SR-12-A (15)
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CjED:PB:DKW:WW:WW
cccup43
Council Mtg: November 14, 1989
Santa Monica, California
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TO: Mayor and city Council
FROM: city Staff
SUBJECT: Appeal of planning commission denial of Conditional Use
Permit 89-043 and Variance 89-035 to permit an eight
seat fast food Subway Sandwich Shop in an existing 1037
square foot commercial space located in a mixed retail
commercial center in the C4 (Highway Commercial)
District at 1865 Lincoln Boulevard. A variance is
required to permit use of 27 existing parking spaces
in-lieu of 38 parking spaces required for the existing
commercial uses and the fast food use. A total of
fourteen (14) parking spaces are required for the fast
food use.
INTRODUCTION
This report recommends that the City Council deny the appeal and
uphold the Planning Commission denial of Conditional Use Permit
89-043 and Variance 89-035 for the operation of a subway Sandwich
fast food restaurant located at 1865 Lincoln Boulevard in the C4
(Highway Commercial) District.
On September 6, 1989, the
Planning commission denied the project.
(See Exhibit ItAIt).
On
September 13, 1989, Attorney Kristin Hubbard of the Law Firm
Lawrence and Harding, representing Andrew Oldfield, the property
owner appealed the Planning Commission action.
BACKGROUND
The applicant proposes to operate a Subway Sandwich fast food and
take out use in a 1037 square foot area of an existing 8439
square foot mixed commercial center.
A donut shop was
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previously operated in the space. The fast food sandwichshop
will have a peak employment of four peak hour employees during
the hours of 10:00 a.m. to 2:00 a.m.. A total of eight customer
seats are located in the sandwich shop. There will be no sale of
alcoholic beverages in conjunction with the use. Under SMMC
Section 9024.4, a conditional use permit is required to permit a
take-out or fast food use in the C4 District.
A variance is required to permit the Use of 3 existing on-site
parking spaces in-lieu of 14 parking spaces needed for the
development of the fast food use. There are 27 spaces on the
site. Under SMMC section 9044.4, 24 parking spaces (calculated
at one parking space per 300 square feet) are required for the
existing retail and fast food tenants, thereby leaving three
unused parking spaces. Fourteen (14) parking spaces (calculated
at one space per 75 square feet) are required for the fast food
use. A total of 38 parking spaces would be required for the
existing and proposed uses.
On September 6, 1989 the Planning commission on a 2-2 vote,
technically denied the project. Staff had recommended findings
that the parking demand would exceed the supply of parking on
site and that a fast food restaurant use would typically operate
with a greater vehicle turnover rate than a full-scale sit down
restaurant or other commercial use.
On september 13, 1989, Attorney Kristin Hubbard of the Law Firm
Lawrence and Harding, representing Andrew Oldfield, the project
applicant, appealed the Planning commission action indicating
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that parking required for the sandwich shop is identical to
parking for the previous donut shop and should therefore be
grand fathered under the previous zoning code parking standard, and
that the sandwich shop will generate less parking demand than the
previous donut shop.
ANALYSIS
Under SMMC section 9129 (B) of the fonner zoning Code, a fast
food/take out restaurant was classified as a drive-in restaurant
that required one (1) space per one hundred (100) sq. ft., of
adjusted floor area. Based upon this parking ratio, a total of
ten (10) parking spaces would be required for use of the 1037
square foot space as a fast food/take out Subway Sandwich
restaurant.
Under the former zoning code, a donut shop was classified as a
specialty retail use, (similar to a bakery) that required one (1)
space per three hundred (300) sq. ft., of adjusted floor area.
Based upon this parking ratio, a total of four (4) parking spaces
would be required for use of the 1037 square foot space as a
donut shop.
Parking required for a fast food/take out restaurant use (10
spaces) and donut shop (4 spaces) were clearly not identical
under the former zoning code.
Under SMMC Section 9044.3(e) of the current zoning code, for any
new use of an existing building or structure, parking spaces in
the number specified in Section 9044.4 shall be provided.
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section 9044.4 requires one (1) parking space per seventy-five
(75) square feet of floor area for the fast food/take out
restaurant use. Based upon this requirement, a total of fourteen
parking spaces are required to convert the donut shop to a fast
food/take out restaurant use. Since the parking ratio for a fast
food use continues to be greater under the new code (1 space per
75 sq.ft.) than for a donut shop (1 space per 300 sq.ft.), the
fast food use cannot be considered "grandfathered". provision of
parking spaces less than the code required would require issuance
of a parking variance.
other differences also exist between the donut shop use and the
proposed fast food/take out use. The donut shop contained no
customer seating and was intended to operate primarily during
early morning hours--when use of the center would not occur. The
fast food/take out use primarily operates during afternoon and
evening hours and will have operating hours that are similar to
other take out/fast food and retail food uses located in the
center. Since eight fast food restaurant seats and four peak
hour employees are proposed with only three parking spaces
designated for proj ect use, the customer and employee parking
demand will often exceed the supply of site parking. Traffic
generated by the fast food use will be further intensified by
inclusion of the take out service component, other fast food
(Domino'S Pizza) and food related uses (V Food Market) existing
on the site. other current tenants (Domino'S, V Food Market)
have similar operating hours and will account for similar vehicle
turnover rates. The lack of eleven parking spaces in a center
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that contains other fast food and food related uses could result
in customer and employee parking intrusions into surrounding
residential neighborhoods.
