plan Amendment DRCGPA01-01 B, Development District Amendment DRCDDA01-01, Development Code Amendment DRCDCA01-01, Tentative Tract Map SUBTT16179, and Pre-Application Review PAR00-07. This action includes approval of an Addendum, pursuant to Califomia Environmental Quality Act Guidelines Section 15164, to the previously adopted Mitigated Negative Declaration that was adopted by the City Council on July 18, 2001. The Mitigated Negative Declaration addressed issues for Air Quality,Traffic, Hazardous Materials, and Noise for the subject site. The environmental assessment was circulated to the State Clearing House. There have been no significant environmental changes to the project site since the adoption of the aforementioned Mitigated Negative Declaration. Doug Fenn, Associate Planner, presented the staff report. Vice Chairman McNiel opened the public hearing and asked if this is simply a change of"for rent" units to "for sale" units. Mr. Fenn replied that it is. Ted Frattone, 3 Hughes Drive, Irvine, stated he represents the applicant. Commissioner Fletcher asked if they planned to use the same stone contractors for this project as was used for the commercial portion of the development because he observed many stones "popping out"from their places in the commercial development. Mr. Frattone stated he was unaware of who the contractor may be. Mr. Fenn reported that a different contractor would be used. He commented that he notified the developer of stones popping out of the walls and also to remove the mounds of fill dirt that have been dumped on the remaining open portion of the property. He added that they were notified 3-4 months ago of the problem and that the open area was to be a green space until it was finally developed. Commissioner Fletcher commented that he is not familiar with stone construction, but he and Vice Chairman McNiel noticed the stones popping out of the walls and he also saw material leaching out of the walls. He stated the quality of workmanship is not good. Mr. Fenn added that there could be vandalism occurring. Vice Chairman McNiel closed the public hearing. Commissioner Stewart noted that the request is a straightforward one. She reported that Multi-family units have been approved and are under construction, and to convert rental units to "for-sale" condos is a positive move and also helps with affordable housing in the area. Motion: Moved by Stewart, seconded by McPhail, to adopt the Resolution of Approval for Tentative Tract Map SUBTT17424 as presented. Motion carried by the following vote: AYES: FLETCHER, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: MACIAS - carried B. TENTATIVE TRACT MAP SUBTT17277- G & L COMMERCIAL, LLC-A request for a single parcel subdivision for Industrial Condominium Purposes in the General Industrial District (Subarea 4), located at 9201 - 9299 Archibald Avenue - APN: 0209-211-14. Related File: Minor Development Review DRC2004-01251. This project is categorically exempt from the requirements of the Califomia Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15315 (Class 15 Exemption - Minor Land Divisions). Donald Granger, Associate Planner, presented the staff report. Vice Chairman McNiel opened the public hearing. Planning Commission Minutes -2- June 22, 2005 Bob Gallishaw, 3419 Via Lido, #438, stated he represents G & L Commercial. He reported that along with the conversion to condominium units,the project entails the total face-lift of a dated, 30- year old structure. He said the renovation takes the existing Spanish style to something much more updated. He said the change would also change the units from multi-tenant rental/lease units to"for- sale" condos. He remarked that their company has been very successful doing this. Vice Chairman McNiel asked what would happen to the current tenants if they were unable to purchase their unit. Mr. Gallishaw commented that some will not be able to buy, but with the liberal loan programs offered by the Small Business Administration (SBA)with only 10 percent down, many will try to do so. He noted that rents also rise for businesses that continue to rent elsewhere instead of buying their space. Vice Chairman McNiel asked for clarification of the time line. He asked if when the conversion from rental unit to purchase occurs, when does the rental contract expire for the current occupants. Mr. Gallishaw stated that as soon as the map is recorded, the conversion would begin and that the units would then be offered for sale. He reported that all the month- to -month tenants would be offered the option of purchasing their unit or vacating. He said that all the tenants have been made aware of the conversion plans and some of the tenants are making their arrangements already. Commissioner Fletcher asked if there would be 52 units and what size would they be. Mr. Gallishaw noted that the units range in size from 1,200 square feet to 4,000 square feet for a total project size of 100,000 square feet. He commented that many purchasers would buy multiple units to accommodate the needs of their businesses. He remarked that he does not expect 52 transactions to take place but more than likely around 30. Vice Chairman McNiel closed the public hearing. Commissioner McPhail said the project is straightforward and is in the best interest of the community. Commissioner Fletcher said the renovation lends a nice enhancement to a tired building. Motion: Moved by McPhail, seconded by Fletcher, to adopt the Resolution of Approval for Tentative Tract Map SUBTT17424 as presented. Motion carried by the following vote: AYES: FLETCHER, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: MACIAS - carried C. CONDITIONAL USE PERMIT 88-45 AND ENTERTAINMENT PERMIT 91-03 - MARGARITA BEACH-A public hearing to examine the business operation to ensure that it is being operated in a manner consistent with conditions of approval or in a manner which is not detrimental to the public health, safety, or welfare or materially injurious to properties in the vicinity. The Planning Commission will consider modification or revocation of the approved Conditional Use Permit and Entertainment Permit. (Continued from May 11, 2005) Mike Diaz, Senior Planner, presented the staff report. Vice Chairman McNiel asked the Commissioners if they had any questions of the staff report. Planning Commission Minutes -3- June 22, 2005 Commissioner Stewart asked if the driveways and entries are blocked on Ramona Avenue, how would that be handled and who facilitates that. Mr. Diaz reported that either barriers would be placed by the Margarita Beach staff and/or a security guard would be stationed at the Ramona Avenue driveway to direct patrons leaving the site to exit directly onto Foothill Boulevard instead of using Ramona Avenue. Brad Buller, City Planner noted that staff has worked with the City Engineer,that staff has been very cautious, and that we are trying to prevent a traffic problem on the public right-of way. Commissioner McPhail asked what time Mr. Buller and Mr. Diaz visited the site. Mr. Buller reported that it was shortly after 11:30 p.m. He commented that although they did not ask for a menu that night, people were