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sr-030910-6a~~~ c;tYo~ City Council Report Santa Monica° City Council Meeting: March 9, 2010 Agenda Item: ~'J~~ To: Mayor and City Council From: Eileen P. Fogarty, Director of Planning and Community Development Subject:, Appeal of Planning Commission approval of a Conditional Use Permit and Variance for The Parlor restaurant located at 1519 Wilshire Boulevard Recommended Action Staff recommends. the City Council deny appeal 09APP-012 and uphold the Planning Commission's approval of Conditional Use Permit 08-015 and Variance 08-021 for The Parlor restaurant located at 1519 Wilshire Boulevard based on the draft findings and conditions contained in this staff report. Executive Summary On September 16, 2009, the Planning Commission approved, in part, a Conditional Use Permit (CUP) and Variance with conditions for The Parlor restaurant. The CUP was filed to allow The Parlor to use the. second floor of the two-story building for bar and seating areas and to expand the maximum number of seats from 135 to 225. The Variance was filed to re-instate an expired off-street parking variance approved to allow for restaurant use of the property. On September 30, 2009, the property owner of the subject property filed an appeal of the conditions imposed by the Planning Commission in its approval of the Conditional Use Permit. The applicant primarily appealed conditions limiting hours of operation and maximum number of seats, both of which were reduced from those currently in operation. Background In 2007, the owner of The Parlor restaurant applied for an Alcohol Determination (AD) and business license as the operator of a new two-floor alcohol serving restaurant at the site of a former restaurant operation. The former restaurant, Cinch, had been in operation for approximately 25 years. It was authorized as a 135-seat restaurant through the approval of a parking variance. for off-site parking for a prior restaurant 1 (there is no available on-site parking). Project plans from that time indicate that only the first floor of the two story building was to be used for the restaurant. The parking variance was approved for a limited 5-year term only. No Conditional Use Permit was required at that time for an alcohol serving restaurant. During the staff review of the 2007 AD application, it was determined that the variance for off-street parking for the restaurant had expired and there were no City approvals for restaurant use of the existing second floor. The applicant, therefore, requested a CUP to allow alcohol service in a restaurant with more than 50 seats and to allow the restaurant to expand to a total of 225 .seats, including the use of the second floor. SMMC Section 9.04.08.40.040(a) requires a CUP for restaurants with more than 50 seats in the Neighborhood Overlay District and Section 9.04.10.18.020 requires existing alcohol outlets to obtain a CUP if there is a 10% or more floor area in the establishment or an increase of 25% or more in the number of seats in any restaurant serving alcoholic beverages. The proposed project represents a 28% expansion in floor area and a 67% increase in the number of seats. A Variance was also requested to reinstate the expired parking variance. The applicant/appellant has requested the. withdrawal of the appeal of the Variance approval. However, pursuant to SMMC section 9.04.20.24.010 (c), the Council must consider and take action on all determinations on the project within the purview of the original hearing body (Planning Commission). On September 16, 2009, the Planning Commission approved, in part, the Conditional Use Permit and Variance with conditions. On September 30, 2009, the property owner of the subject property filed an appeal of the conditions imposed by the Planning Commission in its approval of the Conditional Use Permit. The applicant primarily appealed conditions limiting hours of operation and maximum number of seats, both of which were reduced from those currently in operation. On December 8, 2009 the Council conducted a public hearing and heard public testimony regarding the appeal. At the hearing, newly hired counsel for the applicant/appellant, Stephen Jamieson of Soloman, Saltsman & Jamieson, submitted a 2 Supplemental Appeal Statement (Attachment B) and asked Council for a continuance to allow time in order to present "additional information to further corroborate that the premises has been doing business as a restaurant on both floors". The Council agreed to continue deliberation on the appeal. In continuing the matter the Council also asked that the Police Department provide information regarding calls for service related to The Parlor's operation. Soloman; Saltsman & Jamieson no longer represent the applicant/appellant and new separate legal counsel has been hired by both the applicant/appellant and operators of The Parlor. The attorneys representing the parties recently requested an additional continuance of the public hearing and, therefore, this matter was moved from a February to a March hearing date. Discussion As of the date of preparation of this staff report, no additional information has been submitted to staff by the applicant/appellant team. Therefore, this staff report will respond to the Supplemental Appeal Statemenf submitted on December 8, 2009 by the previous counsel. The appeal statement raises three main issues: The premises has been continuously licensed on both floors for the sale of alcohol since January 1982 before City requirements for a CUP and a CUP is not required since the premises has been used in the exact same manner since then; The current application was only submitted as a result of illegal threats to force closure of The Parlor and deprive the property owner of income; and • The City is estopped from requiring a CUP since licenses, permits and other authorizations have been issued that allow the sale of alcohol on both floors of the premises. 3 Premises has been continuously licensed on both floors for the sale of alcohol since January 1982 so a CUP is not required. The State of California Department of Alcohol Beverage Control (ABC) issued aType- 47 license to the premises in January 1982 prior to City requirements for a CUP which occurred in 1984. The Supplemental Appeal Statement in Exhibit 1 shows a diagram of the licensed premises submitted with .the original ABC license application. The applicant/appellant contends this information demonstrates the use of both the first and second floor "just as it is now". The Parlor currently has dining and bar areas on the first and second floors. However, the diagram shows dining, bar, stage and kitchen areas on the first floor only, with offices and wine storage on a portion of the second floor and apartment units on the remainder of the second floor. The 1998 ABC application for the transfer of the ABC license to the current property owner also contains the same floor plans (Attachment C). City staff visited the local ABC office and consulted with ABC staff on January 21, 2010. In reviewing the ABC records, City staff confirmed that the ABC license does not include dining or bar areas on the second floor. In fact, the original ABC application provides the following description of the use of premises: "Bottom floor will have dining room, stage, cocktail lounge and complete commercial kitchen. Second floor contains office, food/wine storage, plus living quarters for live-in employees. The living quarters are not to be licensed". The description also indicates a patron capacity of "approximately 130" (Attachment D). There are no ABC or City records that indicate that.. the second floor was ever authorized for additional dining or bar, areas. ABC staff indicated that additional review and approval is required by ABC for the premises as presently operated and also confirmed that the City had the authority to require local approvals for the expanded operation. As indicated in the December 8 2009 Council staff report, Santa Monica Municipal Code Section 9.04.10.18.020 requires existing alcohol outlets to obtain a CUP if there is a 10% or more floor area expansion or an increase of 25% or more in the number of 4 seats in any restaurant serving alcoholic beverages. The use of the second floor for dining and bar areas represents a 28% expansion in floor area and a 67% increase in the number of seats. Therefore, a CUP is required for use of the second floor for dining and bar areas. The current CUP application was only submitted as a result of illegal threats to force closure of The Parlor and deprive the property owner of income On October 23, 2007 the- owner of The. Parlor restaurant applied for an AD and business license as the operator of a new two-floor alcohol serving restaurant at the site of a former restaurant operation. The former restaurant, Cinch, had been in operation for approximately 25 years. During the staff review of the 2007 AD application, it was determined that the variance for off-street parking for the restaurant had expired and there were no City approvals for restaurant use of the existing second floor, which requires a CUP. The applicant was informed of the determination by a letter from City staff dated January 8, 2008 (Attachment E). The applicant indicated that he would supply information to the City to support his contention that the second floor was lawfully operated with dining and bar areas. A follow-up letter dated June 4, 2008 was sent to the operators of The Parlor by City staff as there had been no response to the previous letter (Attachment F). Attached to the letter were the appropriate application materials for CUP and Variance applications. On July 30, 2008 City staff again sent a letter to the operators of The Parlor requesting a response to the previous two letters (Attachment G). Finally, approximately ten months after the City's initial letter, a Compliance Order was issued to the applicant on October 7, 2008 indicating that a CUP and Variance were required for The Parlor's operation (Attachment M). The applicant finally submitted the appropriate applications to the City on November 11, 2008. 5 As indicated by the timeline above, City staff worked with the applicant for almost a year before a Compliance Order was issued. The Compliance Order was finally issued because no information had been forthcoming from the applicant with regard to his contention that the second floor was lawfully operating with dining and bar areas. The Compliance Order does not contain language threatening closure of the business and no correspondence has been sent since then to indicate as such. Therefore, the applicant/appellant's contention that the City threatened closure of the restaurant is erroneous. In fact, the applicantiappellant has been allowed to continue to operate the restaurant as currently configured during the pendency of this administrative process. The City is estopped from repuirinp a CUP since licenses aermits and other authorizations have been issued that allow the sale of alcohol on both floors of the premises. City staff reviews the planning entitlements for alcohol outlets, including restaurants, during the processing of business license applications (for changes in ownership) and the review of building permits for remodels and additions. City business license records indicate that the project site has been a restaurant from 1981 to the present, operating as Verdi's, then Cinch from 1982 to 2007, and currently as The Parlor. Therefore, City staff would not have reviewed the planning entitlements until 2007 when The Parlor applied for a business license.. In addition, there are no city records, nor any records provided by the applicant/appellant that indicate a building permit was ever issued for the remodel of the second floor to add dining and bar areas. Moreover, any claim of estoppels is not relevant to the. instant proceedings which are focused on the appropriateness of the requested permits. Finally, the Council requested that the Police Department provide information regarding calls for service related to The Parlor. From May 2007 to the present, there have been 183 calls for service related to activities associated with The Parlor. The majority of the calls were related to disturbing the peace (55), periodic checks by patrol officers in an 6 effort to increase police presence in the area (35) and valet related parking complaints (30). Of the 183 calls for service, 45 have been received since September 1, 2009. Of those 45 calls for service, 13 were related to valet parking complaints, 10 were complaints related to disturbing the