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CA:f:\atty\muni\strpts\mhs\drivup5
city Council Meeting 2-14-95
Santa Monica,
ca~~~o!n\JJ95
TO: Mayor and city council
FROM: City Attorney
SUBJECT: ORDINANCE REGULATING OPERATING HOURS OF FAST FOOD DRIVE
UP WINDOWS
At lts meetlng on December 13, 1994, the city Council adopted
an lnterim ordinance providing that after June 30, 1995 it shall be
unlawful for any drive-in, drive-through, fast food or take-out
restaurant located adjacent to or separated by an alley from any
resldentially-zoned property to operate a drive-up window between
the hours of 10:00 p.m. and 7:00 a.m. (hereinafter "Interlm
ordinance") .
The council deleted from the proposed Interim
Ordinance an exemption for existing establishments with conditional
use permits or development review permits (hereinafter "use
permits"), and asked for further information concerning whether the
hours restriction may lawfully be applied to ~uch establishments.
The Interim ordinance is only effective for forty-five days, unless
extended by Council. The following Memorandum addresses the
legality of the Interim Ordinance.
BACKGROUND
The Interim Ordinance was adopted by Council in response to
testimony from "residents living adjacent to and in the vicinity of
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fast food restaurants with drive-up windows whose quiet enjoyment
and nighttime rest has been repeatedly disrupted by the noise
assoc1ated w1th the late-night operation of the dr1ve-up windows. II
(Findings and Purpose section of Interim Ordinance). According to
the November 22, 1994 Planning Department staff report to Council,
there are twelve fast food restaurants located adjacent to
residentially
zoned
properties
(hereinafter
"exlsting
establishments"). Five of these establishments have no use permit,
but were lawful when commenced and are thus legal nonconforming
uses. The other seven establishments have current use permits.
The Zoning Ordinance already limits the operating hours of
fast food establishments in some instances, but only applies to
uses established after 1988 or expansions of existing uses.
Section 9.04.14.090 of the zoning Ordinance prohibits operat1on of
any new
fast food establishment between 10 p.m. and 7 a.m.
Addit1onally, by its terms, section 9.04.14.090 applies to
existing establishments which expand gross floor area by more than
10% or increase the number of seats by more than 25%. The Interim
Ordinance adopted by Council on December 13, 1994 15 intended to
apply this. hours restriction to the drive-up window operations of
existing establishments, whether or not there is any expansion of
use.
As discussed below, the operating hours of an existing
establ1shment with a use permit may be modified through enforcement
proceedings on a case by case basis, if the business has been
operating in violation of the conditions of the permit, or as a
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public nuisance.
This process would effectively address the same
concerns regarding neighborhood impacts as those motivating the
Interim ordinance. It is probably permissible to apply the Interim
ordinance to businesses which operate as legal nonconforming uses;
however, as an alternative, these establishments may also be
subject to nuisance abatement actions.
ANALYSIS
The Interim Ordinance must be analyzed separately for existing
establishments with use permits, and those which are legal
nonconforming uses.
A. Establishments with Use Permits.
The interim ordinance would apply to seven eX1sting
establishments with use permits.
However, three of the seven use
permits already prohibit drive up operations between 10 p.m. and 7
a.m. consistent with the Interim Ordinance.
The other four use
permits vary in allowed hours of operation of the drive-up window;
one authorizes operation until midnight, one allows operation until
midnight only on the weekend, and one authorizes operat10n until 11
p.m. on the weekend.
According to Planning Department staff, the public testimony
at the September 20, 1994 Council hearing concerned four particUlar
fast food establishments, two of which have use permits.l The
testimony principally concerned noise from speakers, cars, patrons,
1 The McDonald's located at 2712 Santa Monica Boulevard and
the McDonald's located at 2902 Pico.
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and delivery vehicles; trash; and parking.
Each of the seven
permlts has specific conditions regarding noise impacts on
neighbors.
Five of the seven permits have a condition which requires that
lithe operation shall at all times be conducted in a manner not
detrimental to surrounding properties or residents by reason of
lights, noise, including speaker noise, activities, parking or
other actions. II
The other two permi ts have a more general
condition that lithe restaurant and parking area be operated in such
a way as to not be detrimental to the public health, safety, or
welfare. II
Some of the permits also have specific conditions
regarding allowable decibel levels or other details pertaining to
the outdoor sound system.2
It would appear that the noise problems cited by the neighbors
may constitute violations of one or more of these conditions.
Should the facts warrant, pursuant to existing Zoning Ordinance
provisionsl the Planning Commission may hold a revocation hearing
to determine whether the operations of a particular establishment
are in compliance with the permit conditions. As a result of such
hearing, the use permit could be revoked.
As a less drastic remedy, after an enforcement hearing, the
Planning Commission could modify the conditions of the permit by,
for example I reducing allowable operating hours of the drive-up
wlndow to be consistent with the hours restriction of the Interim
2 Both McDonald1s permits have specific provisions
regarding the outdoor sound system.