eating. Vice Chairman McNiel opened the public hearing. James Reiss, 10535 Foothill Boulevard, Suite 410, Rancho Cucamonga, stated he is legal counsel for Mark Davidson, the applicant. He noted that he was here for the meeting in March and that at that meeting 21 people testified regarding the business operation. He commented that he would like to move forward from this point and not rehash old issues. He said much of what was presented at the time were things that occurred pre-2005. He said he would like the Commission to define what they would hear from the residents. He said he would like their focus to be on what has been done since that time to address this issues presented at the prior meeting. He commented that in his estimation,the empirical evidence shows that only two calls had been receiJbd over the last 5-month period that could be directly attributed to the business operation of Margarita Beach. He said he would like to limit the comments of the residents tonight to specifics of the last 4-6 months so they can address it. He said that he takes the view that, "if there was no police report, than it did not happen." He noted that Mr. Davidson does not object to the conditions in the resolution. He commented that if the discussion becomes directed towards the issue being a moral issue, or whether or not the operation is allowed,that we are not here to judge that there is a bar,we are here to determine if they have violated some code or some zoning issue as it relates to the business operation. He said he and Mr. Davidson support the adoption of the report and resolution and if there were any fine-tuning on the conditions, Mr. Davidson would be open to that. Mark Davidson, 9950 Foothill Boulevard, Suite S, Rancho Cucamonga, stated he is the owner of Margarita Beach. He noted that many changes have been made to be sensitive to the neighbors concerns and that he wants to deal with the facts. He remarked that his business is not the sole cause of the problems being reported by his neighbors and that the residents have overstated the problems. He said that he would accept sole responsibility for making the corrections to all the issues. He claimed that since the meeting with the City Council on February 2, there has not been one single call for service to the Police Department from the neighborhood. He enumerated his changes that are now in place as follows: 1. Provided security on Estacia Avenue to prevent their customers from parking in the neighborhood. 2. The security guards are no longer rotated for better consistency and effectiveness. 3. The local residents are prohibited from walking to and from Margarita Beach to prevent noise issues on their return home. 4. His staff inspects the neighborhood for trash 3 times a day. He(Mark Davidson) personally inspects for trash 2-3 times a day. Planning Commission Minutes -4- June 22, 2005 5. The west exit onto Ramona is closed at 1:15 a.m. to ensure traffic is directed onto Foothill Boulevard instead of the neighborhood. 6. He personally canvassed the neighborhood and requested input and suggestions from the residents and gave all of his phone numbers and a letter to the residents so that he could be contacted in the event of any problems. 7. He attended the City sponsored meeting with the neighbors to work on their concerns and he promised to attend any future neighborhood watch meetings. Mr. Davidson stated he set a goal to reduce the calls for service (police) to address the nuisance issue, and he believes there were only 6 calls in the last 3 months, 4 of which were police initiated and that 2 of those calls were for regular"bar checks." He estimated a decrease in calls of about 60- 90 percent over a 2-year period. He commented that this was accomplished by making the operation of this business his top priority. He contacted Police Captain Ortiz and Sergeant Morrison on a weekly basis and set up monthly meetings to discuss the issues; he offered bonuses to his security personnel to encourage them to be proactive; he added parking staff; he increased his security staff; he put into place a cab voucher program to transport customers home free of charge; he evaluated and reduced the number of advertisements distributed to reduce the overflow crowds. He said that between Planning Staff, Fire, Code Enforcement, ABC, and the Sheriff, his business has had over 100 random inspections in the neighborhood and that the Sheriff even performed uniformed and undercover checks of the premises. He said three City Council members personally checked the neighborhood. He reported that among all of those checks, not one person reported any evidence of his customers impacting the neighborhood since the last meeting. He said there was limited evidence supporting the complaints prior to the February 2 meeting. He said there is no evidence following that meeting. He said that he was quoting Captain Ortiz of saying that"if there was no report then it did not happen." He commented that Mayor Bill Alexander canvassed the neighborhood and he could not find any complaints and he congratulated him for his efforts. He said City Planner Brad Buller and Senior Planner Mike Diaz stated he is doing a good job, he is cooperating, and there was nothing else he could do except maintain the current standards. He noted that Captain Ortiz said repeatedly he is impressed with Mr. Davidson's cooperation, he sees no evidence of impact on the neighborhood, and he saw no need to restrict the Conditional Use Permit. He said the most recent complaint from the residents is that they do not want him to offer drink specials and they object to the models shown on his flyers. He said he has been stealing the models photographed in his ads from Frederick's of Hollywood and from Victoria Secret for years and they should direct their complaint there. He said if the Commission has any guidelines for the advertising he should use then he will comply. He noted that he has shut down his website because the neighbors found it objectionable. He commented that there is a concem that he will revert to the old way of doing business once this review is all over. He commented that Planning staff is suggesting new conditions to prevent"backsliding"and that the neighbors can request a review at any time. He said he would hope in the future, he could work directly with the neighbors to resolve any issues. He said the only neighbor he has heard from since the last meeting is "Pat." Commissioner Fletcher said Mr. Davidson asked if the shutdown of the website is temporary or permanent. Mr. Davidson said if you guys want it to be permanent then it is permanent. He added he has no intention of starting it back up. Vice Chairman McNiel commented that Mr. Reiss requested that comments be restricted to information relevant to the last 5 months and although he(Vice Chairman McNiel)believed that was a pretty good idea, he would not enforce that. He said he is a firm believer that everyone should have a say in the matter but that he asked that those offering testimony not dwell on issues that have already been corrected. He then opened the public hearing. Planning Commission Minutes -5- June 22, 2005 Christine Cameron, 8017 Pasito Avenue, Rancho Cucamonga, stated the residents'families are in attendance tonight including the 2 children she is adopting. She commented that the advertisements/flyers sent out by the applicant indicate BYOB, but in this case,the last'B'does not mean bottle. She said this is the kind of traffic that is coming in their neighborhood. She said she does not want this activity occurring within 1,000 feet of her home. She said they have not had the same kind of problems since February, but that they have had to do a lot to keep their families safe from this business. She said it is shocking with everything that has gone on. She said they have had to put up with a lot of problems. She noted her children ask why there is a security guard on the street. She said there should not be a need for one. Commissioner Stewart asked when the flyer she referred to was sent out. Mrs. Cameron referred to another unidentified speaker in the audience that replied, "2 weeks ago." Mrs. Cameron said it has been difficult to explain to her 6-year old as to why there is a need for security, i.e., "well honey,we have a bar that is really close, and the reason he is there is because he has this kind of traffic that we don't want you to deal with so he (the bar owner) has to put the security there in order to make our lives a little bit more comfortable in our neighborhood." Commissioner Fletcher asked what she has experienced in the last 3 months. Mrs. Cameron said there has not been anything going on because of the security that has been put in place. But that is what had to be done in order to live the life we want in our neighborhood. David Mosher,8026 Cambridge Avenue, Rancho Cucamonga, stated the rear of his house abuts the rear of Margarita Beach. He reported that he has called at least 6 times this year and some of those calls occurred in the last 3 months. He said he can verify that with his cell phone records and he does not understand the information regarding calls for service presented by Mr. Davidson. He stated he still experiences issues with noise, car homs going off, customers urinating along the back wall, illegal parking in the back alley, customers yelling obscenities at each other, customers using the emergency exit which his understanding was not allowed by law, and cars racing in the back alley. He said he has lived there 2 years and had he known this was going on in his own backyard, he never would have moved to Rancho Cucamonga. He quoted an officer when he called for service was, "what do you want us to do,they are drunks." He said he was shocked and offended,it needs to stop and that the business has become a nuisance. He added that last night there were two guys loudly singing to one another in the open emergency exit. He said the police must have had numerous calls, because when they called, they were put on hold. He presented a petition bearing 28 signatures from his nearby neighborhood streets that states,'We the undersigned hereby ask the Rancho Cucamonga Planning Commission to consider revoking or suspending Margarita Beach's Permits for being a public nuisance, repeatedly disturbing the peace,not abiding by the Law, and encouraging public drunkenness." Commissioner Stewart asked if he had placed his calls every other week since February. Mr. Mosher said he attended the last meeting with the Planning Commission. Commissioner Stewart asked if he was aware of the problems noted such as public urination. Mr. Mosher stated that he was present at the last meeting and yes;the calls were placed after that. He remarked that a neighbor had damage to his property and now he has felt the need to install dual pane windows to mitigate the noise, he can't sleep anymore. Commissioner Stewart asked if he ever directly spoke to the owner at Margarita Beach. Planning Commission Minutes -6- June 22, 2005 Mr. Mosher stated he had not, he called a couple of times and he could never get through. He commented that his neighbors are tired from dealing with this for the last 9 years. He said he has not seen any changes. Vicky Scimone, 8016 Pasito Avenue, Rancho Cucamonga, expressed gratitude to the Police Department for upholding their promises made to the neighborhood since the previous meetings. She said she has noticed a marked increase in police presence and they now have a neighborhood watch program in force. She commented that she fears the presence will leave once the issues have been resolved. She remarked that she believes Margarita Beach is an obvious detriment to the community and they allow their customers to behave uncaringly in the neighborhood. She stated that Mark Davidson and the City have ignored the complaints about Margarita Beach for years. She said Mr. Davidson, in spite of his claims to the contrary,was aware of the problems being caused by his business. She reported that he had two previous meetings with Mr. Sanchez and the police. She said the residents would no longer allow their quality of life to be stripped from them by this establishment. She remarked it is no longer just Mr. Sanchez vs. Mr. Davidson; it is all of the neighbors. She noted it was not until his permits came into play that Mr. Davidson showed any care for what was happening to his neighbors. Ms. Scimone said that she is frustrated with the lack of performance from the office of the City Planner and that they have accomplished nothing by going through his office. She commented that this indicates a bias toward Margarita Beach. She said she feels they have jumped through hoops such as to renew their Neighborhood Watch program, attend a mediation meeting to resolve issues prior to the public hearing, and meet with the other residents to formulate ideas to restore their quality of life. She remarked that they attended the mediation meeting and it was a joke in that Mr. Davidson was given full reign to speak and the residents were hushed if they wished to make a point or challenge things that were said. She added that nothing was resolved; the ideas formulated by the residents were rejected by the City, and so they came up with another list of suggested conditions as requested by the City. She noted that the new list had ' 14 recommendations and only one of the conditions in the resolution is from their list and that no repercussions are being imposed on the establishment. She said the City Planner's office showed total disregard for their complaints and for what is best for everyone involved. She added that words like "shall" and "will" are replaced with "possibly"and "maybe." She claimed that the City Planner has no intention of enforcing the Conditional Use Permit. She stated that considering all of the evidence presented in past meetings and in this meeting, Margarita Beach is clearly and blatantly defiant in regard to their permits. She said she believes Mr. Davidson should be penalized heavily for the infractions to send a message to all business owners that the City will not tolerate the disruption to the community due to the said defiance. Commissioner Fletcher noted that she had mentioned the list of suggestions. He asked if she had read the