peace and 8 were periodic checks conducted by patrol officers. The following table details the disposition of each call: DISPOSITION TOTAL NUMBER - Report 20 Advisal 27 Assist 2 Gone on Arrival 38 Unfounded 2 Checks Okay 40 Cite 12 Arrest 2 Other 15 Cancelled 15 Phone Report 2 File Only 5 Duplicate Calls 1 Staff reviewed the written crime reports, drop-off reports and citations associated with certain of these calls for service. These include several instances of alleged assaults between patrons of The Parlor and property theft within the establishment. Commission Action On September 16 2009, the Planning Commission conducted a public hearing for the proposed project. During the public testimony and in written correspondence, the Commission heard from nearby residential neighbors about repeated problems of noise from The Parlor operation and the behavior of patrons leaving the premises, including 7 excessive late night noise, profanities, drunkenness, urination, trash, and vandalism. Patron parking and vehicle traffic in the neighborhood were also cited as problems by the neighbors. As indicated in the September 16, 2009 meeting minutes and as reflected in the Statement of Official Action, the Commission found the adverse impacts of The Parlor's operation on the adjacent neighbors compelling. As such, in their approval of the CUP, the Commission included a list of conditions to mitigate the impacts. The conditions are listed in detail in the December 8, 2009 Council staff report. Appeal Analysis The detailed appeal analysis is included in the December 8 2009 Council staff report. Environmental Analysis The proposed project is exempt from the provisions of the California Environmental Quality Act (CEQA), pursuant to Section 15301 (Class 1), Existing Facilities, of the State Implementation Guidelines in that the project involves the permitting of a second floor space, within an existing building, for restaurant use with no increase in floor area to the building. 8 Public Outreach 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 and published in the Santa Monica Daily Press at least ten consecutive calendar days prior to the hearing. Financial Impacts & Budget Actions The proposed project has minor impacts on City revenues received from sales tax receipts associated with the restaurant operations. Prepared by: Paul Foley, Principal Planner Eileen P. Frty Director, PI nning a d C munity Development Attachments: Forwarded to Council: Rod Gould City Manager A. Draft Findings and Conditions B. Supplemental Appeal Statement C. 1998 ABC application for change of owner D. Original ABC application from 1981 E. January 7, 2008 letter to applicant F. June 4, 2008 letter to applicant G. July 30, 2008 letter to applicant H. Compliance Order issued October 7, 2008 I. Variance Application and Determination from 1980 9 Attachment A Draft City Council Findings and Conditions DRAFT FINDINGS & CONDITIONS CONDITIONAL USE PERMIT FINDINGS 1. The proposed use is one conditionally permitted within the subject district and complies with all of the applicable provisions of the "City of Santa Monica Comprehensive Land Use and Zoning Ordinance", in that SMMG Section 9.04.08.40.040 (a) provides that all uses listed as Conditionally Permitted Uses in the C2 or underlying District may be permitted subject to the approval of a Conditional Use Permit, and Section 9.04.10.18.020 provides that existing alcohol outlets shall also obtain a Conditional Use Permit if the use undergoes a substantial change in mode or character of operation such as an increase in of more than 10% in floor area or an increase of more than 25% of the number of seats. 2. The proposed use would not impair the integrity and character of the district in which it is to be established or located, in that the Boulevard Commercial (C6) with Neighborhood Overlay (N) district permits restaurants with more than 50 seats pursuant to the approval of a CUP. The proposed restaurant, as conditioned, would be consistent with and complementary to other uses in the area, and the site has been well-established as afood-serving use, operating as a restaurant with alcohol service since 1981. The Santa Monica Municipal Code allows conditions of approval to mitigate potential impacts associated with restaurants of this size. As detailed, conditions of approval have been added. to address operational concerns for the amount of alcohol sales, patron oversight via neighborhood patrols, prohibition of cover charges, and a requirement for alcohol service with food service. However, in light of public testimony at the public hearing and the written correspondence regarding the adverse impacts on the neighborhood from the expanded restaurant's operation, including excessive noise associated with the establishment, unruly behavior of patrons leaving the restaurant and parking and traffic issues, the City Council, on appeal, found that the originally proposed restaurant would impair the integrity and character of the district as proposed by the applicant with 225 seats, operating hours from 11:30 am to 2:00 am daily, valet parking available only between 5:00 pm and closing daily, and the inclusion of numerous video games and amusements in the establishment. To address 9 these undesirable late night activities, and parking and traffic impacts, the City Council, on appeal, imposed conditions of approval to address the ongoing neighborhood concerns. Specifically, Condition #2 requires the restaurant to close at 11:00 pm Sunday through Thursday nights and 12:00 am Friday and Saturday nights and Condition #4 limits the total number of seats to 135. Condition #17 requires a minimum of six security personnel on-site between 9:00 pm and closing daily. Condition #23 limits the number of video games and amusements to three. Condition #29 requires valet parking during all restaurant hours of operation and Condition # 39 sets forth a condition that requires the applicant to submit a report to the City addressing compliance with permit conditions within 90-days of permit approval which shall be reviewed by the Planning Commission at a noticed public hearing. 3. The subject parcel is physically suitable for the type of land use being proposed, in that the building was constructed as a two-story structure and has operated as a restaurant since 1981 with no on-site vehicular access or parking. 4. The proposed use is compatible with any of the land uses presently on the subject parcel if the present land uses are to remain, in that the site currently operates as a restaurant with more than. 50 seats and that use has been in continuous operation since 1981. However, given the fundamental change in the nature of the restaurant operation from the previous restaurant, conditions of approval further ensure that the restaurant operates in a harmonious manner with the other land uses, by restricting operating hours, regulating trash dumping and delivery hours. 5. The proposed use would 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 the Zoning Ordinance conditionally permits restaurants in the neighborhood overlay district. Afull-service restaurant on Wilshire Boulevard is compatible with permitted uses and other existing restaurant and commercial uses in the area. The conditions of approval will ensure that the use operates in a harmonious manner with the adjacent land uses and will not create any alcohol-related problems in the area. However, in light of public testimony at the public hearing and the written correspondence regarding the adverse impacts on the neighborhood from the expanded restaurant's operation, including excessive noise associated with the establishment, unruly behavior of patrons leaving the restaurant and parking and traffic issues, the City Council, on appeal, found that the originally proposed restaurant would not be compatible with existing and permissible land uses within the district and the general area as proposed by the applicant with 225 seats, operating hours from 11:30 am to 2:00 am daily, valet parking available only 10 between 5:00 pm and closing daily, and the inclusion of numerous video games and amusements in the establishment. To address these undesirable late night activities, and parking .and traffic impacts, the City Council, on appeal, imposed conditions of approval to address the ongoing neighborhood concerns. Specifically, Condition #2 requires the restaurant to close at 11:00 pm Sunday through Thursday nights and 12:00 am Friday and Saturday nights and Condition #4 limits the total number of seats to 135. Condition #17 requires a minimum of six security personnel on-site between 9:00 pm and closing daily. Condition #23 limits the number of video games and amusements to three. Condition #29 requires valet parking during all restaurant hours of operation and Condition # 39 sets forth a condition that requires the applicant to submit a report to the City addressing compliance with permit conditions within 90-days of permit approval which shall be reviewed by the Planning Commission at a noticed public hearing. 6. There are adequate provisions. for water, sanitation, and public utilities and services to ensure that the proposed use would not be detrimental to public health and safety, in that in that the site is located in an urbanized area adequately served by existing infrastructure. 7. Public access to the proposed use will be adequate, in that the valet service, as conditioned, will operate auto drop-off and pick-up from Wilshire Boulevard, (an arterial street) and in addition pedestrian access is via Wilshire Boulevard. 8. The physical location or placement of the use on the site is compatible with and relates harmoniously to the surrounding neighborhood, in that in that the restaurant use has been located at the site since 1981. The expansion of the full- service restaurant, as approved under this CUP, will provide a floor plan and operational conditions for the restaurant use which currently do not exist. In addition, the Land Use Element of the General Plan specifically encourages day and night pedestrian activity along Wilshire Boulevard by establishing uses oriented to walk-in traffic such as restaurants. 9. The proposed use is consistent with the goals, objectives, and policies of the General Plan, in that Land Use Element Objective 1.6 calls for commercial uses which serve regional, community and local needs along the City's commercial corridors while respecting the adjacent residential neighborhoods. Through the incorporation of the conditions of approval, the project is also consistent with Policy 1.7, which calls for the protection and expansion of uses within the neighborhood commercial areas of the City that provide for the day-to-day shopping and service needs of nearby residents and Land Use Element Policy 1.7.2 which calls for preserving the concentration of ground-level, street-front neighborhood commercial uses on Wilshire Boulevard from 12th to 16th Streets. 11 10. The proposed use would not be detrimental to the public interest, health, safety, conveniehce, or general welfare, in that the proposed use, as conditioned, is consistent with the Zoning Ordinance and the Land Use Element of the General Plan, and alcohol specific conditions have been added to mitigate any potential adverse impacts. However, in light of public testimony at the public hearing and the written correspondence regarding the adverse impacts on the neighborhood from the restaurant's operation, including excessive noise associated with the establishment, unruly behavior of patrons leaving the restaurant and parking and traffic issues, the City Council, on appeal, found that the originally proposed restaurant would be detrimental to the public interest, health, safety, convenience, or general welfare as proposed by the applicant with 225 seats, operating hours from 11:30 am to 2:00 am daily, valet parking available only between 5:00 pm and closing daily, and the inclusion of numerous video games and amusements in the establishment. To address these undesirable late night activities, and parking and traffic impacts, the City Council, on appeal, imposed conditions of approval to address the ongoing neighborhood concerns. Specifically, Condition #2 requires the restaurant to close at 11:00 pm Sunday through Thursday nights and 12:00 am Friday and Saturday nights and Condition #4 limits the total number of seats to 135. Condition #17 requires a minimum of six security personnel on-site between 9:00 pm and closing daily. Condition #23 limits the number of video games and amusements to three. Condition #29 requires valet parking during all restaurant hours of operation and Condition # 39 sets forth a condition that requires the applicant to submit a report to the City addressing compliance with permit conditions within 90-days of permit approval which shall be reviewed by the Planning Commission at a noticed public hearing. 