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Ordinance. Although the zonlng Ordinance does not specify that
the Commission may modify the conditions of an existing permit, the
lesser authority to modify may be implied from the broader power to
revoke the permit. In fact, there is some authority that the city
may in fact be obligated to restrict the businesses no more than
necessary to alleviate the particular operational problem by, for
example, further limiting operating hours rather than revoking the
permit. See O'Hagen v. Board of Zoninq Adiustment, 19 Cal. App. 3d
151, 165, 96 Cal. Rptr. 484, 493 (1971).
Enforcement of the conditions of the existing permits would be
a safer course of action than applying the Interim Ordinance to
eX1st1ng establishments with use permits which specifically
author1ze extended hours of operation. Ordinarily zoning
ordinances are applicable to the future use of property and are not
made retroactive. Jones v. City of Los Anqeles, 211 Cal. 304, 319,
295 P. 14, 21 (1930); Trans-Oceanic oil Corporation v. city of
Santa Barbara, 85 Cal. App. 2d 776, 194 P. 2d 148, 157 (1948). The
risk of enacting a retroactive zoning ordinance is that, under some
circumstances, the ordinance may be found to unlawfully interfere
with vested property rights. Hansen Brothers Enterprises v. Board
of Supervisors, 30 Cal. App. 4th 23, 26, 35 Cal. Rptr. 2d 358, 361
(1994) .
It 1S clear that once a use permit has been properly issued,
the power of a municipality to revoke the permit is limited. Goat
H1ll Tavern v. City of Costa Mesa, 6 Cal. App. 4th 1519, 1530, 8
Cal. Rptr. 2d 385, 391 (1992); O'Haqen v. Board of Zoninq
5
Adiustment, 19 Cal. App. 3d 151,
158, 96 Cal. Rptr. 484, 488
(1971); Trans-Oceanic oil Corp., supra, 85 Cal. App. 2d at 785.
Where a permit has been properly obtained and in reliance thereon
the permittee has incurred material expense, he acquires a vested
property right which may only be revoked for failure to comply with
reasonable terms of the permit, or upon "compelling public
necessity" such as operation of the use as a public nuisance. Id;
Sunset Amusement Co. v. Board of Supervisors, 7 Cal. 3d 64, 80, 496
P. 2d. 840, 856, 101 Cal. Rptr. 768, 778 (1972).
Al though no California cases have directly addressed the
point, there is a substantial risk that a Court would apply the
same principles applicable to revocation of a permit to unilateral
modification. If so, the Interim Ordinance could not lawfully be
applied to establishments with existing use permits the conditions
of WhlCh authorized extended drive-up hours.
B. LEGAL NONCONFORMING USES
The Interim Ordinance also applies to five establishments
which operate as legal nonconforming uses, including two of the
businesses regarding which testimony was heard at the September 20,
1994 Council meeting. 3
The legal non-conforming businesses have
no present restrictions regarding hours of operation. According to
Planning Department staff, four of the five non-conforming
3 The Jack-In-The-Box located at 2025 Lincoln Boulevard and
the Jack-In-The-Box located at 2423 wilshire Boulevard.
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businesses do operate the drive-up window after 10 p.m.
Although it is doubtful that a municipality could force a
legal nonconforming use to immediately cease operations unless it
was operating as a nuisance,
(see, e. g., Jones v. city of Los
Anqeles, supra, 211 Cal. at 308-309; O'Haqen v. Board of Zoninq
Adiustment, supra, 19 Cal. App. 3d at 159), it would appear to be
permissible to regulate a nonconforming use in some lesser manner.4
The Interim Ordinance may thus be lawfully applied to the five
establishments which operate as legal nonconforming uses.
A nonconforming business might contend that the effect of the
interim ordinance would be to cause it to cease operations
entirely.5
It seems unlikely that a convincing case for this
assertion could be made. However, in such a case, a court could
conceivably hold that the Ordinance constitutes an unlawful
"taking" of property without due process.
Alternatively, if the Interim Ordinance is not extended, the
4 There is some authority for the proposition that all
aspects of the use at the time it becomes legal nonconformlng are
"frozen in place" and vested. (See Hansen Brothers Enterprises,
supra, 35 Cal. Rptr. 2d at 362 (dicta)). However, no cases have
squarely addressed this issue, and such an interpretatlon would
constitute a significant new intrusion on the police power of
municipalities to legislate to promote public health, safety, and
welfare.
5 Accordlng to Planning Department Staff, the owner of the
Jack-In-The-Box located at 2025 Lincoln Boulevard testified at
the November 29, 1994 Council meeting that "more than 30% of
business would be lost" from compliance with the Interim
Ordinance, and that he tried a one week experiment of closing the
drlve-up window between 10 p.m. and 7 a.m. and estimates that he
lost 95% of his customers because the window was closed. He did
not state whether the business would close.