staff report and the changes to the conditions. Ms. Scimone said that only 1 of 5 suggestions were used, specifically the one dealing with the security guards. She referred to the list shown in the agenda packet shown as Pages C-12 and C- 13. Commissioner McPhail asked if things had been better in the last 2 months. Ms. Scimone stated they are extremely better, and in a specific incident the security guard was helpful. She said the issue is that this is the third time they have asked the City for help with a business that is in clear violation of their Conditional Use Permit and Entertainment Permit. She asked what penalties are going to be imposed on him for these violations. She stated that nothing is being done in that regard. She remarked that they will be back before the Commission in 6 months because when the"heat is off,"things will go back to where they were before just like the two times previously. She asked that they move forward and keep moving forward and to stop wasting the residents' time and the City's time. She said he is taking that away from us, "enough is enough." Planning Commission Minutes -7- June 22, 2005 Jean Mosher, 8026 Cambridge Avenue, Rancho Cucamonga, said he lives within a few hundred feet of the back of the building, reported that noise is still an issue. She indicated that the nature of the business is such that it does not belong where it is. She remarked that the Commissioners would not like this business in their backyard. She added that when the wind blows it is smelly,you could smell the urine. Jim Olson, 9805 Estacia Court, Rancho Cucamonga, expressed his disappointment of the recent actions of the Planning Commission. He stated the current conditions are totally inadequate and without merit and that they do nothing to address the problems presented by Margarita Beach and that it is like putting a band-aide on a broken arm. He stated that although Mr. Davidson promised to cease his radio and promotional advertising, the ads have resumed on 103.9 FM. He said Mr. Davidson has redefined the nature of the business without any consequences and it appears there are factions in the City that favor Mr. Davidson. He claimed the establishment began as a restaurant with ancillary serving of alcohol and now it is a nightclub. Mr. Olson referred to the Municipal Code 17.04.090/Adult Entertainment Business section. He stated the business is located within 1,500 feet of residences and that Margarita Beach is not located within the Industrial Area Specific Plan, and therefore these activities place the business in violation of the Municipal Code. He mentioned that he believes everything asked of the residents so far have been "dilatory tactics employed by the City." Mr. Olson stated the City is allowing Mr. Davidson to conduct business as usual. Mr. Olson asked the Commission what they fear and "what is the power Mark Davidson lords over the City?" He commented that if the City has not found any violations it is because they are not looking for them. Mr. Olson stated that anything less than a total review of the permits should be forwarded to the City Council and anything else is unacceptable. He referred to Municipal Code Section5.12.100, which states that suspension, or revocation of a permit should be considered if the permittee has "conducted a permitted business in a manner contrary to the peace, health, safety and general welfare of the public." He added that sections of the Resolutions of Approval for the Conditional Use Permit and Entertainment Permit have provisions within them that state that the permit will be brought to the Commission for review for any adverse effects such as public health,safety morals,or welfare, illegal, improper or disorderly operation of the business. He also cited the adverse effects on adjacent businesses, operations,or residential uses. Mr. Olson demanded that the Commission do its job. He then cited the 2001 General Plan which states the Planning Commission states: "A belief in our families and the need to promote their well-being," and that they also resolved to "A determination that our citizens and their property would be secure." He stated that we now have a "red light district" and nothing has been done. Commissioner Fletcher commented that Mr. Davidson is on his best behavior because"his feet have been put to the fire." Commissioner Fletcher asked if Mr. Davidson's business operation is any better. Mr. Olson said he has found some beer bottles. He noted they have improved because they had to. He remarked that the real question is what type of business is he running? He stated his permit was for a restaurant with incidental sale of alcohol. He remarked that that is the same permit he is currently operating under without changes or amendments. He asked how we could allow this to snowball and degenerate into what it has become. He said what he has is not the same thing. He added that this is an unfair situation because the residents did everything the City asked them to do and favor is being given to Mr. Davidson and the City is not enforcing its own policies. He said that he is in direct violation of what we have set and he could not understand why the City has not enforced that. Commission Fletcher said that is why we are here today. Mr. Olson remarked that over the course of the last 9 years the residents have become a problem. He added that they are not going away and they will not let this type of business impact their quality of life, nor let their children, families and the elderly to continue to be impacted by this. Planning Commission Minutes -8- June 22, 2005 Barbara Olson, 9805 Estacia Court, Rancho Cucamonga, presented for the record a postcard advertisement for Margarita Beach, found in the parking lot since the last Planning Commission meeting. She remarked that the BYOB means Bring Your Own Bitch. She said other people apart from the customers of the bar go into this shopping center and people should not be exposed to this type of business operating in her neighborhood. Victoria Sanchez, 9869 Estacia Court, Rancho Cucamonga, said she was only 13 years old when the trouble with this business first began. Ms. Sanchez used the overhead projector to make her presentation displaying copies of advertisements and flyers for various promotional events held at Margarita Beach. She pointed out an advertisement for a"grand opening"on June 16 and noted that Mr. Davidson claimed he had stopped his radio promotions. She produced many pictures, and promotional advertisements allegedly photographed at the business. She commented that his restaurant is really adult entertainment. (Copies of the pictures are included in the official record). It included pictures of his staff approaching the cleavage of a bar patron with his tongue. She said the behavior is more indicative of a nightclub in Las Vegas. She included a photo of a patron taking a "sex shot"(alcohol is poured into the mouth of a patron that is in a lower position beneath a scantily clad waitress). She produced pictures of waitresses'rear ends and them grabbing each other's rear ends, girls fondling and licking each other's breasts. She pointed