11. The proposed use conforms precisely to the applicable performance standards contained in Subchapter 9.04.12 and special conditions outlined in Subchapter 9.04.14 of the City of Santa Monica Comprehensive Land Use and Zoning Ordinance, in that a performance standards permit is not required for the proposed use. 12: The proposed use will not result in an over concentration of such uses in the immediate vicinity, in that there are two Type-41 public eating places within a 500-foot radius, which is not considered an over concentration for a commercial corridor such as Wilshire Boulevard. The proposed alcohol license will be for a full-service restaurant which is located in a district that encourages commercial, regional and neighborhood serving uses and activities.-The general vicinity is frequented by large numbers of local residents as well as hospital workers, shoppers, and visitors from outside the City. This site has historically operated as a restaurant with more than 50 seats, and it is anticipated that the incorporation of various conditions of approval will minimize impacts and intrusions into any 12 adjacent residential neighborhoods. The proposed use will not contribute to an undue concentration of alcohol outlets in the area in that .the proposed the proposed project is an expansion of an existing restaurant with aType-47 alcohol license so no new alcohol licenses results from the project. ALCOHOL OUTLET FINDINGS 1. The proposed use, as conditioned, will not adversely affect the welfare of neighborhood residents in a significant manner in that the existing use has been in operation since 1981 as a restaurant that serves alcoholic beverages. The State Alcohol Beverage Control (ABC) issued a Type 47-alcohol license for the restaurant's change of ownership in 2007. Alcohol sales will be ancillary to the primary restaurant use. Conditions of approval have been added to mitigate potential impacts associated with alcohol consumption. However, in light of public testimony at the public hearing and the written correspondence regarding the adverse impacts on the neighborhood from the restaurant's operation, including excessive noise associated with the establishment, unruly behavior of patrons leaving the restaurant and parking and traffic issues, the City Council, on appeal, found that the originally proposed restaurant would adversely affect the welfare of the neighborhood residents in a significant manner as proposed by the applicant with 225 seats, operating hours from 11:30 am to 2:00 am daily, valet parking available only between 5:00 pm and closing daily,-and the inclusion of numerous video games and amusements in the establishment. To address these undesirable late night activities, and parking and traffic impacts, the City Council, on appeal, imposed conditions of approval to address the ongoing neighborhood concerns. Specifically, Condition #2 requires the restaurant to close at 11:00 pm Sunday through Thursday nights and 12:00 am Friday and Saturday nights and Condition #4 limits the total number of seats to 135. Condition #17 requires a minimum of six security personnel on-site between. 9:00 pm and closing daily. Condition #23 limits the number of video games and amusements to three. Condition #29 requires valet parking during all restaurant hours of operation and Condition # 39 sets forth a condition that requires the applicant to submit a report to the City addressing compliance with permit conditions within 90-days of permit approval which shall be reviewed by the Planning Commission at a noticed public hearing. 2. The proposed use will not contribute to an undue concentration of alcohol outlets in the area in that the proposed the proposed project is an expansion of an existing restaurant with aType-47 alcohol license so no new alcohol licenses results from the project. 3. The proposed use will not detrimentally affect nearby neighborhoods considering the distance of the alcohol outlet to residential buildings, churches, schools, 13 hospitals, playgrounds, parks, in that there are no nearby churches, schools, hospitals or playgrounds and the conditions for approval, such as the hours of operation and compliance with the provisions of the Noise Ordinance, will minimize the potential affect on residential uses in the vicinity. The Community and Cultural Services Department has reviewed the project and has indicated no comments or objections to the proposal. However, in light of public testimony at the public hearing and the written correspondence regarding the adverse impacts on the neighborhood from the restaurant's operation, including excessive noise associated with the establishment, unruly behavior of patrons leaving the restaurant and parking and traffic issues, the City Council, on appeal, found that the proposed restaurant would detrimentally affect nearby neighborhoods considering the distance of the restaurant to residential buildings as proposed by the applicant with 225 seats, operating hours from 11:30 am to 2:00 am daily, valet parking available only between 5:00 pm and closing daily, and the inclusion of numerous video games and amusements in the establishment. To address these undesirable late night activities, 'and parking and traffic impacts, the City Council, on appeal, imposed conditions of approval to address the ongoing neighborhood concerns. Specifically, Condition #2 requires the restaurant to close at 11:00 pm Sunday through Thursday nights and 12:00 am Friday and Saturday nights and Condition #4 limits the total number of seats to 135. Condition #17 requires a minimum of six security personnel on-site between 9:00 pm and closing daily. Condition #23 limits the number of video games and amusements to three. Condition #29 requires valet parking during all restaurant hours of operation and Condition # 39 sets forth a condition that requires the applicant to submit a report to the City addressing compliance with permit conditions within 90-days of permit approval which shall be reviewed by the Planning Commission at a noticed public hearing. 4. The proposed use is compatible with existing and potential uses within the general area in that the Zoning Ordinance conditionally permits restaurants permitting alcoholic beverages. Afull-service restaurant with ancillary alcohol service on Wilshire Boulevard is compatible with permitted uses and other existing restaurant and commercial uses in the area. To address the fundamental change in the nature of the restaurant operation from the previous restaurant uses, conditions of approval will ensure that the use operates in a harmonious manner with the adjacent land uses and will not create any alcohol-related problems in the area. 5. Traffic and parking congestion will not result from the proposed use in that the applicant proposes a valet parking program that will met the current demand generated by the proposed restaurant at a nearby location. Further; after considering public testimony expressing significant concerns regarding patron parking in the neighborhood and associated noise impacts, the Planning Commission added Condition #27 which establishes a $2 maximum charge for 14 the valet parking to ensure broad use of the off-site parking facility and Condition #29 to ensure that valet parking is available during all restaurant operating hours. It is also anticipated that customers will visit the proposed restaurant in addition to other destinations in the area and utilize transit or nearby public parking facilities, such as City Parking Lot 8, just behind the existing restaurant. 6. The public health, safety, and general welfare are protected in that the project is consistent with the provisions of the Zoning Ordinance, and the Land Use Element of the General Plan, which encourage pedestrian oriented uses such as restaurants along Neighborhood overlay zone of Wilshire Boulevard .and conditions of approval have been incorporated to minimize adverse impacts on nearby land uses. 7. No harm to adjacent properties will result in that the conditions of approval with this approved Conditional Use Permit will ensure that the establishment operates in a manner which protects adjacent neighbors, whereas the current restaurant has no such conditions. 8. The proposed use is consistent with the goals, objectives, and policies of the General Plan, in that Land Use Element Objective 1.6 calls for commercial uses which serve regional, community and local needs along the City's. commercial corridors while respecting the adjacent residential neighborhoods. Through the incorporation of the conditions of approval, the project is also consistent with Policy 1.7, which calls for the protection and. expansion of uses within the neighborhood commercial areas of the City that provide for the day-to-day shopping and service needs of nearby residents and Land Use Element Policy 1.7.2 which calls for preserving the concentration of ground-level, street-front neighborhood commercial uses on Wilshire Boulevard from 12th to 16th Streets. VARIANCE FINDINGS 1. There are special circumstances or exceptional characteristics 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. Specifically, the site is improved with an existing two-story commercial building with no space available for on-site parking. In 1981 a restaurant use with alcohol service was authorized with the approval of a parking variance (ZA #4321-y) and the use has been in continuous operation since that time. 2. The granting of such variance will not be detrimental nor injurious to the property or improvements in the general vicinity and district in which the property is located in that the proposed valet program will meet the parking demand generated by the proposed restaurant. Further, after considering public testimony expressing significant concerns regarding patron parking in the neighborhood 15 and associated noise impacts, the City Council, on appeal, added Condition #27 which establishes a $2 maximum charge for the valet parking to ensure broad use of the off-site parking facility and Condition #29 to ensure that valet parking is available during all restaurant operating hours. It is also anticipated that the parking demand will be further reduced since patrons will visit the proposed restaurant in addition to other destinations along the Wilshire Boulevard corridor, given the character of the area as both a neighborhood and regional destination for those using the UCLA Santa Monica Hospital across the street. Consequently, both transit or nearby public parking facilities within the Boulevard Commercial District will be utilized to support patron transportation needs. City Public Parking Lot 8, in fact, is located behind the subject property and includes 23 metered parking spaces that can accommodate customer who wish to self park. Condition #29 requires the restaurant operator to provide an annual report to the City's Planning Division or Transportation Management Division, which provides documentation of a lease agreement for at least 48 off-site parking spaces, a valet service agreement and permits via the City, and additional information such as quantifiable data associated with the ongoing demand and management of the off-site parking and any efforts by the applicant to provide transportation demand management for their employees to reduce the demand for parking. 3. The strict application of the provisions of this Chapter would result in practical difficulties or unnecessary hardships, not including economic difficulties or economic hardships in that there is no on-site parking spaces and the parking variance, with specific conditions including the provision of off-site parking during all operational hours, would allow the continued use of the restaurant at the site, given the use has not ceased operations and denial of the variance would require the closure of the existing restaurant. 