The appellant also contends that the former zoning code did not
contain a definition of a "fast foodll use and therefore a clear
demarcation between the fast food and donut shop uses does not
exist. Under SMMC Section 9117(A) (5) of the former zoning code,
a fast food restaurant is defined as "one in which the typical
customers purchase and consume their food on the premises within
thirty minutes." A take out restaurant is defined as none in
which customers consume their food purchased off of the
premises. II Traditionally, a bona-fide restaurant has been viewed
as one in which a variety of hot and cold food items are prepared
in a kitchen area located on the premises and served as customer
meals during various hours of the day. A donut shop does not
normally prepare and serve on the premises a variety of hot and
cold items as restaurant meals. A donut shop is not the
equivalent of a fast food/ take out restaurant.
The previous donut shop was not designated as a fast food or take
out restaurant and required Planning commission approval only
based upon its hours of operation. Under Ordinance 1321,
Planning Commission action was required for any use that
constituted a 24-hour use. The donut shop contained operating
hours of 4:00 a.m. to 1:00 a.m., ( which staff determined was
tantamount to a twenty-four operation) and therefore required
Planning Commission approval. Separate Planning commission
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approvals were required for fast food and take out restaurant
uses under 1321.
Under the current code.. the fast food/take out restaurant use
required Planning Commission approval to permit the specific
"fast food" and "take out" uses. Restaurant hours of operation
were not the focus of the request.
During the planning commission hearing, the applicant submitted a
signed petition from residents of the pico Neighborhood Area that
expressed support for the proj ect. However, the applicant did
not submit information or other studies to indicate this national
sandwich shop franchise will generate substantially less traffic
than what the zoning code requires. While neighborhood support
of a proj ect is relevant, it should not be the sole basis for
granting the parking variance. Approval of a variance based
exclusively on the written support of some neighborhood residents
is not consistent with the necessary findings that need to be
made in order to grant a variance. In the present case, no
attempts have been made to address the lack of parking or to
consider the future impact of a more intense fast food use
occupying the 1037 square foot space. Once, the conditional use
permit and variance are approved, they could be transferred to a
future fast food/take out restaurant tenant without requiring
further City approvals.
since operation of the fast food/take out use depends upon
variance approval, the staff maintains the conditional use permit
should also be denied.
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BUDGET/FINANCIAL IMPACT
The recommendation presented in this report does not have any
budget or fiscal impact.
RECOMMENDATION
It is respectfully recommended that the council deny the appeal
and uphold the Planning Commission action on the project subject
on the following findings:
FINDINGS
CONDITIONAL USE PERMIT FINDINGS
1. The proposed use is one conditionally permitted within the
subject district but does not comply with all of the ap-
plicable provisions of the llCity of Santa Monica Compre-
hensive Land Use and zoning Ordinance", in that the mini-
mum code parking requirement for a fast food/take out res-
taurant cannot be met and the applicant has submitted no
compelling evidence justifying a reduction from the normal
parking requirement.
2. The proposed use would impair the integrity and character
of the district in which it is to be established or lo-
cated, in that parking and traffic intrusions will impact
the surrounding residential neighborhood and customers and
employees will be required to park on side streets or on
adjacent commercial parcels.
3. The sUbject parcel is not physically suitable for the type
of land use being proposed, in that the site contains
several existing fast food and take out food uses with
similar operating hours and a similar demand for on site
parking. The parking demand of the combined fast food and
take out uses and other on-site commercial uses will ex-
ceed available on-site parking.
4. The proposed use is in compatible with the land uses pres-
ently on the subject parcel but will adversely impact use
of other onsi te uses by creating a greater demand for
customer and employee parking spaces. Circulation and
parking conflicts will occur. The character of the sur-
rounding neighborhood will be impacted.
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5. The proposed use would not be compatible with existing and
permissible land uses within the district and the general
area in which the proposed use is to be located, in that
traffic and parking intrusions would impact the surround-
ing neighborhood and may result in increased vehicle and
pedestrian impacts.
6. The proposed use is inconsistent with the goals, obj ac-
tives, and policies of the General Plan, in that the
General Plan encourages development of adequate parking to
meet customer and employee parking demands. The develop-
ment of the fast food/take out use with an inadequate
amount of parking will result in adverse traffic and park-
ing impacts.
VARIANCE FINDINGS
1. There are not special circumstances or exceptional charac-
teristics applicable to the property involved, including
size, shape, topography, location, or surroundings, or to
the intended use or development of the property that do
not apply to other properties in the vicinity under an
identical zoning classification, in that the size of the
parcel, parcel shape and flat surface topography do not
restrict the development of parking.
2. The granting of such variance will be detrimental or in-
jurious to the property or improvements in the general
vicinity and district in which the property is located, in
that the shortage of on-site parking will require em-
ployees and customers to circulate and vehicle park in
adjacent commercial and residential districts.
3. The strict application of the provisions of this Chapter
would not result in practical difficulties or unnecessary
hardships, not including economic difficulties or economic
hardships, in that the commercial space can be used for an
approved commercial activity that requires a lesser park-
ing amount or the developer can provide additional parking
for the fast food and take out use.