out a patron whose breasts were only covered with "pasties." She also displayed a photograph of two women "making out." She pointed out the dress code posted outside the door that does not allow tank tops but they allow women to attend practically nude. She displayed an advertisement for a "Pimp and Ho" party wherein patrons were offered a prize of $1,000 for the best pimp and the best ho. She also had pictures of a patron smoking within the establishment,which is illegal in bars in California. She said these pictures all came from their own website. She reiterated that this activity is not what you would see in a restaurant, it is a red light district, a nightclub, and a sleazy bar. Peggy Sanchez, 9869 Estacia Court, Rancho Cucamonga, stated that the Conditional Use Permit says the business is a restaurant but it is really a nightclub. She noted that even the Clark telephone directory 2004-2005 lists Margarita Beach within the nightclub section of the directory; it is not advertised as a restaurant. She reported that the hours for the business are not typical of a restaurant/bar with a 2:00 a.m. closing time. She mentioned that food is served and remarked that what he advertised is tacos and the like. She noted that Mr. Buller and Mr. Diaz did not stay late enough to really see what is really offered late into the night. She said it really appears the focus of the business is as a nightclub. She noted that the copy of the Entertainment Permit (EP) should have been attached to the report and that it is not adequately addressed in the report. She asked that the Entertainment Permit also be reviewed in conjunction with the Conditional Use Permit(CUP) and that at the least, a specific restriction against adult entertainment be added. She said she has a concern with the draft resolution including the hours of operation, specifically Condition No. 13 should reflect 8:00 p.m. to 2:00 a.m.;the original resolution indicated that when 50 percent capacity is reached,the number of security personnel would go from one to two, but now it has been bumped up to 75 percent;the original CUP has some different verbiage than the EP, such as in Condition No. 10. She noted the EP refers to impacts on the residential uses. She expressed concern that the CUP will be talked about; the EP would be left out, and then the permits will be rubber-stamped. She stated that entertainment is the primary focus of this business and they should be reviewed together. She added that the level of investigation has not been enough. She noted that for City staff to go to the business one time at 11:30 p.m. is not enough, that surprise visits need to be made. She said to check the security. She commented that the City should have an implementation and monitoring plan. She said he (Mark Davidson) is out of compliance and that a 'reasonable person' could see that. She reported that Mr. Davidson is an experienced businessman, he has owned bars his whole adult life, and that he should know all the conditions and rules to follow and if he does not, then his attorney should advise him. She commented there are still noise issues and that she placed a call on May 15. She said the police would send someone out, but it was close to closing time. She added that for being located on Historic Route 66, people visiting our City, people coming home from vacation and driving through town are exposed to these patrons and she has not observed many police considering the drunks on the road. She said that the Commission should not Planning Commission Minutes -9- June 22, 2005 make a decision tonight,take their time, that 4 or 5 modifications are not enough, it is a start, but it is not complete and they need to review the Entertainment Permit. Rodney Trujillo, 9889 Estacia Court, Rancho Cucamonga, remarked that the security that has been placed directly in front of his property has made an impact but there are still negative impacts as well such as loud confrontations from the patrons of Margarita Beach(with the security guard)and seeds and cigarette butts left behind by the security guard. He asked if the guard could be placed across the street instead. Commissioner McPhail asked if there is still a problem with trash, seeds and cigarette butts in the last few months. Mr. Trujillo stated the seeds and butts remain, but the other trash is removed. Kim Wieson, 8010 Pasito Court, Rancho Cucamonga, stated she has been a resident for 27 years and a businesswoman for the last 15 years. She noted that it was a nice neighborhood, but now there are orange cones in the street and guards at night, but that the situation has been better recently. She asked why should they even have to have a security guard. She added that the Commissioners do not have one on their street. She said she gets home everyday at 5 p.m. and is around the house all weekend, but she could not recall anyone coming to her street to talk to her or her neighbors. Larry Libatore, 9870 Estacia Court, Rancho Cucamonga and has been a resident for22 years,stated their problems have not changed; security is present on their street every weekend. He noted that two weeks ago there was a loud argument between patrons and the security guard as to why they could not park on his street. He added that the previous Sunday morning there was a confrontation that was broken up by security and he called 911, but by the time the police arrived,the people were gone. He wondered why the business would risk one of his employees to confront these people. He said these people need constant supervision by the City and the Police Department. He added that he would like parking restrictions on his street as a suggestion. Sara Moussavi, 8032 Pasito Avenue, Rancho Cucamonga, stated she has been a resident for 23 years and that she supports the position of her neighbors. She said they are being truthful in what they have reported. She remarked that she is appalled at this business operation. She said she has a 16-year old and it is difficult enough to raise children these days without this kind of influence. Ed Sanchez, 9865 Estacia Court, Rancho Cucamonga, said that what was a restaurant with a bar became a nightclub bar with entertainment as the primary activity and that entertainment is the primary cause of all the problems. He said the Planning Staff has only offered 5 recommendations, none of which address the Entertainment Permit. He noted that if staff had visited the business after midnight they would have observed the loud activity at closing time. He commented that they are still experiencing noise problems at the Pines Mobile home park. He remarked that Mr. Davidson claims ignorance of some conditions, but that Mark Davidson sent a letter to Brad Buller in 1996 detailing the conditions of his permits and the letter stated he understood and would comply with those conditions. He stated that Mr. Davidson changed the nature of his business without authorization from Planning. He commented that Planning has the responsibility to review both the CUP and the EP and if both were not addressed, then it would not be a thorough review. He remarked that he believes some of the City departments (Police and Planning) are supporting Mr. Davidson and therefore they are not getting to the core issue, which is the Entertainment Permit. He said Planning give this a through investigation and review as well as the City Attorney to verify that all of these "shenanigans" of changing and altering his business are looked at and dealt with properly and that we are enforcing those permits. He said he hopes the Commission will return this to Planning for a thorough investigation. Vice Chairman McNiel allowed the applicant's attorney to offer a rebuttal. Planning Commission Minutes -10- June 22, 2005 James Reiss, 10535 Foothill Boulevard, Suite 410, Rancho Cucamonga, commented that although the residents believe the Police and Planning staff have an agenda to support Mr. Davidson, but there is no empirical evidence to support their belief. Mr. Reiss stated that the three main problems detailed in the staff report (noise, overflow parking and loitering) have been solved. He remarked that the criticism of Mr. Davidson by Mr. Sanchez would never come to rest until he is driven out of business. He reiterated that Mr. Davidson has not violated the law and he is in compliance. He said it is a moral issue dealing with things such as dress code and the flyers distributed and that he is in compliance with all the laws. He stated that no matter what his client does, it would not be enough. He commented that you could propose changes that could condition an owner out of business orwill you attempt to create balance. He noted that staff supports moderate changes. He said it appears to be a moral issue, but without violations/empirical evidence from the Police, Code Enforcement, ABC, and the Fire Department, then no one can say they should close down the business. He reported that he has attempted to accommodate the residents, Police, Code Enforcement, and the ABC and if they want more, they can ask. Vice Chairman McNiel closed the public hearing. He thanked everyone for their participation and commented that everyone took some hits but that he was determined the meeting would be conducted in an orderly manner with no shouting matches. He reminded everyone that this is an open meeting and nothing is done behind closed doors. Commissioner Stewart asked the Assistant City Attorney, Kevin Ennis, to define adult entertainment/nightclubs/bar- restaurant per the Municipal Code. She commented that she could not see why so many pointed out that they believe we are not addressing the Entertainment Permits. She noted that the staff report clearly addresses the fact that the Entertainment Permit is clearly tied to the Conditional Use Permit and both are being reviewed. She also asked Mr. Buller to explain how they should address the issue of the Entertainment Permit. Kevin Ennis,Assistant City Attorney addressed the question regarding whether this constitutes Adult Entertainment. He said Adult Entertainment business is categorized by the Development Code Section 17.04.090. He reported that there is a category noted as'Adult Cabaret'which is defined as, "A nightclub, bar, restaurant, or similar establishment during which a substantial portion of the total presentation time features live performances which are distinguished or characterized by an emphasis on 'Specified Sexual Activities' or by exposure of 'Specified Anatomical Areas' and/or feature films, motion pictures,video cassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of'Specified Sexual Activities' or 'Specified Anatomical Areas' for observation by patrons." He continued with the a definition of'Specified Anatomical Areas'as in part, "...the female breast below a point immediately- above the tops of the areola." He added that'Specified Sexual Activities'includes, "...the fondling or other erotic touching, actual or simulated, of human genitals, pubic region, buttocks, or female breast..." He noted that the question is whether this is an adult entertainment business. He said that if in fact these photographs submitted as exhibits are from this business,there are some that do qualify into these two categories. He suggested that if it is determined this is the predominant type of activity of the facility/business and are they creating a venue/situation where they allow people to present themselves in this manner. He said that there is some evidence that goes in that direction and that it is engaging in an adult entertainment business that is not permitted in this zone. He stated that staff can verify the facts further and code enforcement, and if this is exemplary of the d that there are two distinct categories in activities and if so, there is a violation of the code. He noted 9 the code and that there is a difference of category for a Bar and a second category for a Restaurant and Bar, but not a separate category for a nightclub. Mr. Buller noted that in the Development Code within the Foothill Boulevard Section of the code is I Community Commercial, Subarea 3 and in that matrix describes the various land uses allowed in that subarea. He noted that a cocktail lounge/bar lounge/tavern including related entertainment use is a conditionally permitted use in Subarea 3. He added that the category of restaurants/sit-down, there are 4 categories including a restaurant with entertainment and/or with cocktail lounge and bar Planning Commission Minutes -11- June 22, 2005 or incidental serving of beer and wine and cocktail lounge. He said these are all subject to Conditional Use Permits (CUP) on this piece of property. He commented that the Conditional Use Permit is the parent use and that you cannot have an Entertainment Permit(EP)without a CUP. He noted that the EP is currently on hold and is up for review and will not be acted upon pending the Commission's action on the parent CUP. He said it has everything to do with the use and the selling of alcohol and the entertainment. He said the new CUP resolution addresses both permits. Mr. Ennis added that the business operation is operating pursuant to previous discretionary actions. He said the original application was for a restaurant and that was followed by a permit for alcohol. He reported that it then was modified to serve alcohol incidental to the operation of the restaurant use. He said that the Commission has the authority to require the facility to operate principally as a restaurant. He said if you are concerned about how this facility is operating as something else, the Commission could look at standards, conditions etc.to require it to ensure it operates principally as a restaurant. Mr. Buller replied that one of the residents offered an alternative and that is to limit the hours of operation,which would address the late hour issues. He said they are all in their purview to consider tonight. Commissioner McPhail commented that the original intent of the Conditional Use Permit was for a restaurant with the incidental serving of alcohol with food. She noted that at the last public hearing for Margarita Beach, Mr. Davidson admitted that they stopped serving food at 10:00 p.m. and that it became a different venue after that hour. She said they caught themselves on that and made the