4. The granting of a variance will not be contrary to or in conflict with the general purposes and intent of this Chapter, nor to the goals, objectives, and policies of the General Plan. Objective 1.6 which calls for commercial uses which serve regional, community and local needs along the City's commercial corridors while respecting the adjacent residential neighborhoods. Additionally, the proposed project is consistent with Land Use Element Objective 1.7 which calls for the protection and expansion of uses within the neighborhood commercial areas of the City that provide for the day-to-day shopping and service needs of nearby residents and Policy 1.7.2 which calls for preserving the concentration of ground- level, street-front neighborhood commercial uses on Wilshire Boulevard from 12th to 16th Streets. Circulation Element Policy 4.75 allows the reduction in parking requirements for ..."existing" development in accordance with approved transportation control measures which have been demonstrated to be effective in reducing parking 16 needs and which are monitored and enforced by the City Policies 5. The variance would not impair the integrity and character of the district in which it is to be located in that the restaurant-has been in operation without on-site parking since 1981 and the proposed valet program will encourage patrons and employees to take advantage of the off-site parking available via a valet operator. In addition, the lack of on-site parking will promote alternate modes of transit to the site, thereby reducing the amount of vehicular trips and parking demand within the area. The transportation demand plan will help increase the use of public transit and bicycles, supporting the pedestrian character of the district. To ensure the reduction of restaurant parking demand, staff has included condition of approval regarding the valet operation (Condition No. 29). 6. The subject site is physically suitable for the proposed variance in that the site is improved with an existing two-story commercial building that has been operated as a restaurant since 1981. 7. There are adequate provisions for water, sanitation, and public utilities and services to ensure that the proposed variance would not be detrimental to public health and safety in that the subject property is located within a developed urbanized environment that is adequately served by existing infrastructure, public utilities and services. It is not anticipated that approval of the subject application will create a need for additional utilities or services. 8. There will be adequate provisions for public access to serve the subject variance proposal in that in that although there is no vehicular access provided directly onto the site and no on-site parking available, the project site is served by Wilshire Boulevard which provides pedestrian access to the site. In addition, the area is served by the Big Blue Bus. 9. For the reduction of the automobile parking space requirements, the reduction is based and conditioned upon an approved parking reduction plan that incorporates transportation control measures that have been demonstrated to be effective in reducing parking needs and that are monitored, periodically reviewed for continued effectiveness, and enforced by the City. Specifically, Condition No. 28 requires that the proposed Transportation Demand Management program be implemented to reduce the parking demand and the amount of vehicular trips within the area generated by the proposed restaurant. The program may provide incentives for both employee and customers to use alternate modes of transportation other than private vehicle to the restaurant, including free transit passes for employees and complementary- meals to customers. This requirement is intended to limit the potential impacts that restaurants have on nearby residential neighborhoods, including the associated parking and circulation effects. Therefore, this requirement acts as a transportation control 17 measure in that it limits traffic-generating uses that may negatively affect nearby residents and the district. 10. The strict application of the provisions of this Chapter would result in unreasonable deprivation of the use or enjoyment of the property in that due to the existing improvements, practical use or enjoyment of the subject parcel would not be possible due to the inability to provide the additional parking spaces required by code on-site for a parcel that has no on-site parking. The existing restaurant has been in operation since 1981 and is a compatible use within the district. CONDITIONS OF APPROVAL: PLANNING AND COMMUNITY DEVELOPMENT Project Specific Conditions 1. This approval is for a Type 47 (On Sale General -Eating Place) alcohol license only. Any request to modify the license type shall require approval from the Planning Commission. 2. The permitted restaurant hours open for business to the public shall be from 11:00 AM to 11:00 PM Sunday through Thursday; 11:00 AM to 12:00 AM (Midnight) Friday and Saturday with last call for alcoholic beverages one hour prior to closure. Complete closure and all employees must vacate the premises from one hour after closing, daily. No after hours operation shall be permitted. 3. No exterior activity such as trash disposal, deliveries or other maintenance activity generating noise audible from the exterior of the building shall occur from one hour after closing to 6:00 AM. In addition, there shall be no disposal of bottles or noise generating trash between 11:00 PM and 6:00 AM daily. Trash containers shall be secured with locks. 4. Seating arrangements for sit-down patrons throughout the first and second floors shall not exceed 135 total seats. 5. No more than 35% of total gross revenues per year shall be from alcohol sales. The operator shall maintain records of gross revenue sources which shall be submitted annually to the City of Santa Monica City Planning Division at the beginning of the calendar year and also available to the City of Santa Monica and the State ABC upon request. 18 Alcohol Outlet Conditions 6. The primary use of the premises shall be for sit-down meal service to patrons. Alcohol shall not be served to persons except those intending to purchase meals. 7. The applicant shall patrol the neighborhood to monitor patron behavior and pick up any trash left behind by patrons. The route the staff patrols and the frequency of the patrols shall be approved by the City's Planning Division and maintained as part of the site operational plan until such time as the City may deem the patrols unnecessary. 8. No alcoholic beverage shall be sold for consumption beyond the premises. 9. The establishment shall maintain a kitchen or food-serving area in which a variety of food is prepared and cooked on the premises. 10. The establishment shall serve food to patrons during all hours the establishment is open for customers. 11. Customers shall be permitted to order meals at the bar areas at all times the bar or restaurant is open for business. 12. In order to maintain the primary use of the premises for sit-down meal service, patrons shall not be permitted to use the bar unless they are ordering a meal at the bar counter in the same manner as patrons ordering meals at the table seating. The seats located around the bar service area cannot be used as waiting area or as a bar where patrons may have a drink either before being seated for meal service, or as a bar where beverages only are provided. 13. A building permit shall be obtained to remove the doors leading to the 2nd floor roof deck, or these doors shall be made into a window so that patrons access to the roof would not occur. In addition, subject to review by the Architectural Review Board (ARB) or staff ARB approval if applicable, a building permit shall be obtained to close the open air portion of the 2"d floor veranda that faces Wilshire Boulevard with double pane window glass or another suitable architectural treatment that would lessen the noise emanating from the premises. 14. Any minimum purchase requirement may be satisfied by the purchase of beverages or food. 15. Take out service shall be only incidental to the primary sit-down use. 19 16. The operation shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of lights, noise, activities, parking or other actions. 17. The owner shall control noisy patrons leaving the restaurant. A minimum of six security guards shall be provided seven days a week from 9 p.m. to closing to ensure that noisy and rowdy patrons leaving the establishment will not adversely affect the welfare of neighborhood residents. 18. Prior to final inspection or commencement of alcohol service, a security plan shall be submitted to the Chief of Police for review and approval. The plan shall address both physical and operational security issues. 19. Prior to final inspection, commencement of alcohol service, or within 30 days of the CUP approval, the operator shall submit a plan for approval by the Director of Planning and Community Development regarding employee alcohol awareness training programs and policies. The plan shall outline a mandatory alcohol awareness training program for all employees having contact with the public and shall state management's policies addressing alcohol consumption and inebriation. The program shall require all employees having contact with the public to complete a California Department of Alcoholic Beverage Control (ABC) sponsored alcohol awareness training program within 90 days of the effective date of this approval. In the case of new employees, the employee shall attend the alcohol awareness training within 90 days of hiring. In the event the ABC no longer sponsors an alcohol awareness training program, all employees having contact with the public shall complete an alternative program approved by the Director of Planning and Community Development. The operator shall provide the City with an annual report regarding compliance with this condition. This project shall be subject to any future City-wide alcohol awareness training program condition affecting similar establishments. 20. Prior to final inspection or commencement of alcohol service or issuance of a business license, the operator shall submit a plan describing the establishment's "designated driver" program, which shall be offered by the operator to the establishment's patrons. The plan shall specify how the operator will inform patrons of the program, such as offering on the menu a free non-alcoholic drink for every party of two or more ordering alcoholic beverages. 21. Except for special events, alcohol shall not be served in any disposable container such as disposable plastic or paper cups. 22. No dancing, dance floor, or live entertainment beyond that allowed in the restaurant definition contained in the Zoning Ordinance shall be permitted on the premises. There shall be no cover charge or related minimum drink purchase requirement. 20 23. The establishment shall not operate as a game arcade per Santa Monica Municipal Code Section 9.04.02.030.325 (Game Arcade). A maximum of three games, video games or other amusements are permitted under this definition on the premises. 24. Window or other signage visible from the public right-of-way that advertises beer or alcohol shall not be permitted. 25. Applicant is on notice that all temporary signage is subject to the restrictions of the City sign ordinance. 26. The project shall at all times comply with the provisions of the Noise Ordinance (SMMC Chapter 4.12). Parking Variance Conditions 27. The maximum charge to valet a vehicle for customers is $2 dollars. 28. The applicant shall work with the City's Transportation Management Division to create a specific transportation demand management program for the employees of the restaurant. The goal of this management program is to reduce the employees Average Rider Vehicle (ARV) trips to and from their place of work. 29. The restaurant operator shall provide an annual report due October 1S` of each year to the City's Planning Division or Transportation Management Division, which provides documentation of a lease agreement for at least 48 off-site parking spaces during all operational hours, a valet service agreement during all operating hours and approved valet permits issued by the City, and additional information such as quantifiable data associated with the ongoing demand and management of the off-site parking and any efforts by the applicant to provide a transportation demand management program for their employees to reduce the demand for parking. The transportation demand management program may include the following Transportation Information. The applicant will provide on-site information for employees and customers about transit services (including ride share programs and shuttles) and bicycle facilities (including routes and parking). Free Transit Passes for Employees. The applicant will provide all of its employees who commit to transit use each month an EZ Transit Pass through the Santa Monica Big Blue Bus or Metro program (or a similar bus pass if the EZ Transit Pass is no longer available). 