4. The granting of a variance will be contrary to or in con-
flict with the general purposes and intent of this Chap-
ter, or to the goals, obj ectives, and policies of the
General Plan, in that the General Plan and Zoning Code
establish minimum parking and circulation objectives that
are intended to reduce parking and traffic intrusions.
5. The variance would impair the integrity and character of
the district in which it is to be located, in that it will
result in spillover traffic and parking intrusions.
6. The subject site is not physically suitable for the pro-
posed variance, in that there is nothing unique about the
take out or fast food uses proposed and the parcel shape,
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size and location do not restrict restaurant development
or other approved commercial uses.
7. The strict application of the provisions of Chapter 10 of
the City of Santa Monica Comprehensive Land Use and Zoning
Ordinance would not result in unreasonable deprivation of
the use or enj oyment of the property, in that the fast
food/take out restaurant can be developed in a smaller
leasing space on the site, so that parking can be reason-
ably accommodated. other permitted commercial uses may
also be developed instead of the fast food/take out res-
taurant use.
Prepared by: Paul Berlant, Director of Planning
D. Kenyon Webster, Principal Planner
Wanda Williams, Associate Planner
Attachments: Exhibit A- Planning Commission staff Report
Exhibit B- Appeal Letter
WW:ww
PC/cccup43
11/02/89
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CITY PLANNING DIVISION
Community and Economic Development Department
MEMORANDUM
DATE: September 6, 1989
TO: The Honorable Planning Commission
FROM: Planning staff
SUBJECT: CUP 89-043, VAR 89-89-035
Address: 1865 Lincoln Boulevard
Applicant: Andrew M. Oldfield
SUMMARY
Action: Conditional Use Permit, Variance to permit an eight seat
fast food Subway Sandwich Shop in an existing 1037 square foot
commercial space located in a mixed retail commercial center in
the C4 (Highway Commercial) District. A variance is required to
permit use of 27 existing parking spaces in-lieu of 38 parking
spaces required for the existing commercial uses and the fast
food use.
Recommendation: Denial.
streamlining Deadline Date: February 4, 1990.
SITE LOCATION AND DESCRIPTION
The subj ect property is a 19,369 sq. ft. parcel located on the
northeast corner of Lincoln and Pica Boulevards, having a
frontage of 109.97 feet on Lincoln Boulevard and 127.95 feet on
pica Boulevard. Surrounding uses consist of commercial busi-
nesses to the north (C4), commercial businesses to the south
(C4), multi-family residential and commercial uses to the east
(C4, R2) and commercial businesses to the west.
Zoning Districts: C4 (Highway Commercial)
Land Use Districts: Lincoln South-Commercial Corridor
Parcel Area: 19,369 sq. ft.
PROPOSED PROJECT
The proposed project consists of the operation of 1037 square
foot Subway sandwich fast food and take out use located in a
mixed use commercial center. The fast food sandwich shop will
employ four peak hour employees during the hours of 10:00 a.m. to
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2:00 a.m.. A total of eight customer seats are located in the
shop. There will be no sale of alcoholic beverages in conjunc-
tion with the use. Under SMMC Section 9020.4 a conditional use
permit is required to permit a take-out or fast food restaurant
use in the C4 District.
A variance is required to permit use of 3 of 27 existing on-site
parking spaces for the fast food use in-lieu of providing 11 ad-
ditional parking spaces needed for the development of the fast
food use. Under SMMC Section 9044.4, 24 parking spaces (calcu-
lated at one parking space per 300 square feet) are required for
the existing retail and fast food uses thereby leaving thee un-
used parking spaces. Fourteen (14 ) additional parking spaces
(calculated at one space per 75 square feet) are required for the
fast food use. A total of 38 parking spaces are required for the
existing and proposed uses.
MUNICIPAL CODE AND GENERAL PLAN CONFORMANCE
The proposed project is inconsistent with the Municipal Code
parking requirement to provide additional parking spaces for a
fast food or take out restaurant use developed after the Septem-
ber 8, 1988 Zoning Code effective date.
CEQA STATUS
The project is categorically exempt from the provisions of CEQA,
City of Santa Monica Guidelines for Implementation 3(14).
FEES
The project is exempt from payment of planning fees.
BACKGROUND
In July 1986, the Planning Division staff approved Administrative
Approval 333, to permit development of an 8,700 square foot com-
mercial center.
In February 1987, the City Council upheld the Planning Commis-
sion's approval of DR 366 to permit operation of a convenience
market selling beer and wine located in a 2400 square foot lease
space subject to a condition that restricted hours of operation
from 7:00 a.m. to 1:00 a.m.
In April 1987, the Planning Division staff approved Administra-
tive Approval 460a to permit operation of a 1000 square foot
donut shop with operating hours of 7:00 a.m. to 12:00 midnight.
In June 1987, the Planning Commission approved DR 384 to permit
operation of a 1037 square foot donut shop on the site with
operating hours of 4:00 a.m. to 1:00 a.m.
In September 1987, the Planning Commission approved DR 403 to
permit operation of a 965 square foot pizza shop on the site with
operating hours of 11:00 a.m. to 1:00 a.m.
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In April 1989, the Planning Division staff denied Administrative
Approval 89-043 to permit operation of the fast food/take out
subway sandwich shop based upon the code requiring issuance of a
conditional use permit for the use in the C4 District.