changes. She said she believes they are not upholding the original intent of the CUP approved in 1991 and that they are in violation of other issues; the business has harmed the neighbors; a security guard is there; cones are set up, and the neighbors have put up with far more than what good neighbors would put up with. She commented that if this were a new business,we would not be allowing cones, blocked driveways, security guards and noise. She said we would not want to have that and that we would not believe that is an appropriate land use. She added that she believes they have violated their CUP. Commissioner Fletcher acknowledged the dilemma of the situation noting that he is sympathetic to the neighbors concerns that seem to have gone on for years. In response to the comments that indicated staff was not doing anything about the situation, he explained that the Commission must follow the process in the investigation and review of the business. He said that this business is a conditionally permitted operation and can be reviewed at anytime and that the public has that power in their hands. He said it is disturbing that this went on for 9 years and we had not heard anything about it. He explained that the first contact was to the City Council, not the Planning Commission, and when the issue was presented to the Planning Commission, the Commission was required to first have a public hearing to determine if there was enough evidence supporting the complaints as per the Development Code regulations. He noted that this(tonight) is the first time the Commission as a body could say direct things about Mr. Davidson's business operation and that evidenced by the residents' comments, the business owner has made attempts and has made significant improvements in the last 3 months. Commissioner Fletcher said he reviewed the website and believed from the start that the website would probably cause him more problems than anything said here. He found the website disturbing as well as the promotional materials. He said that staff would have to determine if there are Code violations and that this type of a business that encourages and promotes young people to come and get drunk will cause problems in a neighborhood. He remarked that if the promotions continue, the problems associated with the business would not go away. He commented that the business operation has gotten out of hand, a little exaggerated and it is his(Mr. Davidson's) responsibility to control it and operate it within the confines of the permit. He noted that the residents mentioned their list of recommendations. He pointed out that some of those recommendations are incorporated into staffs recommendations and some items could not be used because the City has no legal control, such as offering a .25 (cent) beer. He commented that Mr. Davidson's attorney said the business has no empirical evidence of violations, but Commissioner Planning Commission Minutes -12- June 22, 2005 Fletcher remarked that the photographs are evidence and the website pictures were shocking such as a banner on the wall that says, "Eat and drink and get fat and drunk." He said the promotion encourages behavior that will be problematic for his business. He said he agrees with staffs recommendations in the report. He said he is curious about the continuing problem with people hanging out at the rear of the building considering it is an existing condition of the use permit that this not be allowed. He said he would support the review periods outlined by staff with the exception of the final progress report. He commented that there should be two 6-month reviews. He said the applicant will be on a tight leash and his feet are being held to the fire but they have made improvements and that he recommends the Commission adopt the recommendations as presented by staff with a modification to the frequency of review and approve their permits subject to those changes and subject to the future comments of the neighbors. He noted that if there are any further disturbances, the residents should let the Commission know because the CUP can be reviewed at any time at their suggestion. Commissioner Stewart commented that this business went from 400 police calls in 2002 to 2 calls. She remarked that this is significant and it says we are going in the right direction with this business. She added that some of the calls were self-initiated and the police are performing well. She noted that this is the first time this business has been reviewed by the Planning Commission, and although the residents have experienced problems for 9 years, it was only brought to us in February from the City Council. She said that at that time we asked you(the residents)to work with staff and Margarita Beach towards a resolution. She noted that most of the residents have testified tonight of some improvement in the last 3 months. She commented in regard to long-term management of this business operation; we cannot afford for the police teams to be solely dedicated to this business operation. She concurred with Commissioner Fletcher in that if this resolution went forward, she would recommend a shorter, more frequent review period for this business operation such as a 3- month review followed by another 3-month review followed by a 6-month review and again followed by another 6-month review to keep their feet to the fire and that they would rely on communications from the neighborhood if there are continuing problems. Commissioner Stewart then said that she believes they are bordering on adult entertainment and that we may be operating something in violation of our Code and the zoning and we are moving outside the original parameters of the permits in that this is no longer a restaurant. She noted that there should be more regulations in the Resolution. She recommended they not take action tonight and that the review of this business go back to staff to evaluate the zoning and the adult entertainment issue. She added that it is not her goal to shut down the business but this is the first step was to address the regulatory issues. She stated that the number of calls has been reduced and things are generally better in the neighborhood. She said the placement of cones and security is not a good solution but there are other issues that can be resolved. She recommended the review of the operation be referred back to staff to work with the group and with Margarita Beach to ad additional regulations but that she is more concerned with the possible zone violations. Vice Chairman McNiel referred to the information included in the agenda packet, which gives a chronology of the business. He noted that in 1988 we had a nice restaurant; in 1991 they added a bar to the restaurant followed by the adding of entertainment. He explained that the original Entertainment Permit was for a small band, disc jockey and a couple of comedians. He noted that this is not what we have today, that the business operation has changed dramatically and goes beyond the limitations of the Conditional Use Permit. He contended that based upon what we have seen today,the Commission has the right to pull their permit and close