21 • The applicant will provide bicycles to all employees who commit to riding to work on a regular basis, and will provide bicycle parking/storage on-site. • The applicant will provide a cash incentive to employees who carpool to work on a regular basis in an amount equal to a monthly transit pass. • The applicant will encourage customers to use public transit, bicycles, or walk to the restaurant through various incentives, including conducting a weekly drawing to offer a complementary meal for those individuals that use such alternate modes of transit to the restaurant (random selection from names collected), or through incentives of similar effectiveness as may be designed and implemented periodically. 30. The valet operator shall at all times conduct the vehicle transport services between the site and the off-site parking lease area in a manner that protects the adjacent neighbors from nuisance, including excessive noise, and adherence to the rules and conditions of the City's approved valet permit. The valet service shall operate daily from the restaurant's opening to closing, and all day Saturday and Sunday during operation hours. The valet parking operation shall be subject to the review and approval of the Transportation. Management Division (TMD). 31. The Santa Monica Building and Safety Division and Fire Department (SMFD) shall review the restaurant's occupancy load to ensure compliance with existing Codes. 32. The applicant authorizes the reasonable City inspection of the property to ensure compliance with the conditions of approval imposed by the City in approving this project and will bear the reasonable cost of these inspections as established by Santa Monica Municipal Code Section 2.72.010 and Resolution No. 9905(CCS) or any successor legislation thereto. These inspections shall be no more intrusive than necessary to ensure compliance with conditions of approval. Administrative 33. The approval of this permit shall expire if the rights granted are not exercised within twelve (12) months. from the permit's effective date. Exercise of rights shall mean actual commencement of the use granted by the permit. One six month extension may be permitted if approved by the Director of Planning. Applicant is on notice that time extensions shall not be granted if development standards or development process relevant to the project have changed since project approval. Additionally, the rights associated with this approval shall expire if the establishment ceases operation for a period of one year or longer. 22 34. Within ten days of City Planning Division transmittal of the Statement of Official Action, project applicant shall sign and return a copy of the Statement of Official Action prepared by the Planning Division, agreeing to the conditions of approval and acknowledging that failure to comply with such conditions shall constitute grounds for potential revocation of the permit approval. By signing same, applicant shall not thereby waive any legal rights applicant may possess regarding said conditions. The signed Statement shall be returned to the Planning Division. Failure to comply with this condition shall constitute grounds for potential permit revocation. 35. Within thirty (30) days after final approval of the project, a sign shall be posted on site stating the date and nature of the approval. The sign shall be posted in accordance with the Zoning Administrator guidelines and shall remain in place until a building permit is issued for the project. The sign shall be removed promptly when a building permit is issued for the project. 36. Prior to final inspection, the applicant shall post a notice at the building entry stating that the site is regulated by a Conditional Use Permit and the Statement of Official Action, which includes the establishment's conditions of approval, is available upon request.. This notice shall remain posted at all times the establishment is in operation. 37. Within thirty (30) days from date of the approval of the Statement of Official Action, the applicant shall provide a copy of the approved Statement of Official Action for. this project to the local office of the State Alcoholic Beverage Control department. 38. 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. Conformance with Approved Plans 39. The applicant shall provide within 90-days of the effective date of the Conditional Use Permit and Variance, a detailed report to staff on compliance with the operational conditions of these permits. -This report shall be evaluated by staff, and subsequently presented to the Planning Commission at a noticed public hearing who may subsequently re-evaluate and amend the conditions of approval. 40. This approval is for those plans dated April, 2009, a copy of which shall be maintained in the files of the City Planning Division. Project development shall 23 be consistent with such plans, except as otherwise specified in these conditions of approval 41. Minor amendments to the plans shall be subject to approval by the Director of Planning. An increase of more than 10% of the square footage, and increase of seating, or a significant change in the approved concept shall be subject to Planning Commission Review. Construction shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board, or Director of Planning. No expansion in number of seats, intensity of operation, or outdoor areas shall occur without prior approval from the City of Santa Monica and State ABC. 42. The Plans shall comply with all other provisions of Article IX of the Municipal Code, (Zoning. Ordinance) and all other pertinent ordinances and General Plan policies of the City of Santa Monica. Standard Conditions 43. Final approval of any mechanical equipment installation will require a noise test in compliance with SMMC Section 4.12.040. Equipment for the test shall be provided by the owner or contractor and the test shall be conducted by the owner or contractor. A copy of the noise test results on mechanical equipment shall be submitted to the Community Noise Officer for review to ensure that noise levels do not exceed maximum allowable levels for the applicable noise zone. 24 Attachment B Supplemental Appeal Statement Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 25 LAW OFFICES OF - 77 SOLOMON, SALTSMAN & JAMIES~;n`Y ~~ SANTA MONICd A Partnership Including Professional Corporatlons LL~III 426CULVERBOULEVARD ~,~ _~, n,,,.,~ PLAYA DEL REY, CA 90293 9 ~'-„:1, ~_ (310)822-9848 FAX (310) 822-3512 December 8, 2009 via Hand Delivery Honorable City Council of City of Santa Monica City of Santa Monica 1685 Main Street, Room 209 Santa Monica, California 90401 RE: SUPPLEMENTAL APPEAL STATEMENT FOR APPEAL N0.09APP-012 SUBMITTED BY APPELLANT To the Honorable Mayor, Mayor Pro Tempore, Councilmembers, and City of Santa Monica: Appellant does hereby submit its Supplemental Appeal Statements, and requests this be considered and made part of the administrative record, as follows: Appellant is the property owner for the premises located at 1519 Wilshire Blvd. in Santa Monica, Califomia (hereinafter the "Premises"), and has owned and operated this premises for almost 15 years. The Premises is currently operated by Superior Dining, LLC (hereinafter the "Operator") as the Parlor restaurant. The Operator is the Lessee in a long term written Lease with the Appellant that has eighteen yeazs remaining, and is the only Lessee in this single purpose free standing building at this premises. This Lease is the only source of income generated by this building-premises for the Appellant. This stream of income to the Appellant is valued in excess of $5,000,000.00, and the value of the premises itself is in excess of an additional $5,000,000.00. The actions of the Planning Commission, and the actions of this City Council if it affirms the Planning Commission decision, illegally eviscerates the value of this premises. The Appellant and the Operator have at all times obtained and maintained an ABC License issued by the State of California necessary to sell alcohol, as well as business licenses and ' As Appellant, 1519 Wilshire Blvd LP, expressly reserved its right to file this Supplemental Appeal in its original Appeal Form submitted on September 16, 20009 and as stated would occur in the City Council Staff Report created for this matter, Appellant does hereby submit its supplemental Appeal Statement for Appeal No. 09APP-012. Additionally, the City Council is permitted by Santa Monica Municipal Code §9.04.20.24.010(c) to make its decision for any reason "in the purview of the original hearing body on the application or project and is not limited to only the original reason stated for the appeal," and therefore this Supplemental Appeal Statement will assist the City Council in understanding all factual and legal issues present by this Appeal, and must be made a part of the Administrative Record. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 2 of 12 occupancy permits from the City of Santa Monica, and health department approvals from the County, as well as many other necessary governmental licenses and permits. The City's actions and omissions in this matter, both by requiring an application for a Conditional Use Permit in the first place, and by conducting heazings and issuing decisions in an arbitrary and capricious manner, violate Appellant's and the Operator's Constitutionally protected vested property rights and rights to due process of law. Appellant and the Operator possess a constitutionally protected, vested property right to sell alcoholic beverages and otherwise conduct business on both floors of the premises and therefore cannot legally be required to obtain a conditional use permit or any form of permission from the City of Santa Monica in order to sell alcoholic beverages on either floor of the Premises. Ca. Business & Professions Code §237902. Since at least January 4, 1982, the Premises has been continuously licensed on both floors that are currently being used for. the sale of alcoholic beverages. The City of Santa Monica did not have any requirement in its Municipal Code or otherwise that required a Conditional Use Permit ("CUP") until December 1984. Thus, this premises was used in the exact same manner as it is today for at least three (3} years before the City enacted any requirement for such a business to obtain a CUP. Therefore, California Business & Professions Code §23790, as well as Korean American Legal Advocacy Foundation v. City of Los Angeles, (1994) 23 Ca1.App.4th 376, 394- 98, prohibits the City of Santa Monica from now requiring Appellant and/or the Operator from applying for a CUP in order for the Operator to continue to sell alcoholic beverages on the same floors and in the same manner as it now does, and has always done business since 1982. To now illegally require a CUP under these circumstances violates constitutionally protected vested property rights and rights to due process of law. Appellant has obtained from the State of California Department of Alcoholic Beverage Control (hereinafter the "ABC") certified documents related to the Type-47 ABC License first obtained in January 1982. The certified copy of the State-required Diagram of the Licensed Premises (ABC-257 Form), submitted in 1981 to the State of California Department of ABC, cleazly shows that the Licensed Premises at that time (just as it is now) includes both the first and second floors of the premises (a true and accurate certified copy of this ABC-257 Form is attached hereto as Exhibit 1 and incorporated herein by this reference). 2 California Business and Professions Code §23790 states in pertinent part as follows "Premises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation under the following conditions: (a) The premises retain the same type of retail liquor license within a license classification. (b) The licensed premises are operated continuously without substantial change in mode or chazacter of operation." Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 3 of 12 Appellant has reason therefore to believe, and thus is currently attempting to obtain in order to present to the City, additional documentation to further corroborate that the Premises has been doing business as a restaurant on both floors since well before December 1984; (December 1984 being when the City began requiring conditional use permits to sell alcoholic beverages). Appellant has thus submitted Discovery Requests/Public Records Act Requests3 to the following governmental agencies: City of Santa Monica Planning & Community Development Department; City of Santa Monica Department of Building and Safety; City of Santa Monica Police Department; City of Santa Monica Fire Department, City of Santa Monica Revenue Division, License Office; State of California Department of Alcoholic Beverage Control, and the Los Angeles County Health Department. In order to allow sufficient time to obtain documents Appellant believes in good faith do exist, and to present them in adequate form to the City of Santa Monica, the Appellant submitted a request, and does hereby re-confirm its request, that a continuance of this proceeding presently pending before the City Council be granted. A true and correct copy of that earlier sepazate request is attached hereto as Exhibit 2. The current application to the City was only submitted as a result of illegal threats by the City of Santa Monica to force closure of the business of the Parlor, and thus eviscerate the value of the premises and the income stream to Appellant, if Appellant and/or the Operator did not file a Conditional Use Permit application. Due to the substantial economic damage that would occur if the business was closed and because of the City's threat of criminal, civil and/or administrative prosecution, Appellant, under duress caused by this unlawful coercion by the City of Santa Monica, submitted its application for a Conditional Use Permit, and did not then, and does not now, waive its constitutional vested rights. Because the Appellant already enjoyed the Constitutionally protected property rights vested prior to December 1984, however, the City had and has no legal right to require a CUP, and the City's efforts to impose conditions at this time through the governmental tool of a CUP is akin to revocation of this legally existing "grandfathered" right, and thus illegal. Under these circumstances the City of Santa Monica is actually attempting therefore to revoke the Appellant and the Operator's constitutionally protected vested property rights. In such circumstances the City of Santa Monica bears the burden of proof to prove a public nuisance, which the City does not allege, cannot here prove, and for which no constitutionally required "notice" has been given ' Under the California Public Records Act, an agency must provide a response within 10 days of receipt of the request as to whether it requests disclosable documents. Government Code &6253(cl. The agency is permitted to extend that 10-day deadline by an additional 14 days. Government Code §6253(c). There is no express deadline as to when the deadline need be produced but Government Code §6258 does provide an enforcement mechanism through the superior court if an agency Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 4 of 12 therefore. It is not Appellant's burden of proof to prove there is no nuisance and no reason for revocation. In addition to its contention that no CUP is required, and without waiving said argument and contention that no application should have been required et al. as explained in more detail above and in oral argument at hearing, Appellant appeals solely the Planning Commission's unlawful September 16, 2009 decision concerning the Conditional Use Permit Case No. 08CUP015 and Conditions numbers 1 through 26 and all other Conditions related to the CUP, if any, which include, but are not limited to, the hours limitation imposed in Condition Number 2 limiting the hours of operation from 11:00 a.m. to 11:00 p.m. Sunday through Thursday; 11:00 a.m, to 12:00 a.m. Friday and Saturday and the reduction of the seating capacity to 135 seats set forth in Condition Number 4. Appellant does not appeal the Planning Commission's September 16, 2009 decision to grant a Pazking Vaziance for the Vaziance Case No. 08-021 or Condition numbers 27 through 32 or any other Condition related to the Variance. Appellant expressly agrees with and supports the Findings in the Statement of Official Action that support the Planning Commission's grant of a Variance. To any extent the City Council or the City of Santa Monica believe that Appellant appealed the Planning Commission's decision to grant the Premises a parking variance in Variance Case No 08-021, Appellant hereby withdraws its appeal concerning Variance Case No. 08-021, but maintains its appeal to the Planning Commission's unlawful September 16, 2009 decision concerning the Conditional Use Permit Case No. 08CUP015. Additionally, under the California Supreme Court decision Topanga Association for a Scenic Community v. County of Los Angeles, 11 Ca1.3d 506 (1974), there must be an analytical bridge between raw evidence and conclusions, when as here, the City attempts to revoke a "grandfathered" right while acting in aquasi-judicial role; particulazly where, as here, the application was required by the City and was submitted by the applicant under threat of prosecution, revocation, andJor closure of the business. It is also well established that quasi- judicial findings must be supported by substantial evidence. Here, there is no "analytical bridge" between the raw evidence and the Findings and there is also no "analytical bridge' between the Findings and the Conditions imposed. Further, the Findings stated in the Official Statement of Action violate state law and where based on City Ordinance, and/or as applied, such ordinances, decisions, procedures and policies, aze pre-empted by state law and therefore violative of the United States and Califomia Constitution. (See Alcoholic Beverage Control ACT, Business and Professions Code §23000 et seq.) The City and Planning Commission further violated Appellant's Due Process Rights by not permitting cross-examination of adverse witness testimony at the September 16, 2009 Planning Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 5 of 12 Commission hearing. Manufactured Home Communities, Inc. v. County of San Luis Obispo, (2008) 167 Ca1.App.4a` 705, 711-12. (holding that in an administrative proceeding "due process requires an opportunity to confront and cross-examine adverse witnesses."). Accordingly, for all these reasons and others that may be presented to the City Council, attempts to prohibit or restrict or limit the operation of this business aze illegal, invalid, null, void, voidable, and/or otherwise without effect. This includes, but is not limited to, requirement of a CUP and issuance of a CUP, which does not allow full use as has always been enjoyed by this grandfathered use for almost 30 yeazs; and imposed invalid and unsupported Findings and/or Conditions which effectively prohibit full use and operation of this constitutionally protected property interest. EACH OF THE FOLLOWING QUESTIONS, APPARENTLY REQUIRED BY THE CITY EACH ANSWER IN ADDITION TO WHAT IS STATED IhI EACH PARAGRAPH BELOW. TO WIT: Question 1: Is the appeal related to the discretionary action and findings issued for the proposed project? Yes, and the fact that no CUP was or is required at all and also for the other reasons stated here and elsewhere in this appeal, both written and verbal at the heazing. Appellant objects that the City of Santa Monica had no authority to require Appellant to file an application for a Conditional Use Permit and therefore the decision of the Santa Monica Planning Commission is unlawful, null and void and otherwise without legal effect. Appellant and the Operator possess a constitutionally protected vested property right to sell alcoholic beverages on both floors of the Premises. Ca. Business & Professions Code §23740. Since at ]east January 4, 1982, the restaurant at the Premises has continuously sold alcoholic beverages, and done business, on both floors of the Premises prior to the City's enactment of any Ordinance or Municipal Code section that required a conditional use permit, or any permission from the City, in order to sell alcoholic beverages at the Premises; and has continuously done business in the same manner up to and including today. As Appellant has a constitutionally protected vested property right to sell alcoholic beverages on both stories of the Premises, the City is prevented from revoking Appellant's right to sell alcoholic beverages without providing just compensation. U.S. Constitution 5th Amendment; Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 6 of 12 California Constitution Article 1. Section 19. The City has also violated the operator's right at the Premises Constitutionally protected vested property right to sell alcoholic beverages on both the first and second floors of the Premises. Appellant also objects on the basis that the City of Santa Monica is estopped from asserting that a conditional use permit, or any form of permission, is required in order to sell alcoholic beverages at the Premises. City of Long Beach v. Mansell, (1970) 3 Ca1.3d 462. Since at least 1982, the Premises continually operated as a restaurant with the sale of alcoholic beverages on both floors of the Premises. Since at least 1982, the City, by and through it various departments, commission and other agents and subdivision, has continually inspected, reviewed and otherwise apprised itself of the sale of alcoholic beverages on both stories of the Premises and thereafter would continuously to issue licenses,. permits and other authorizations to the owner and operators at the Premises that permitted Appellant, and prior owners, as well as the operators to continue to sell alcoholic beverages on both floors of the Premises. The City violated its own Municipal Code and therefore the Planning Commission's Decision is unlawful, null and void and otherwise legally ineffective. Santa Monica Municipal Code §9.04.20.22.070 requires a Statement of Official Action to be approved by the Planning Commission within 30 days of the decision in this matter. The Planning Commission decided this matter in open forum on September 16, 2009 and therefore the Statement of Official Action was required by law to be approved on or before October 14, 2009. In violation of Municipal Code §9.04.20.22.070 and Appellant's Due Process Rights, the Planning Commission did not, however, approve the Statement of Official Action until October 22, 2009. Because the City violated Municipal Code §904.20.22.070 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. The City also violated Santa Monica Municipal Code §9.04.20.22.080, which required the Planning Commission to transmit the Statement of Official Action to the applicant within twenty days after the decision was made. The Planning Commission decided this matter on September 16, 2009, and therefore, the Planning Commission was required to transmit the Statement of Official Action to the Appellant on or before October 6, 2009. The City violated Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights when it mailed the Statement of Official Action on November 24, 2009 a Because the City violated Municipal Code ° Because the City waited until November 24, 2009 to mail serve the Statement of Official Action in violation of Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights, and therefore prevented Appellant from submitting its Supplemental Appeal Statement earlier than December 8, 2009 as the Supplemental Appeal Statement is based in part upon the Statement of Official Action. Thus, yet another ground exist to continue the December 8, 2008 City Council hearing on this matter to a later date in order to allow Staff to review all issues raised in this Supplemental Appeal Statement. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 7 of 12 §904.20.22.080 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. Question 2: Is the appeal related to the conditions of approval? Yes, and the fact that no CUP was or is required at all and also for the other reasons stated here and elsewhere in this appeal, both written and verbal at the hearing. Appellant objects that the City of Santa Monica had no authority to require Appellant to file an application for a Conditional Use Permit and therefore the decision of the Santa Monica Planning Commission is unlawful, null and void and otherwise without legal effect. Appellant and the Operator possess a constitutionally protected vested property right to sell alcoholic beverages on both floors of the Premises. Ca. Business & Professions Code &23790. Since at least January 4, 1982, the restaurant at the Premises has continuously sold alcoholic beverages, and done business, on both floors of the Premises prior to the City's enactment of any Ordinance or Municipal Code section that required a conditional use permit, or any permission from the City, in order to sell alcoholic beverages at the Premises; and has continuously done business in the same manner up to and including today. As Appellant has a constitutionally protected vested property right to sell alcoholic beverages on both stories of the Premises, the City is prevented from revoking Appellant's right to sell alcoholic beverages without providing just compensation. U.S. Constitution 5th Amendment; California Constitution Article 1. Section 19. The City has also violated the operator's right at the Premises Constitutionally protected vested property right to sell alcoholic beverages on both the first and second floors of the Premises. Appellant also objects on the basis that the City of Santa Monica is estopped from asserting that a conditional use permit, or any form of permission, is required in order to sell alcoholic beverages at the Premises. City of Long Beach v. Mansell, (1970) 3 Ca1.3d 462. Since at least 1982, the Premises continually operated as a restaurant with the sale of alcoholic beverages on both floors of the Premises. Since at least 1982, the City, by and through it various departments, commission and other agents and subdivision, has continually inspected, reviewed and otherwise apprised itself of the sale of alcoholic beverages on both stories of the Premises and thereafter would continuously to issue licenses, permits and other authorizations to the owner and operators at the Premises that permitted Appellant, and prior owners, as well as the operators to continue to sell alcoholic beverages on both floors of the Premises. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 8 of 12 The City violated its own Municipal Code and therefore the Planning Commission's Decision is unlawful, null and void and otherwise legally ineffective. Santa Monica Municipal Code §9.04.20.22.070 requires a Statement of Official Action to be approved by the Planning Commission within 30 days of the decision in this matter. The Planning Commission decided this matter in open forum on September 16, 2009 and therefore the Statement of Official Action was required by law to be approved on or before October 14, 2009. In violation of Municipal Code §9.04.20.22.070 and Appellant's Due Process Rights, the Planning Commission did not, however, approve the Statement of Official Action until October 22, 2009. Because the City violated Municipal Code §904.20.22.070 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. The City also violated Santa Monica Municipal Code §9.04.20.22.080, which required the Planning Commission to transmit the Statement of Official Action to the applicant within twenty days after the decision was made. The Planning Commission decided this matter on September 16, 2009, and therefore, the Planning Commission was required to transmit the Statement of Official Action to the Appellant on or before October 6, 2009. The City violated Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights when it mailed the Statement of Official Action on November 24, 2009.5 Because the City violated Municipal Code §904.20.22.080 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. uestion 3: Is the appeal related to design issues? No. Question 4: Is the appeal related to compatibility issues such as building height, massive, pedestrian orientation, etc.? No. s Because the City waited until November 24, 2009 to mail serve the Statement of Official Action in violation of Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights, and therefore prevented Appellant from submitting its Supplemental Appeal Statement earlier than December 8, 2009 as the Supplemental Appeal Statement is based in part upon the Statement of Official Action. Thus, yet another ground exist to continue the December 8, 2008 City Council hearing on this matter to a later date in order to allow Staff to review all issues raised in this Supplemental Appeal Statement. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 9 of 12 Question 5• Is the appeal related to non-compliance with the Santa Monica Municipal Code? If yes, which code section does the project not comply with and why? Yes, and the fact that no CUP was or is required at all and also for the other reasons stated here and elsewhere in this appeal, both written and verbal at the hearing. The sale of alcoholic beverages on both floors of the Premises is a legal non-conforming use and therefore Appellant does not need a conditional use permit, or any other permission from the City, in order to sell alcoholic beverages on either floor of the Premises. Appellant objects that the City of Santa Monica had no authority to require Appellant to file an application for a Conditional Use Permit and therefore the decision of the Santa Monica Planning Commission is unlawful, null and void and otherwise without legal effect. Appellant and the Operator possess a constitutionally protected vested property right to sell alcoholic beverages on both floors of the Premises. Ca. Business & Professions Code &23790. Since at least January 4, 1982, the restaurant at the Premises has continuously sold alcoholic beverages, and done business, on both floors of the Premises prior to the City's enactment of any Ordinance or Municipal Code section that required a conditional use permit, or any permission from the City, in order to sell alcoholic beverages at the Premises; and has continuously done business in the same manner up to and including today. As Appellant has a constitutionally protected vested property right to sell alcoholic beverages on both stories of the Premises, the City is prevented from revoking Appellant's right to sell alcoholic beverages without providing just compensation. U.S. Constitution 5th Amendment; California Constitution Article 1, Section 19. The City has also violated the operator's right at the Premises Constitutionally protected vested property right to sell alcoholic beverages on both the first and second floors of the Premises. Appellant also objects on the basis that the City of Santa Monica is estopped from asserting that a conditional use permit, or any form of permission, is required in order to sell alcoholic beverages at the Premises. City of Long Beach v. Mansell, (1970) 3 Ca1.3d 462. Since at least 1982, the Premises continually operated as a restaurant with the sale of alcoholic beverages on both floors of the Premises: Since at least 1982, the City, by and through it various departments, commission and other agents and subdivision, has continually inspected, reviewed and otherwise apprised itself of the sale of alcoholic beverages on both stories of the Premises and thereafter would continuously to issue licenses, permits and other authorizations to the owner and operators at the Premises that permitted Appellant, and prior owners, as well as the operators to continue to sell alcoholic beverages on both floors of the Premises. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 10 of 12 The City violated its own Municipal Code and therefore the Planning Commission's Decision is unlawful, null and void and otherwise legally ineffective. Santa Monica Municipal Code §9.04.20.22.070 requires a Statement of Official Action to be approved by the Planning Commission within 30 days of the decision in this matter. The Planning Commission decided this matter in open forum on September 16, 2009 and therefore the Statement of Official Action was required by law to be approved on or before October 14, 2009. In violation of Municipal Code §9.04.20.22.070 and Appellant's Due Process Rights, the Planning Commission did not, however, approve the Statement of Official Action until October 22, 2009. Because the City violated Municipal Code §904.20.22.070 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. The City also violated Santa Monica Municipal Code §9.04.20.22.080, which required the Planning Commission to transmit the Statement of Official Action to the applicant within twenty days after the decision was made. The Planning Commission decided this matter on September 16, 2009, and therefore, the Planning Commission was required to transmit the Statement of Official Action to the Appellant on or before October 6, 2009. The City violated Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights when it mailed the Statement of Official Action on November 24, 2009.6 Because the City violated Municipal Code §404.20.22.080 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. uestion 6: Is the appeal related to environmental impacts associated with the project? No. Question 7: Is the appeal related to other issues? If yes, explain. Yes, and the fact that no CUP was or is required at all and also for the other reasons stated here and elsewhere in this appeal, both written and verbal at the hearing. e Because the City waited until November 24, 2009 to mail serve the Statement of Official Action in violation of Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights, and therefore prevented Appellant from submitting its Supplemental Appeal Statement earlier than December 8, 2009 as the Supplemental Appeal Statement is based in part upon the Statement of Official Action. Thus, yet another ground exist to continue the December 8, 2008 City Council hearing on this matter to a later date in order to allow Staff to review all issues raised in this Supplemental Appeal Statement. Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 11 of 12 The sale of alcoholic beverages on both floors of the Premises is a legal non-conforming use and therefore Appellant does not need a conditional use permit, or any other permission from the City, in order to sell alcoholic beverages on either floor of the Premises. Appellant objects that the City of Santa Monica had no authority to require Appellant to file an application for a Conditional Use Permit and therefore the decision of the Santa Monica Planning Commission is unlawful, null and void and otherwise without legal effect. Appellant and the Operator possess a constitutionally protected vested property right to sell alcoholic beverages on both floors of the Premises. Ca. Business & Professions Code &23790. Since at least January 4, 1982, the restaurant at the Premises has continuously sold alcoholic beverages, and done business, on both floors of the Premises prior to the City's enactment of any Ordinance or Municipal Code section that required a conditional use permit, or any permission from the City, in order to sell alcoholic beverages at the Premises; and has continuously done business in the same manner up to and including today. As Appellant has a constitutionally protected vested property right to sell alcoholic beverages on both stories of the Premises, the City is prevented from revoking Appellant's right to sell alcoholic beverages without providing just compensation. U.S. Constitution 5th Amendment; California Constitution Article 1. Section 19. The City has also violated the operator's right at the Premises Constitutionally protected vested property right to sell alcoholic beverages on both the first and second floors of the Premises. Appellant also objects on the basis that the City of Santa Monica is estopped from asserting that a conditional use permit, or any form of permission, is required in order to sell alcoholic beverages at the Premises. City of Long Beach v. Mansell, (1970) 3 Ca1.3d 462. Since at least 1982, the Premises continually operated as a restaurant with the sale of alcoholic beverages on both floors of the Premises. Since atleast 1982, the City, by and through it various departments, commission and other agents and subdivision, has continually inspected, reviewed and otherwise apprised itself of the sale of alcoholic beverages on both stories of the Premises and thereafter would continuously to issue licenses, permits and other authorizations to the owner and operators at the Premises that permitted Appellant, and prior owners, as well as the operators to continue to sell alcoholic beverages on both floors of the Premises. The City violated its own Municipal Code and therefore the Planning Commission's Decision is unlawful, null and void and otherwise legally ineffective. Santa Monica Municipal Code §9.04.20.22.070 requires a Statement of Official Action to be approved by the Planning Commission within 30 days of the decision in this matter. The Planning Commission decided this matter in open forum on September 16, 2009 and therefore the Statement of Official Action was required by law to be approved on or before October 14, 2009. In violation of Municipal Code §9.04.20.22.070 and Appellant's Due Process Rights, the Planning Commission did not, Honorable City Council of Santa Monica City of Santa Monica December 8, 2009 Page 12 of 12 however, approve the Statement of Official Action until October 22, 2009. Because the City violated Municipal Code §904.20.22.070 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. The City also violated Santa Monica Municipal Code §9.04.20.22.080, which required. the Planning Commission to transmit the Statement of Official Action to the applicant within twenty days after the decision was made. The Planning Commission decided this matter on September 16, 2009, and therefore, the Planning Commission was required to transmit the Statement of Official Action to the Appellant on or before October 6, 2009. The City violated Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights when it mailed the Statement of Official Action on November 24, 2009. Because the City violated Municipal Code §904.20.22.080 and Appellant's Due Process Rights, the Planning Commission's September 16, 2009 decision is unlawful, null and void and otherwise legally ineffective. n°- ' 8c JAMIESON SON cc: Client Partners (via interoffice Ryan M. Kroll, Esq. (via inteizSffice a-mail) City Clerk City Attorney City Planning Director 1W~R1 W0Uaa0p[n Casa M-0. u=Hn, ;IoM-Pm1prlLVSUpplemaiW Appal Leer t2 82COV 4¢ Because the City waited until November 24, 2009 to mail serve the Statement of Official Action in violation of Municipal Code §9.04.20.22.080 and Appellant's Due Process Rights, and therefore prevented Appellant from submitting its Supplemental Appeal Statement earlier than December 8, 2009 as the Supplemental Appeal Statement is based in part upon the Statement of Official Action. Thus, yet another ground exist to continue the December 8, 2008 City Council hearing on this matter to a later date in order to allow Staff to review all issues raised in this Supplemental Appeal Statement. Exhibit 1 ~~ ~. ~:y u~ +1 - ti .l r 5 i ~ 4 ~' f i ~•[ .;`~i 'rrier~oa;r.