ANALYSIS
A fast food restaurant use typically operates with a greater
vehicle turnover rate than a full-scale sit down restaurant or
similar commercial use. The greater vehicle turnover rate is
reflected in the fast-food parking standard in the zoning Code.
The code states that the parking requirement for a fast food or
take-out use shall be calculated at 1 space per 75 sq. ft. of
floor area with a minimum of 5 spaces provided--regardless of the
size of the restaurant.
The appl icant 's proposal does not meet the parking requirement
specified in the code. A variance to permit 3 in-lieu of 14
parking spaces required for the fast food and take out uses was
submitted as part of the restaurant request. It appears that
since eight fast-food restaurant seats and four peak hour em-
ployees are proposed with only three parking spaces designated
for proj ect use, the customer and employee parking demand will
exceed available parking. Traffic generated by the fast food use
will be further intensified by the take out service component
other fast food, take out and food related uses existing on the
site. These uses contain similar operating hours and will ac-
count for similar vehicle turnover rates. The loss of eleven
parking spaces in a center that contains other fast food and food
related uses could result in customer and employee parking intru-
sions into surrounding residential neighborhoods.
Another concern regards the lack of vehicle loading zone spaces
for use by del i very trucks. Fast food and take out uses are
supported by daily vendor deliveries. There are no vehicle load-
ing spaces provided on the site. Therefore, delivery trucks will
require temporary parking in customer parking spaces or in drive-
way aisles. The temporary use of customer parking by delivery
vendors will further reduce available on site parking and could
result in increased neighborhood parking intrusions. Under Code
Section 9045.1, one vehicle loading space is required for use
with the center.
The development site is located at the intersection of two promi-
nent arterial streets (Pico/Lincoln). Under the Circulation Ele-
ment of the General Plan, designated arterial streets are intend-
ed to carry the majority of traffic entering or traveling through
the city. The highly visible street frontages and convenient
street access to the site from both arterial streets may intensi-
fy daily customer use of the site. Customer parking demand would
also be increased.
Finally, the applicant has not submitted information or other
studies to indicate this national sandwich shop franchise would
generate substantially less traffic than what the zoning code or
general plan require. Since operation of the fast fOOd/take out
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use depends upon variance approval, the staff maintains the con-
ditional use permit should also he denied.
RECOMMENDATION
It is recommended that the Planning Commission deny CUP 89-043
and VAR 89-035 based upon the following findings:
FINDINGS
CONDITIONAL USE PERMIT FINDINGS
1. The proposed use is one conditionally permitted within the
suhject district but does not comply with all of the ap-
plicable provisions of the "City of Santa Monica Compre-
hensive Land Use and zoning ordinance", in that the mini-
mum code parking requirement for a fast food/take out res-
taurant cannot be met and the applicant has submitted no
compelling evidence justifying a reduction from the normal
parking requirement.
2. The proposed use would impair the integrity and character
of the district in which it is to be established or lo-
cated, in that parking and traffic intrusions will impact
the surrounding residential neighborhood and customers and
employees will be required to park on side streets or on
adjacent commercial parcels.
3. The subject parcel is not physically suitable for the type
of land use being proposed, in that the site contains
several existing fast food and take out food uses with
similar operating hours and a similar demand for on site
parking. The parking demand of the combined fast food and
take out uses and other on-site commercial uses will ex-
ceed available on-site parking.
4. The proposed use is in compatible with the land uses pres-
ently on the subject parcel but will adversely impact use
of other onsite uses by creating a greater demand for
customer and employee parking spaces. Circulation and
parking conflicts will occur. The character of the sur-
rounding neighborhood will be impacted.
5. The proposed use would not be compatible with existing and
permissible land uses within the district and the general
area in which the proposed use is to be located, in that
traffic and parking intrusions would impact the surround-
ing neighborhood and may result in increased vehicle and
pedestrian impacts.
6. The proposed use is incons istent with the goal s , obj ec-
tives, and policies of the General Plan, in that the
General Plan encourages development of adequate parking to
meet customer and employee parking demands. The develop-
ment of the fast food/take out use with an inadequate
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amount of parking will result in adverse traffic and park-
ing impacts.
VARIANCE FINDINGS
1. There are not special circumstances or exceptional charac-
teristics applicable to the property involved, including
size, shape, topography, location, or surroundings, or to
the intended use or development of the property that do
not apply to other properties in the vicinity under an
identical zoning classification, in that the size of the
parcel, parcel shape and flat surface topography do not
restrict the development of parking.
2. The granting of such variance will be detrimental or in-
j urious to the property or improvements in the general
vicinity and district in which the property is located, in
that the shortage of on-site parking will require em-
ployees and customers to circulate and vehicle park in
adjacent commercial and residential districts.
3. The strict application of the provisions of this Chapter
would not result in practical difficulties or unnecessary
hardships, not including economic difficulties or economic
hardships, in that the commercial space can be used for an
approved commercial activity that requires a lesser park-
ing amount or the developer can provide additional parking
for the fast food and take out use.
4. The granting of a variance will be contrary to or in con-
flict with the general purposes and intent of this Chap-
ter, or to the goals, objectives, and policies of the
General Plan, in that the General Plan and Zoning Code
establish minimum parking and circulation objectives that
are intended to reduce parking and traffic intrusions.