their doors. He noted that we have seen improvements and the possibility exists that we could change this and go back to the original restaurant use. He pointed out that if the Commission takes action tonight, to close the public hearing,then they miss the opportunity to give it back to staff. He said the requirements need to be strengthened, that this operation is not what we agreed to in 1991 and initially he thought he would pull their CUP, but he decided sending it back to staff was the best option. Commissioner Fletcher asked if they could adopt the additional conditions and continue the hearing so that staff can further review the business operation. Planning Commission Minutes -13- June 22, 2005 Vice Chairman McNiel stated he would prefer to continue the item and stiffen their conditions. Commissioner Fletcher said it may not need more stiffening and would depend upon how Mr. Davidson operates it in the future. He said that if Mr. Davidson continues operating it like he has, then there is a good chance he will be out of business when we review it in the future. Commissioner McPhail explained she does not have a background in the restaurant business and therefore asked staff to help the Commission formulate conditions that transforms the business back to a restaurant use that serves ancillary adult beverages then what it has become. She said she did not feel qualified to come up with those conditions this evening. Commissioner Stewart said she is not in favor with what Commissioner Fletcher is suggesting. She noted that staff needs to have further discussions with Margarita Beach and they may elect to do other things based upon what this Commission has said tonight and they may hot. She said it might not be appropriate if there is a potential zone violation then the Commission should not take action, Vice Chairman McNiel interjected and said they are "over the line." Commissioner Stewart continued and suggested they get staffs help, that staff can work with the business and let them take the time needed, and that additional conditions will not be sufficient right now because they have other things to deal with. Brad Buller commented that we did not know if the direction of the Commission would be more conservative and with the evidence presented by Ms. Sanchez and the attorneys comments alluding to this being evidence of adult entertainment, it would take a lot of staff hours to evaluate that, its degree and frequency and it is likely that if we visited the facility now, we would not see that happening. He remarked that the photographs are evidence that is was occurring and has occurred on site and that is assuming they were taken on site in that facility. Commissioner McPhail asked for concurrence and direction we would like them to take. She said she would like to see it go towards a restaurant. She said they have a couple of options, either for staff to work with the owner to head in that direction or for staff to come up with a set of conditions that would predicate that is what absolutely has to happen. Vice Chairman McNiel said he supports the business operation going back to a restaurant use. Mr. Buller commented that if the Commission is directing we continue the hearing, it is likely that staff would need two weeks to come up with more neighborly/conservative conditions such as the recommendation to revert back to the 50 percent parking requirement, revert back to the 8:00 p.m. requirement, add security guards, minimize the hours of operation that would be more conducive to a neighborhood restaurant. He added that the Commission wants staff to work with the owner, then 30 days would work; two weeks may not be enough. He added that the attomey says there may be enough evidence to say that this business is operating as an adult entertainment business. He said the photos presented are evidence that these activities were and are occurring. Vice Chairman McNiel asked that if they made a determination in two weeks,would that be enough time for staff to pull together everything they need for a report and to have communication with Mr. Davidson. Commissioner Stewart said crucial dialogue needs to happen and we owe Mr. Davidson as a businessman the opportunity to dialogue with staff and if the neighbors are not insisting the business be shut down as they have claimed, then we should give Mr. Davidson that opportunity. Commissioner McPhail said she would like to see less of a need for security rather than beefing up the security. Planning Commission Minutes -14- June 22, 2005 Mr. Buller noted that the presence of the security personnel did not feel right to the residents. He indicated that the general consensus of the Commission is to have staff come back with recommendations and conditions. He warned Mr. Davidson that he (Mr. Buller) would come to a point that he would make a recommendation with or without his support, that he would engage in conversation but there will come a time with a deadline and he would present to him some alternatives or his best recommendation. Commissioner McPhail moved to continue to the next Planning Commission meeting. Commissioner Stewart seconded the motion. Kevin Ennis interjected and clarified their intention to continue the item and keep the public hearing closed or to reopen the hearing to allow additional comment. Vice Chairman McNiel said he is a firm believer in allowing people their say and he would favor reopen the public hearing and it would be an open meeting. Kevin Ennis said they could re-open and continue the public hearing, and they could request that the testimony heard at that meeting be limited to new information and any new conditions that may be imposed on the business operation. Vice Chairman McNiel re-opened the public hearing. Motion: Moved by McPhail, seconded by Stewart, to continue the public hearing for Conditional Use Permit 88-45 and Entertainment Permit 91-03 — Margarita Beach until the July 13, 2005 Planning Commission meeting. The business operation will be sent back to staff for this 3-week period for further review, possible modification of the conditions, and to work with the business owner. Motion carried by the following vote: AYES: FLETCHER, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: MACIAS - carried Vice Chairman commented that he could bet that no one in the room is happy, but they are doing what should be done under the law and what should be done for all parties concerned. He said they will get it resolved and even then some people won't be happy and when that occurs, someone will appeal it to the City Council because that is part of the process and the law as well. PUBLIC COMMENTS No additional comments were made. COMMISSION BUSINESS The Commission had no additional business. Planning Commission Minutes -15- June 22, 2005 ADJOURNMENT Motion: Moved by Stewart, seconded by McPhail, carried 4-0-1 (Macias absent),to adjourn. The Planning Commission adjourned at 9:42 p.m.to a workshop. The workshop adjourned at 10:58 p.m. and those minutes appear separately. Respectfully submitted, i e' BrP ler M% Secretary Approved: July 13, 2005 1 Planning Commission Minutes -16- June 22, 2005