SR-402-001 (4)
PCD:SF:JT:AS:SHK:TK:f:\plan\share\council\strpt\01APP012.doc
Council Mtg: July 10, 2001 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Appeal 01-012 of Planning Commission Denial of Conditional Use Permit
00-015 to Amend the Conditions of Approval of Conditional Use Permit
99-007 to Include the Reconfiguration of the Previously Approved Floor
Plan With the Addition of Seats and an Outdoor Dining Area for an
Existing Restaurant at 1251 Third Street Promenade. Applicant/Appellant:
Adolpho Suaya, Gaucho Grill. Property Owner: Federal Realty Investment
Trust.
INTRODUCTION
This report recommends that the City Council deny the appeal and uphold the Planning
Commission’s denial of Conditional Use Permit 00-015 to amend Conditional Use
Permit 99-007 to add 33 interior seats and an 11-seat outdoor dining area at an existing
restaurant at 1251 Third Street Promenade. The restaurant, Gaucho Grill, has a Type
47 alcohol license, and alcohol service is also proposed for the new outdoor dining
area. On March 21, 2001, the Planning Commission voted 7-0 to deny the project. The
applicant appealed this decision on April 4, 2001. The Planning Commission staff
report is contained in Attachment A, the Statement of Official Action is contained in
Attachment B, and the minutes are contained in Attachment C. The appeal statement is
contained in Attachment D.
BACKGROUND
The subject property is a 15,000 square foot parcel located on the east side of the Third
Street Promenade between Arizona Avenue and Wilshire Boulevard. Surrounding uses
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are commercial and office oriented businesses, and the surrounding properties are all
similarly zoned BSC-1 (Bayside Commercial District).
Gaucho Grill originally located at this site in 1992. Subsequently, AA 98-033 was
approved in 1998 authorizing demolition and construction of a new 21,017 square foot
building. Gaucho Grill relocated into the new building. A Conditional Use Permit (CUP
99-007) allowing a Type 47alcohol license to be used in conjunction with the 91-seat
Gaucho Grill restaurant was approved in 1999.
CUP 99-007 approved a floor plan with 91 seats consisting of separate sets of tables
and chairs. However, in contravention of CUP 99-007, a floor plan with 124 seats was
built instead. The main change from the approved floor plan involved the construction
of a booth area near the center of the restaurant created by a series of low walls and
partitions. A low wall between part of the dining area and the counter dining area was
extended further than as shown on the approved of CUP 99-007, with a built-in bench to
accommodate table dining. The seating area near the kitchen was also changed to
incorporate a bench structure for table dining. In addition, unauthorized outdoor dining
was established incorporating tables and chairs located outside the front of the
restaurant. The proposed project would amend the existing Conditional Use Permit
(CUP 99-007) to reflect the existing floor plan and add outdoor patio dining that includes
alcohol sales.
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Project Design
The proposed 96 square foot outdoor dining area would extend three feet from the front
of the property and would be surrounded by a black, steel railing. The proposed interior
seating reconfiguration and outdoor patio addition would bring the total restaurant seats,
including counter dining seats, to 135. The proposed hours of operation would be
consistent with those approved by CUP 99-007, Sunday through Thursday 11:00 AM to
12:00 AM and Friday and Saturday 11:00 AM to 2:00 AM. No live entertainment or
dancing is proposed.
Table 1. Comparison of Approved, Existing, and Proposed Floor Plan Information
Approved Existing Proposed
Floor Plan Floor Plan Floor Plan
(CUP 99-007) (CUP 00-015)
Seating
Indoor Dining 80 116 * 116
Counter Dining 11 8 * 8
Outdoor Dining 0 0 11
Total Seating 91 124 * 135
Alcohol License **
Type 47 Type 47 Type 47
Hours Of Operation **
11am – 12am 11am – 12am 11am – 12am
Sun –Thurs, & Sun –Thurs, & Sun –Thurs, &
11 am – 2am 11 am – 2am 11 am – 2am Fri
Fri and Sat Fri and Sat and Sat
* Existing seating does not comply with previously approved CUP
** No change proposed
Planning Commission Action
The Planning Commission considered the applicant’s request at a public hearing on
March 21, 2001. Review of this project had been continued from the December 6, 2000
Planning Commission hearing when Planning staff became aware that the current
restaurant floor plan did not meet the conditions of approval for CUP 99-007. In order
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to allow the continuance, the applicant granted an extension of time, pursuant to State
Permit Streamlining Act requirements, until March 21, 2001.