5. The variance would impair the integrity and character of
the district in which it is to be located, in that it will
result in spillover traffic and parking intrusions.
6. The subject site is not physically suitable for the pro-
posed variance, in that there is nothing unique about the
take out or fast food uses proposed and the parcel shape,
size and location do not restrict restaurant development
or other approved commercial uses.
7. The strict application of the provisions of Chapter 10 of
the City of Santa Monica Comprehensive Land Use and Zoning
Ordinance would not result in unreasonable deprivation of
the use or enj oyment of the property, in that the fast
food/take out restaurant can be developed in a smaller
leasing space on the site, so that parking can be reason-
ably accommodated. Other permitted commercial uses may
also he developed instead of the fast food/take out res-
taurant use.
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Prepared by: Wanda Williams, Associate Planner
PC/cup8943
WW:ww
08/01/89
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ATTACHMENT A
MUNICIPAL CODE AND GENERAL PLAN CONFORMANCE
Category
Land Use
Municipal Code Element
Permitted Use C4: Fast Food same
and take out uses
Height
FAR
Parking
NjA (Existing building)
NjA (Existing building)
1 space per 75 N/A
sq. ft. (minimum
of 5 for fast food
or take out uses)
onsite uses ,14 for proposed
for fast food use
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Project
Fast food and take
out uses
27 spaces
(deficit of 11 sp.)
24 spaces provided
for existing uses,
3 for proposed fast
food use
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CIty of
Santa Monica
Cul"':TU"oty a."<l E::Ol";)m,c OeveICpr"'e"l Ciewme,.,t
Plinmn; and ZOning DIvision
,2'31458 83'1
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,,-PPEAL FO~M
FEE $100 00
8are =lIed
Received bv
Rece'PI No
t:~te~r~0g89
~l,tr
~\ "J n~'Z?
NaMe F-rd~eH H. r.1d:leld
ACCress 1865 Lincoln Boulevard, Sa:1ta "or'i.ca, Califo=~,la
COl'lact?erscr K:::lS';:l" H'..:bbard/La',;re-:ce & ,:)hone (213) 393-1CO~
;';arc.in'1
Please desc,be !t1e )'"alee! ana deCISIOn Ie tre aptlea;ed }l.~peal o~ techn:l..cal cenlal bv P1a:lnl "lg
COTInlSS1Cn of appllcatlo~S fer CJP 89-043 and VAn 89-89-035 to perr1t
at' eigh~-seat :ast foed Subway San~~'ich S~O~ to replace do~ut sho~ ir'
existing l,037 sa~are foot cor~e~cial space located in a ~ixed retaill
cO~$e~cial ~ente::: at 1865 Ll:1Co1n Bcu1e"ard owned by the Apollcent.
Case N~mber CUP 89-043; VAR 89-89-035
~~~ 1?65 Lircol:1 Boulevard
AooIlcarl ;;'::.drew M. Oldfield
Cng'naJhe3nngca'e Septe-"ber 0,1989
Cnglr.al aC:lOn 2-2 vote by Ccn'1ission deeT'ed .::.enlal of <;:T,!P ard Va::-lance.
?lease stale tre ,pecillc rUSOM(S) '<:r tI'Ie appeal See corres'Oonc.ence fro"" La\>lrence & Hard~n;
to Cl~y Councll dated SenteT-ber 11, 1989 attached hereto and lncorooraced
herein by reference.
II ~ SI)iCI s 1lNl8d \8 ~ of bill
LA~';RE~CE & HARDI~G ./
S';rlillUreBy ~ /-4...hh4--'--'f Date Se?terber 13! :989-
'(RISTI~ HUBBARD
Attorneys for Andrew~. Oldfle1d
$MIll Monk:. r.\Jnk:lpII CGdI
, Subchapler 10L J.ppuIt
Sedfon 9132.1 APl'fal tlf ac:dcn.
(a) Niy Pefscn ."ay awe.aI a deoSlOll oIlt1e ZOMQ AGrn~sllal(li 10 ItIlJ PIarnnO Ccmm.SSlOn "deCtSla1 0I!te P'a/1'lll1Q
Cctnm'$SlOl'l on SlJCt1 aooeal shall :le 11\31 and not ~ '0 'I.1thet ~ Xl te Clry Co\.f"d
,'b) Ny pe'"SlJ/'l may appeal all Ol1grei deoSiOIl ollt'oe P'.ar<<q ~II\ISSlon to lI'e C,ly Cot.n::I
(el Orce an aweaJ $ "led. III aopeIaJe bOOy may rlNlllW an:! take acflOl'lon an oe\8Cll1lmlfolls, l~e:2tJot'.s. decSlCi1S..
JVJr;II'e!'lts. 01 Sd'llrIar .Koons ~ <Ihd1 ~ n tie pU'Ilew 01 h ongmal !lea"oI'IO boctr co !he apPic:a(lOO or ~ and '5
noll,mlleCl ~ on, !he ongnaI reason stared b' 1l'1e appeal.
Sec:Ion 91322 F1I1n9 01 AflI)eals.
