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SR-12-A (15) . . I:l.-A NOV 1 4-1~9 /T?J Z--- ?J 06 CjED:PB:DKW:WW:WW cccup43 Council Mtg: November 14, 1989 Santa Monica, California i ;:~ I.~~ ro--- .-~ !~ 1 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 - 1 - I:J.--LJ. NOV 1 4l3B9 . . 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 - 2 - . . 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. - 3 - . '. 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 - 4 - . . 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 - 5 - . .e 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. - 6 - . . 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. - 7 - . . 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, - 8 - . . 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 - 9 - . . 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 - 1 - . . 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. - 2 - . . 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 - 3 - . . 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 - 4 - . . 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. - 5 - . . Prepared by: Wanda Williams, Associate Planner PC/cup8943 WW:ww 08/01/89 - 6 - . 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 - 7 - . 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 ~'. . . 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 - ~~f ,,-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 (bl AA aPOeai 1)/ a Zonn;J A4nllllStralCl' aextl s."all oe fied votlt: :toe ;l'amng ()viSion 'Il'IlhIn 14 constcub...e caieMat aays ~ Ihr dale of acDcltIlrom ~ an aooeaI ;s ~ Ie) "' i$XleaI Gl iI P'ano.l"9 ~1SSlOrI <ieasKIn Y\d be ~!ed II ,. Gl!ice ~ :tIIii Cl'!' C\elt ard .4lllt\ t.e Zontr-q .acm1/'!t9i~ -NIltI1I'1 14 ::onse<:iJVve ~rear days 'olowrl; h dale of iQon "Of l'IOdl an ajlP&al ~ 'l'allB :d} ~ 1t'.aII be aa:om paned 'JY te req\ftC ~ 'ee Seaion 91.32.J Appeat Metr1nQ'. P\tiIc I1:lllal at ~ ilIlPIiIIl'ieanng SIlai Cl)fIfOOllIe :rw lI'.amern ~ IN original "IOlIc:e was ~ , Secfon 91~. EJlICltvt 0111 of Ap()taltd ActlonI. (a} Extec:t u ohtwlw prowjed lot 1/1 ~ Cl'ia$. an ~ 01 ,. ZMrg .fannstalDr ~ ro 1t'e PI;u-'-.-v ~ WJI no! !leccirne elIect.e iI1eSS ard \M ~ Cy till Comm'sScn. (b} AA ao;oon at ,. Comr.~1 ~ Ie :!llI Cily Cotr(lI sr13lI ra DeccIIne aIItcM ~ R 'I1li ~ by h Cl)' CWd. ~ 9132.5 AP9NI F.... r.lemoer, at .. Qty CoI.n:iI ~ P'arn11o ComrnlS3lOl'l WII r'W:l! be ~ Ie Ply I fee 'IIIf1l!f'l 'Irq .. appeai . . 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'- C-R S-::;D"....CR...... ,.A5tOI....Ci i=:I =...ARO A L.AWo:IE"'tCf; "=-E.........E....... L. .. ""'-CI-'!:!liiI' su -I!: 300 .0:"1 5-1..... ........BS..;:;c::: ::.C'\l.....A E WA"F;i:"E..... 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