In assessing the applicant’s requests, the Planning Commission focused on the
applicant’s violations of the conditions of approval for Conditional Use Permit 99-007.
As discussed, instead of building the approved floor plan of 91 seats, a floor plan of 124
seats was constructed. The restaurant closed in 1998 and this floor plan has been in
existence since the restaurant was rebuilt in 1999. Indeed, the applicant testified at the
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March 21 hearing that it had always been the applicant’s intention to build a 124-seat
restaurant. In addition, the Commission was also concerned about the illegal outdoor
dining that existed at the site. Due to these violations, the Commission believed it was
inappropriate to authorize expansion of the restaurant’s entitlements based on
Condition #8 of Conditional Use Permit 99-007 which provides:
“In the event permittee violates or fails to comply with any conditions of approval
of this permit, no further permits, licenses, approvals or certificates of occupancy
shall be issued until such violation has been fully remedied.”
Consequently, the Planning Commission denied the applicant’s request that the
Commission approve any increase in seating or modification of floor plan until the
applicant remedied the violations of the conditions of approval.
APPEAL ANALYSIS
Alan Bally, representing the applicant for the subject property, appealed the Planning
Commission decision. The appeal statement is contained in Attachment D and is based
upon the arguments below. These issues are followed by staff’s response:
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1. The Planning Commission erred and abused its discretion by failing to consider
the matter presented.
The appellant contends that the Planning Commission failed to consider the application
presented, which was the request for the amendments to the existing Conditional Use
Permit to modify the floor plan and increase the number of seats. The Planning
Commission clearly considered the application presented, but believed that
consideration had to be undertaken in light of the conditions of approval. The
Commission believed that it was unable to act on the request due to the fact that the
existing floor plan was not the floor plan approved under CUP 99-007 and illegal
outdoor dining existed at the site. Consequently, approval of the request would have
contravened Condition #8 of the CUP. The nature of the violation and the condition of
approval in the existing Conditional Use Permit prohibiting any further entitlements in
the event of an ongoing violation precluded the Commission from acting on the
proposed plans and instead resulted in the application’s denial.
2. The Planning Commission’s desire was to punish the applicant, and if the intent
of the Commission is to punish all non-complying restaurants, then fine dining on
the Promenade and throughout the City will come to an end.
The appellant states that the Commission intended to punish the applicant, and that the
Commission’s action would result in the decline of restaurant businesses in the adjacent
area and citywide. This statement is pure speculation and belies the record before the
Commission. As the record reflects, the Planning Commission did not deny the request
to punish, but to ensure that establishments comply with all conditions of approval
issued in conjunction with a Conditional Use Permit. The Commission’s action was
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based on their concern that approval of further entitlements was not appropriate since
the applicant had failed to meet previous conditions of approval.
3. The existing restaurant was built with permits and inspections.
The appellant states that the current floor plan for the restaurant, consisting of 124
interior seats, was the floor plan that received a building permit, and was inspected and
approved by the Building and Safety Division. City records show that a building permit,
#B66266, was issued on July 28, 1999, for a restaurant tenant improvement at the
subject location. The building permit specifies that the approved permit was for the
restaurant floor plan approved by Conditional Use Permit 99-007, which allowed for a
maximum of 91 seats. However, staff has been unable to locate the approved plans
associated with this particular permit. The final inspection of the restaurant tenant
improvement was approved on December 7, 1999, by an inspector from the Building
and Safety Division. The records to verify the floor plan cannot be confirmed. However,
based on the records available for Conditional Use Permit 99-007 and Building Permit
#B66266, staff is confident that the floor plan that was built was in violation of the
approved floor plan and included 33 more seats than approved. The applicant’s
testimony at the hearing also indicates that their intention was to build a 124-seat
restaurant from the beginning.