(al Ajlpea!s sI'iaII be addressee 10 the apce!lare bOay on a !crm prescrbed by lhe lOI1l19 AarlrrsD'alOf ptZSUanllc ~
&.td13pler 10J The ~ snaJI stale tot specie '1!3sons tof 1'e bass el 'he aOllf!aJ
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L\hTREXCE & H~\RDIXG
4 ;:lIClC.~ E.Ss. ":I"'l.&.... c..oClg.act"T~a.Po.L
ATTCRfl"jEvS AT L.A";/v
1250 S-)(TH ST!l:IEE'-
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SA...TA hoI'O.....IC.A CAlr..''''-ORNIA 90401
TELEPHONE "2-31 393~IOC7
TI!:LI!:COP'ER (213] 458-'959
KE.vl""4 V ptOZ.~
El'Z~9E"'H A S-EI:l...,
5...E.~MAN L $.TACE:y
CPO ::::H.''''S.~L
september 13, 1989
Santa Monica City Council
City of Santa Monica
1685 Main street
RoeJt 200
Santa Monica, California 90401
Re: Appeal of Denial of CUP 89-043 and VAR 89-89-035
Address: 1865 Lincoln Boulevard
Applicant: Andrew M. Oldfield
Ou~ File No. 398.2
Dear councilmembers:
We are representing Andrew M. Oldfield in connection with his
applications for the above-referenced Conditional Use Permit
("CUP") and Variance which would permit an eight-seat fast food
Subway Sandwiches franchise to replace a donut shop formerly
located in a 1,0~7 s~~are foot commercial space, whi=h i~ part of
an 8,439 square foot mixed retail/com11l~rcial center on Lincoln
Boulevard. The applicant proposes that the sandwich shop would be
served by three parking spaces which was the parking capacity
available to the former donut shop. On September 6, 1989,
notwithstanding unanimous neighborhood support at the public
hearing, the CUP and the Variance were deemed denied because the
four voting Planning Commissioners could not agree to approve or
disapprove the CUP and the Variance. This letter supplements the
Appeal Form and sets forth the specific reasons for the applicant's
, appeal in response to the recommendation by the Planning staff to
the planning Commission to deny the CUP and the Variance.
I. SummarY of Reasons for ADDeal.
A. Variance
A review of Staff's memorandum dated August 16, 1989, to the
Plahning Commission reveals that the' basis for its negativs
recommendation on the Variance is its conclusion that the parking
for the sandwich shop is insufficient under the parking
requirements of the new santa Monica zoning ordinance, as adopted
in 1988 (the "Zoning Ordinance"). As discussed below, the
application to operate the sandwich shop does not raise a parking
issue which even should require a variance. Consequently, the
staff erred in requiring the Variance. Instead, the parking issue
\01
L.\\fRESCE & liARDlXG .
.
... P~O"ESS.ON"'L C.OAPOR"T10N
..foTTOENEYS A.T L/oW. .
~an~a Mcn1ca C1ty Cc~nc1l
city of Santa Monica
Septe~ber 13, 19~9
page 2
raised by Staff should be governed by the rule of grandfathered
parking, which has been followed consistently by the city in
similar situations. Unuer this rule, the parking for th~ sandwich
shop simply constitutes a continuation of the nonconfo:ming, but
legal, parking -::apaC' i ty permitted for the former dOn!lt sp'>p. Under
these circumstance~, no parking variance is required.
As we also discuss below, even if a variance were required,
the overwhelming neighborhood support for the sandwich shop and the
benefits of the sandwich shop to the neighborhood favor approval
of the Variance. Consequently, the Staff erred in recommending
denial of the Variance.
B. CUP
The CUP would permit the sandwich shop simply to replace the
fonner donut shop in the existing 1, 037 square foot commercial
space. As evidenced by the strong and unopposed neighborhood
support for the proposed sandwich shop, there is no dispute that
the Subway Sandwiches franchise is an appropriate u~e for the
center, and thus the CUP should be approved.
II. factual eackaround
In July, 1986, the applicant received an Administrative
Approval to develop the center on Lincoln Bouleva~d. Between
February and september, 1987, the applicant received approvals to
permit operation in his center of a convenience market selling beer
and wine, a pizza shop and the donut shop. Specifically, the donut
, shop was approved fo= operation in June, 1987.
When the donut shop was approved, the then-effpctive law
required the donut cohop, as a building in a C4 district under 8,000
square feet, to pr'Jvide 1 parking place per 300 squar~ feet of..
floor area. The donut shop complied with the then-effe~t~ve law
by providing 3 spaces tor the donut shop.
Ir~ 1988, the nt:!W ~oning Ordinance created a "fast fooall use
category for parking purposes, which requires a fast food shop to
provide 1 parking place for every 75 square feet of the shop, with
no less than five space3 required. Consequently, as of 198~, the
3-space parking capacity for the donut shop no longer conformed to
the parking requirements of the Zoning ordinance. However, such
parking remained legal since it complied with the parking
requirements in effect when the donut shop commenced operation.
-\l'
. L\WRESCE & IL-\RDlSG
.
.
,It PRO"-ESStONAl. CC-R.PORATJON
....TTORNEYS ....T l.f'w
Santa Mon1ca City Council
city of Santa Monica
September 13, 1989
Page 3
In February, 1989, the donut shop ceased operation. On
April 26, 1989, the Planning Division staff denied an
Administrative Approval (AA 89-043) to permit operation of the
sandwich shop on the existing site of the donut shop with the
existing parking capacity. The a~nial was on the ground that the
proposed parking for the sandwich shop is inadequate under the new
Zoning Ordinance.