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City may cause a nonconforming business to limit its hours or cease
operating entirely, if it constitutes a "public nuisance." Such a
case must be factually established in a hearing regarding which the
owner has received proper notice and during which other due process
protections are afforded. Leppo v. City of Petaluma, 20 Cal. App.
3d 711, 717, 97 Cal. Rptr. 840, 843 (1971); ~ Goat Hill Tavern,
supra, 6 Cal. App. 4th at 1530. In the instant situation, whether
any of the nonconforming businesses affected by the Interim
Ordinance constitutes a public nuisance could be addressed on an
individual basis through Nuisance Abatement Board proceedings, or
through a court action, should the facts warrant. This may be a
preferable approach since it addresses problems arising from
specific locations, rather than constituting an across the board
prohibition.
RECOMMENDATION
It is respectfully recommended that the Interim Ordinance not
be extended, and planning staff be directed to investigate and take
enforcement action as appropriate. Alternatively, if the Council
wlshes to extend the Interim Ordinance, it is recommended existing
businesses with use permits be exempted, and the Ordinance attached
as Exhibit A be introduced for first reading.
PREPARED BY:
Marsha Jones Moutrie, city Attorney
Mary H. Strobel, Deputy City Attorney
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CA:f:\atty\muni\laws\mhs\drivup2
city Council Meeting 2-14-95
Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ESTABLISHING HOURS OF OPERATION
FOR DRIVE-UP WINDOWS OF DRIVE-IN, DRIVE-THROUGH AND
FAST FOOD RESTAURANTS LOCATED ADJACENT TO
RESIDENTIALLY ZONED PROPERTIES ON AN INTERIM BASIS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Findinqs and Purpose. The city Council finds and
declares:
(a) At its September 20, 1994 meeting,
the City Council heard testimony from
residents living adjacent to and in the
vicinity of fast food restaurants with drive-
up windows whose quiet enjoyment and nighttime
rest has been repeatedly disrupted by the
noise associated with the late-night operat1on
of the drive-up w1ndows.
(b) Although many fast food restaurants
with drive-up windows have Development Review
or Conditional Use Permits which limit the
hours of operation of the drive-up windows,
some fast food restaurants with drive-up
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windows do not have limits on the hours of
operation of the drive-up windows.
(c) Pending the implementation of
permanent changes to the Zoning Ordinance to
ensure the public health, safety, and welfare
of impacted residents, it is necessary to
limit on an 1nterim basis the hours of
operation of drive-up windows in fast food
restaurants located adjacent to or separated
by an alley from any residentially zoned
property which do not have in place
limitations on the hours of operation of
drive-up windows.
(d) As set forth above, there exists a
current and immedia te threat to the publ ic
health, safety, or welfare, from the continued
operation of drive-up windows adjacent to
residentially zoned parcels, and the
maintenance of any such operations in existing
businesses inconsistent with the standards of
this interim ordinance would result in a
threat to public health, safety, or welfare.
The purpose of adopting this interim
ordinance, the standards of which will not
take effect until June 3D, 1995, is to give
advance notice to property owners and business
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owners who will be affected by the hours of
operation restriction which will adopted as a
modification of the Zoning Ordinance.
SECTION 2. Except as provided in Section 3 of this
Ordinance, after June 30, 1995 it shall be unlawful for any drive-
ln, drive-through, fast food or take-out restaurant located
adjacent to or separated by an alley from any residentially zoned
property to operate a drive-up window between the hours of 10:00
p.m. and 7:00 a.m.
SECTION 3. The provisions of this Ordinance shall not apply
to any drive-in, drive-through, fast food or take-out restaurant
operating on the effective date of this Ordinance which has a valid
conditional use permit or development review permit.
SECTION 4. Any provision of the Santa Monica Municipal Code
or appendices thereto, inconsistent with the provisions of this
Ordlnance, to the extent of such lnconsistencies and no further,
are hereby repealed or modified to that extent necessary to effect
the provisions of this Ordinance.
SECTION 5. This Ordinance shall be of no further force or
effect twelve months from its adoption, unless extended in the
manner required by law.
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SECTION 6. If any sectlon, subsection, sentence, clause, or
phrase of this Ordinance is for any reason held to be invalid or
unconstitutional by a decision of any court of any competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance.
The City council hereby
declares that it would have passed this Ordinance, and each and
every section, subsection, sentence, clause, or phrase not declared
invalid or unconstitutional without regard to whether any portion
of the Ordinance would be subsequently declared invalid or
unconstitutional.
SECTION 7. This Ordinance is adopted pursuant to the
provisions of Section 9.04.20.16.060 of the Santa Monica Municipal
Code, and the need for its adoptlon is set forth in the Findings
and Purpose Section above.
SECTION 8.
The Mayor shall sign and the City Clerk shall
attest to the passage of this ordinance.
The City Clerk shall
cause the same to be published once in the official newspaper
wlthin 15 days after its adoption.
This Ordinance shall be
effective 30 days from its adoption.
APPROVED AS TO FORM:
~i-Lie
MARSHA J S MOUTRIE
City Attorney
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