4. The Planning Commission failed to recognize that the amended request before
them was the remedy called for by Condition #8 of Conditional Use Permit 99-
007.
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The appellant contends that the application for the amendments to the existing
Conditional Use Permit to modify the floor plan was the remedy to the violation of the
conditions of approval. The past practice has been to allow an applicant to apply for a
modification to a CUP to address violations of the conditions of approval. However, the
Planning Commission felt that a correction of a violation through the approval of
amendments to the Conditional Use Permit was not warranted. The Commission did
not believe it could legitimize outstanding conditions of approval violations for an
applicant that has demonstrated an inability to adhere to such conditions. The
Commission felt that no further entitlements could be granted until all violations of
Conditional Use Permit 99-007 were remedied through compliance with all original
conditions of approval. Staff supports the analysis and findings the Planning
Commission adopted in its denial of the CUP amendments.
Conclusion
Since the initial approval of Conditional Use Permit 99-007, the applicant has failed to
adhere to the conditions of approval established by that permit. No additional
entitlements should be granted until this violation has been remedied. Therefore, staff
recommends that the Council uphold the Planning Commission’s determination and
deny the appeal.
CEQA STATUS
The project is categorically exempt from the provisions of CEQA pursuant to Class 1,
Section 15301 (a)(e)(1) of the State Implementation Guidelines in that the project
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involves a request to amend the existing Conditional Use Permit and to add a 96 square
foot outdoor dining area with 11 seats with alcohol service, which involves minor
alterations to an existing private structure and an operational change involving
negligible expansion of use.
PUBLIC NOTIFICATION
Pursuant to Municipal Code Section 9.04.20.20.080, within 30 days after the subject
application was deemed complete, the applicant posted a sign on the property stating
the following information: Project case number, brief project description, name and
telephone number of applicant, site address, date, time and location of public hearing,
and the City Planning Division phone number. It is the applicant's responsibility to
update the hearing date if it is changed after posting.
In addition, pursuant to Municipal Code Section 9.04.20.22.050, notice of the public
hearing was mailed to all owners and residential and commercial tenants of property
located within a 500 foot radius of the project at least ten consecutive calendar days
prior to the hearing. Notice was also given to all neighborhood groups, the Bayside
District Corporation, the Chamber of Commerce, the Downtown Area Resident’s
Association, individuals who provided written and oral correspondence, and published in
the “California” section of the Los Angeles Times and posted on the Department’s
Internet web page. A copy of the notice is included with the staff report (Attachment E).
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BUDGET/FINANCIAL IMPACT
The recommendation presented in this report does not have any budget or fiscal impact.
RECOMMENDATION
It is recommended that the Council deny Appeal 01-012 and uphold the Planning
Commission denial of Conditional Use Permit 00-015 based upon the following finding:
1. The applicant is operating the existing restaurant in violation of Condition #8 of
the Conditions of Approval for existing Conditional Use Permit 99-007 which
states that in the event permittee violates or fails to comply with any conditions of
approval of this permit, no further permits, licenses, approvals or certificates of
occupancy shall be issued until such violation has been fully remedied. The floor
plan approved pursuant to CUP 99-007 consisting of 91 seats was not built and a
floor plan consisting of 124 seats was built instead, including an outdoor dining
area that was not previously approved.
Prepared by: Suzanne Frick, Director
Jay Trevino, AICP, Planning Manager
Amanda Schachter, Principal Planner
Susan Healy Keene, AICP, Senior Planner
Tony Kim, Assistant Planner
Planning and Community Development
Attachments:
A. Planning Commission Staff Report, dated March 21, 2001
B. Planning Commission Statement of Official Action, dated March 21, 2001
C. Planning Commission Minutes, dated March 21, 2001
D. Appeal Statement
E. Notice of Public Hearing
NOT AVAILABLE ELECTRONICALLY
F. Radius and Location Map
NOT AVAILABLE ELECTRONICALLY
G. Photographs of Site
NOT AVAILABLE
H. Plot Plans and Floor Plans for CUP 00-015.
ELECTRONICALLY
NOT AVAILABLE ELECTRONICALLY
I. Floor Plans for CUP 99-007
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