On June 16, 1989, the applicant filed the CUP application to
permit Subway Sandwich Shop to operate a fast food franchise in the
existing 1,037 square foot former donut shop space in the center.
The applicant also filed an application for the Variance to pe:.mit
parking for the sandwich shop to continue at the same capacity as
allowed for the former donut shop.
On September 6, 1989, the Planning Commission conducted a
public hearing on the CUP and the Variance applications. The four
voting Commissioners could not agree to approve or disapprove the
Variance and tha ~JP. Consequently, the Commissic~ did not have
sufficient votes to take action and the applications were deemed
denied by the Commission.
The sandwich shop has received overwhelming neighJ:.:)rhood
support. The Pica Neighborhood Association has endorsed the Shop,
as have individual neighboring residents, who have written letters
of support and who testified at the September 6th hearing.
III. Discussion of Snecific Reasons for Anneal
A. No Parking Variance Is Required Because The Parking For
The sandwich Shop Will Be The Same (And Probably Less)
Than The Nonconforming, But Legal, Parking Capaci ty
Available For Th~ Donut Shop.
When the donut shop open~d, the then-effective Zoning
Ordinance based parking requirements on the square footage of the
buildings in a C4 district. For buildings up to 8,000 square feet,
one space for every three hundred square feet of adjusted floor
area was required. Therefore, the 1,037 square foot donut shop
provided 3 spaces to comply with the then-effective law. (The old
Zoning Ordinance did not impose more intense parking requirements
for fast food or take-out shops.)
By contrast, the current Zoning Ordinance, as adopted in 1988,
bases all parking requirements on the type of use of the building.
\f
LAWREXCE & HARDlXG .
.
JI> PROFI:S$ION...L CO~PORATIOto.l
ATTOflNEYS AT I../'W. .
San~a Monlca Clty Councll
city of Santa Monica
september 13, 1989
Page 4
For parking purposes, the Zoning Ordinance provides a special
category for "fast food" and requires 1 parking space for every 75
square feet. Section 9044 . 4 . Under the increased parking
requirement, the donut shop failed to comply because it offered
only 3 of the now required 13 parking spaces. However, the
original parking was grand fathered in as noncontorming, but legal
parking for the fast food donut shop.
The principle of grand fathered parking is to allow the
replacement of one use of a space with another use, provided that
the new use does not generate an increase in parking over the
parking generated by the prior use. Consequently, under the rule
of grandfathered parking, when, as here, a prior use is replaced
by a new use, the parking for the new use should not require a
parking variance unless it can be shown that under the new zoning
Ordinance the new use requires more parking than the new Zoning
Ordinance would have required for the prior use.' Here, the new
zoning Ordinance would have imposed the same parking requirements
on the prior donut shop as it imposes on the proposed fast food
sandwich shop. Since both the prior and proposed uses are suojec~
to the same parking requirements under the new Zoning Ordinance,
the sandwich shop's proposed continuation of ttle nonconforming
legal parking capaci ty permitted for the donut shop does not
trigger a requirement that the sandwich shop parking be updated to
comply with the parking requirements under the new zoning
Ordinance.
At the September 6th hearing, however, Staff contended that
the grandfathered parking rule does not apply because under the old
. Zoning Ordinance the donut shop was considered a "retail" and not
a "fast foodu use. Staff then implicitly compared the parking
requirements for a retail use under the new Zoning Ordinance (WhiCh
is 1 space per 300 square feet) with the parkin; standards for the
proposed fast food sandwich shop (which is 1 space per 75 square
The.rule of grand fathered parking is applied in the current
provisions of .:.he Zoning Ordinance. For example, Se:tion 9044.3 (b)
recognizes that throughout the continued existing lawful use of a
building, parking may remain at the level required by law at the
time of original construction of a building. Pursuant to
section 9044.3 (d), additional parking spaces in the number required
by the Zoning Ordinance will be required only for new floor area
added to an existing structure, and not for the entire parcel.
\I
. .
LA\v'RENCE & IIARDlXG
.
.
A ~l=tOFESS~ONAL COI:IPOFl'ATION
ATTORotE:YS AT LAW
Santa Monica City Council
City of Santa Monica
September 13, 1989
Page 5
feet with a 5 space minimum). On the basis of this analysis, staff
then presumed that the sandwich shop would create a greater parking
demand than the former "retail" donut shop, thereby requirir.g a
variance for the increased but insufficient parking.
Staff, however, has 'erred in its analysis. First, ther8 is
no clear evidence of how ~ donut shop is defined for use purposes
under the old Zoning Ordinance. Secondly, the definition of the
donut shop under the old Zoning Code is irrelevant to the parking
issue here. What is relevant is how the new zoning Ordinance would
define the donut shop, so that a relevant comparison can be made
of the parking g~nerated by the donut shop to the parking to be
generated by the new sandwich shop. The new, rather than the old,
Zoning Ordinance should govern the comparison of the donut and
sandwich shops because the new Zoning Ordinance offers the best
estima_es of the parking needs generated b}' various uses.
The new Zoning Ordinance has created a fast food category of
use, defined as follows:
"A restaurant where customers purchase food at
a walk-up window or counter and either consume
the food on the premises within a short period
of time or take the food off the premises. A
restaurant shall not be considered a fast food
or take out restaurant solely on the basis of
incidental or occasional take-out sales."
Section 9000.3
staff, in its memoranuum, categorizes the sandwich shop as a fdst
food or. tak~-out restaurant under the Zoning Ord ~ nance. The former
donut shop should be similarly categorized under the current Zoning
Ordinance. If Staff contends that the former donut shop woula not
be a fast food shop unde~ the current Zoning Ordinance, the ~ity.
Council should carefully consider the implications of such a
decision. In the future, if a proposed donut shop is consid.~re~
a "retail" use, parking f"r such use will not have to comply hith
the more stringent fast fooa requirements and no conditional use
permit will be required. Consequently, a donut shop such as
winchell's will not be regulated as a fast food shop, which it
surely is under the definition of fast-food restaurant. Staff's
position in this matter ultimately is untenable. Unless the City
Council concludes that a donut shop is a fast-food use under the
Zoning Ordinance, an array of fast-food uses could be treated as
retail uses.
\I
. ..
~. plOOF"ESS'ONAL COQPOFlAnON
.
.
LAWRE~CE & HARDlXG
ATTORNEYS AT U'.W
Santa Monica City Council
City of Santa Monica
September 13, 1989
Page 6
Here, the proposed sandwich shop is simply a substitution of
one fast food use for another in the existing 1,037 square foot
space. No change in parking is proposed. Al though 3 parking
spaces are allocated to Subway Sandwiches, the applicant has
elected not to physically designate certain spaces within the 27-
space center to certain stores in order to maximize efficient use
of the parking spaces. As a practical matter, the sandwich shop
will probably generate less parking needs than the former donut
shop. Unlike the donut shop, the sandwich shop offers delivery of
its food items. The sandwich shop will provide seating for eight,
which is less than the seating provided by the donut shop. In
addition, the sandwich shopls clientele will be, in major part, a
lunch-time, walk-in clientele.
Under the rule of grand fathered parking, the variance is not
required at all because Applicant's proposal is to continue the
use of the donut shop space as another fast food shop with a
continuation of the nonconforming parking at the same or a lesser
level.
B. Even If A Parking Variance Were Required, The
Facts Support Granting The Variance Under The
Test Articulated In The Zonina Ordinance.
Section 9113.5 sets forth the findings required to be made by
the Zoning Administrator before a Variance can be granted. section
9113.5(j) specifies that:
It (j) All [of the requirements in subsections
(a) through (i)] need not apply to variances
which the Zoning Administrator finds are
essential or desirable to the pUblic
convenience or welfare and are not in conflict
with the General Plan and where the granting
of the variance will not be materially
detrimental or injurious to property or
improvements in the general facility and
district in which the property is located."
The sandwich shop is likely to generate less parking needs
than the donut shop, since a large part of its business is delivery
and it anticipates serving a mainly walk-in neighborhood client
base. Consequently, to grant the Variance in favor of the sandwich
shop will not detrimentally impact the neighborhood. Moreover,
the neighborhood has endorsed the proposed sandwich shop. The
"
.
L~\fREXCE << HARDI~G
A !PROF"E-SSIO"'AL- COR~OAATION
.
.
ATTORN&YS AT Lfo-W
Santa Mon1ca City Council
City of Santa Monica
September 13, 1989
Page 7
testimony at the September 6th hearing by members of the
neighborhood and the Pico Neighborhood Association reveal that the
consensus of the neighborhood is that Subway Sandwiches will be a
positive addition to the community. There has been no neighborhood
opposition to the sandwich shop.
c. CUP 89-043 Should Be Granted Because the Use
Is Appropriate For The Location, As Evidenced
By The Unanimous Neiahborhood Suppo~t.
This is a project that is appropriate for a commercial/retail
center on Lincoln Boulevard, as evidenced by the support of the
neighborhood. The neighborhood is enthusiastic about the addition
of the sandwich shop. Moreover, as discussed above, as both a
legal and practical mater, there is no parking issue to prevent the
approval of the CUP.
Furthermore, in connection with the grant of the CUP, the
applicant is prepared to work with the City and the neighborhood
to ensure Subway Sandwiches will adopt operating practices that
are, and will remain, compatible with the interests of the
neighborhood and tha City of Santa Monica. Subway Sandw~ches will
consider a seat limit and the applicant is prepared to stipulate
that there will be no expansion of fast food uses in the Center
beyond those areas presently devoted to fast fooa. use. The
applicant will also consider any other conditions intended to
ensure Subway Sandwiches operates in a manner compatible with its
neighbors.
~
6
.
L\\\'REXCE & IlARDIXG
IL PRO~~SSICN"L '::O,",PORA.T~CIwiII
AT'TOflNE1'S AT LfW. .
San~a Mon1ca C1ty Counc11
City of Santa Monica
September 13, 1989
Page 8
IV. Conclusion
.
For the specific reasons discussed above, the applicant
appeals the decision of the commission.
KH:hs
KH2A-J7.398
cc: Mr. Andrew M. Oldfield
Mr. John Jalili
Mr. Paul Berlant
Mr. Kenyon Webster
Ms. Wanda Williams
Ms. Laurie Lieberman
...,
very truly ~~u::, ;?
#t~~
Kristie Hubbard
for Lawrence & Harding
a Professional Corporation