~r:~:r?::"; -,rsrrt~tsrr>zru:c•;rss P.:':'IX•ii1 LS ;'.'i ~;~:KliFf"f c:i;l`Y CiP i, 1;:~:;UMLt+T l'~:::"'.:t.!(':(11*aIiJURDW((iiF. SC, .'i4! ::4~u:-':4: ::: A~•.,.... -~., ....... it ~d~i.:'.':"~ i { : : Cl~F C~~ :!s ~ :"!IL.iC . ~ L, .~~~ >.TROL ' ' i is ~ l-- . I Tt ~'Ir~ Zy .1 ~_ ~. __f T1iEbOCU?•4ENF'ii~1NHiCfi1Y.?5 ('L.RT:rtr a:: i~ iS API'fyED IS A7R;)$At7000RtiC~:"f t~'Y, ~ r:r a ;~,pr.!!hdi5i•. i UY.Il1.Eh`iP t)F RSiCr~RD 3N l':`::: SJi~'. .: -.':V';7:'::.1 ' C'•`i~'~F;t?'Y '!iP C:.t,IFUANfi. T+t~~i. OF • h7KOti. ?a..CE UJI.;%:7t'i .'GRdt6t CO ` 1 D: r:. ^f:HJL1C ~ I llr. E G:1^]YRCL ~ -1 :. 1" .. ._._ _ _ 1~ aN I _-_ t ~ --_.. _.... _ __. r_-. l .. • ~s-Il^r -_., 4. ... - - i.,) ~ 11 9 .Fr i ' ~v ~ %k I' rvn+,y p~l~l ,+x.u ICI ' roan. m. MM tliMgO I vl•.Virv/~ ~MiM• • ~ m uiRl ~'J. m.l.rl,•. I lS I I...n ... ~' L , , I ~ ' `'r I• ~ vPW,W r•,Iln• $V, Nu•,•IIIVIY•l ' f i _ ~ Il.. ~ L JH3YI,tS1~~ A•vvV• Nily Yx ~ I ~~.~~. ~. . , ..G .f ~ Lill • I.,WI. ~ . . 9 ' ' ••.~ __ , +Iwwnwulm I1 r.lww.n,l Y ~ ~ Y 'tJi ' , ~ I ~9 } - ' -- - I i x ` : wwyl MIW ~ .. -~-' I ' Q ~ L.l n, y Nt'1 V'F_ -,2'Y~ S 1 Ql r. y1JI. It il( :•-J' v ~ _ i -~ _:-_ - _ ~Ci. __ I -11~ *fil •Vil9 1 ,: . _. __- ~__ f T-_ _. __ ___,_.__ Exhibit 2 LAW OFFICES OF SOLOMON, SALTSMAN & JAMIESON A partnership Including Professional Coryora[ions 426 CULVER BOULEVARD PLAYA DEL REY, CA 90293 (310)822-9848 FAX (310) 822-3512 December 4, 2009 via U.S. Mail and facsimile and a-mail as indicated Santa Monica City Council 1685 Main Street, Room 209 Santa Monica, California 90401 RE: REQUEST TO CONTINUE THE DECEMBER 8, 2009 HEARING DATE FOR APPEAL 09APP-012 BEFORE THE CITY COUNCIL Dear Honorable Members of the Santa Monica City Council: On behalf of Appellant-1519 Wilshire Blvd LP, please allow this letter to serve as a request to continue the December 8, 2009 hearing date for Appeal No. 09APP-012 for 60 days (or some other period deemed reasonable by the Council that will permit Appellant to complete the matter stated below) for the reasons outlined below. First of all, there are no allegations that the Parlor Restaurant is a public nuisance or a danger or a harm to the community or the City of Santa Monica. As such, no exigent circumstances exist that require this matter be heazd on December 8, 2009 nor any time soon that requires a rush to an important decision. To the extent time limits exist requiring the matter be heazd on or before a certain date, the Appellant hereby waives those time limits. Just yesterday on December 4, 2009, Appellant retained the law firm of Solomon, Saltsman & Jamieson to represent it before the City Council regazding this matter. The Appellant therefore requests the short continuance in order to provide time for this firm to perform a full analysis of the factual and legal issues, garner all relevant evidence and also meet with the community, Staff and the City to identify and fully address all relevant issues. This will then allow Appellant to fully apprise the City Council of all relevant facts and issues so that it may make the most informed decision possible in this very important matter affecting Constitutionally protected vested property interest of this Appellant -owned by a longtime business. owner and property owner in the City of Santa Monica at other locations. Mr. Makhani is the Managing Member of the property owner of the premises located at 1519 Wilshire Blvd. in Santa Monica (operated as the Pazlor Restaurant) and therefore has a constitutionally protected Due Process Right and vested property interests with regard to the nrottert afor a droximately115 years and Os a to gtime bus ~esss opegatortand propert ownerhn P P Y PP Santa Monica. Santa Monica City Council December 4, 2009 Page 2 of 2 Additionally, Appellant will file an amendment to its Appeal statement on Monday, December 7, 2009, as is indicated in the City Council Report for this matter. As such, the short continuance will allow Staff additional time to address the issues raised in the amended appeal statement, so that it may properly advise the City Council, and so that the City Council may make a fully informed and considered decision at hearing. Based on information gleaned initially, but which so far is unreviewable due to City, County and State agency closures or furloughs, it is expected that relevant evidence will be obtained and presented that reflect this premises has all necessary rights and entitlements and, if so, then no Conditional Use Permit will, or may be, necessary. This is important, legally relevant information that the City should, to comport with legal requirements and equitable principles of fairness and Due Process, fully consider before hearing and deciding this matter. Because this documentation will likely need be obtained through Public Records Act Requests and/or discovery, Appellant anticipates it could take 20-30 days to obtain this vital documentation and therefore good cause exists to grant a short continuance. I recognize that the City is not open today, Friday December 4, 2009, but I wanted to put the City Council and Staff on notice as soon as possible that Appellant is seeking a short continuance of the matter. I will follow-up on this request on Monday, December 7, 2009. Please let me know if you have any questions or concerns, and I look forwazd to hearing the City's response to the continuance request at its eazliest convenience. Thank you. Sincerely, SOLOMON, cc: Client Stephen A. Jamieson, Esq. (via interoffice ail) City Cierk -mania stewart(ct7sm og v_net (310) 394-2962 Marsha Jones Mouuie, City Attorney - attomev(a)smgov.net (310) 395-6727 Ken Genser, Mayor - citynQensecore (310) 458-1621 Pam O'Connor, Mayor Pro Tempore - pam oconnorCcr~smeov.net (310) 458-1621 Richazd Bloom, Councilmember - richazd bloom(~smeov.net (310)458-162] Glenn Davis, Councilmember -,gleam davis(a~smQOV.net (310) 458-1621 Robert Holbrook, Councilmember - robert holbrookna sm og v.net (310) 393-7948 Kevin McKeown, Councilmember - kevinna mckeown.net (310) 458-1621 Bobby Shriven, Councilmember - bobby shriver(a~smgov.net (310) 458-1621 Paul Foley, Principal Planner - Haul folevna smeov.net Eileen P. Fogarty, Director Planning - e foeertvCc~smeov.net P. Lamont Ewell, City Manager - manaeerna sm og v net 426 Culver Boulevard Playa Del Rey, CA 90293 Tel: 310-522-9848 Fax: 310-822-3512 i~ S O LO MO N, SALT SMAN 8 J AM IfS ON ~ To: Robert Holbrook Fax: 310-058-1621 To: Kevin McKeown Fax: 310-d58-1621 To: Bobby Shriver Fax: 310-458-1621 From: Re: Stephen Jamieson 1519 Wilshire Boulevard Pages: Date: December 4, 2009 ^ Urgent ^ For Review ^ Please Comment ^ Please Reply ^ Please Recycle • Comments: 426 Culver Boulevard Playa Del Rey, CA 90293 Tel: 310-822-9848 Fax: 310-822-3512 S O LO MO N, S A~T SMAN 8 ~ J AM IES O N To: Pam O'Conner To: Richard Bloom To: Gleam Davis From: Stephen Jamieson Re: 1519 Wilshire Boulevard Fax: 31058-1621 Fax: 31058-1621 Fax: 31058-1621 Pages: Date: December 4, 2009 ^ Urgent ^ For Review ^ Please Comment ^ Please Repty ^ Please Recycle • Comments: 426 Culver Boulevard ~ ~ ~ ~ ~ Playa Del Rey, CA 90293 Tel: 310.822-9848 . ~ • Fax: 310-822-3512 Ir.-.~ To: Marsha Jones Moutrie Fax: 310-395-6727 To: Maria Stewart Fax: 310-394-2962 To: Mayor Ken Genser Fax: 310-458-1621 From: Re: Stephen Jamieson 1519 Wilshire Boulevard Date: December 4, 2009 ^ Urgent ^ For Review ^ Please Comment ^ Please Reply ^ Please Recycle • Comments: TRANSMISSION VERIFICATION REPORT TIME 12/04/2009 15:51 NAME SSJ LAW FAX 3108223512 TEL 3108229848 SER.# 000F4J154227 DATE,TIME FAX NO./NAME DURRTION PAGE(S) RESULT MODE A28 Cuiver Boulevard pWya ~i Rey, CA 90293 Tel: 310.822-9&48 Fax~3~0~822-3512 i~ 12/04 15:51 913103956727 00:00:35 03 OK STANDARD ECM S Q LO MO N, SALT SMAN 8 J AM iES O N ~ To: Marsha Jones Moutrie I Fax 31Q-385-6727 Tw. Maria Stewart Fax 310.394-2962 Te: Mayor Ken Genser Faac 310.458^1621 i From: Stephen Jamieson i Pte' Re: 1519 Wilshire Boulevard I Date: December 4, 2009 - Urgent ^ Far Review ~ Please Comment ^ Please Reply d Please Recyole e Comments: TRANSMISSION VERIFICATION REPORT TIME 12/04/2009 15:53 NAME SSJ LAW FAX 3108223512 TEL 3108229848 SER.# 000F4J154227 DATE,TIME 12104 15:52 913103942962 FAX NO.JNAME 00:01:23 DURATION 03 PAGE CS) OK RESULT STANDARD MODE ECM 426 CuN®r Boulevard Playa Del Rey, CA 90283 Tel: 310.8?2-9848 Fax 310.8223512 Lc~'3 7b: Marsha Jones Moutrie Fax: 31D-385-6727 70: Maria Stewart Fax: 310-394-2~2 To_ Mayor Ken Denser Fax: 31058-1621 Fmm: Stephen Jamieson Payex Re: 1519 Wilshire Baulevard Date: December 4, 2005- O Urgent Ll For Revl®w ^ Please Comment ^ Please Reply C7 Please RacyNe s Comments: TRANSMISSION VERIFICATION REPORT TIME 12/04/2009 15:54 NAME SSJ LAW FAX 3108223512 TEL 3108229848 SER.# 000F4J154227 DATE,TZME 12f04 15:54 913104581621 FAX ND.fNAME 00:00:31 DURATION 03 PAGECS) DK RESULT STANDARD MODE ECM 426 Culver BaulEVartl Playa del Rey, CA 9693 TaC 31022-9848 Fex;31D-822-35t2 To: Marsha Jones Moutrie Ta: Maria Stevu2rt To: Mayor Ken Denser From: Stephen Jamieson S O LO MQ N, SALT SMAN ~ J AM IES O N Fax: 310-395-6727 Fax: 310-39A-2962 Fax: 310-458-1621 Re: 1519 Wilshire Boulevard Cate: December 4, 2009 ^ Urgent ^ Few Revlewr ^ P1Qase Comment d Pieage Reply ^ Ple~asQ Reeyole e Comm®ntse TRANSMISSION llERIFICATION REPORT TIME 12!04!2009 15:56 NAME SSJ LAW FAX 3108223512 TEL 3108229848 SER.# 000F4J154227 TIME DRTE 12/04 15:56 , lNAME FAX N0 913104581621 . DURATION 00:00:34 PAGE(S) 03 RESULT OK STANDARD MODE ECM A26 Culver Boulevard Playa Del Rey, CA 90293 TeI: 310-822-9848 Fax; 314822-3592 Lr'~ Ta: Robert Hvlbnmk Fax: 310-458-1821 T« Kevin McKeown Fax: 310-458-1621 Ta: Bobby Shriver Fax: 31058-1821 From: Stephen Jamieson Page Re: 1519 Wilshire Boulevard Date: December 4, 2009 ^ Urgenti ^ For R®vlew d Please Camme~ ^ Please Reply ^ Please Recycle • Comments: TRANSMISSION VERIFICATION REPORT TIME 12!04/2009 15:55 NAME SSJ LAW FAX 3108223512 TEL 3108229848 SER.# 000F4J154227 TIME DATE 12/04 15:55 , FAX NO./NAME 913104581621 DURATION 00:00:31 PAGECS) 03 RESULT OK STANDARD MODE ECM 426 Culvar SoulevaN ~ ~ ~ i ~ Plays ~I Rey, CA 90293 Tel: 310-8a2-9548 ~ ~ ~ Fax: 310.822.3572 To: pain O'Conner Fa~c 310~t58-1621 To•. Richard Boom Faxa 310-d58-1621 To: Gleam Davis Fmc 310-458-1621 Frain: rte: Stephen Jamieson 1519 Wilshire Boulevard P Date: Aecember4, 2009 J D Urgent O For Review O Please aeroment ^ Please Reply Q Please Rteyeie e Commerks: Attachment C 1998 ABC application for change of owner Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 26 ®AJ¢_Hg/Np-plb-1®Jg'JA6^ ~rp(1 t ~ a r ~° rrt~s~~egri u..<q~~~u .u®®~gd..gw®v~... ~®y p}yg, .qw~ ~ ~ - - - - - - - - WY• V r C~~G V6~~ nrrVTB®/ i'4~0 \Am _ OFlAAr19EPR OF 110J'f1~IC~Af ~ypilep~A S. HAVE P°CCrPCRATlDN - _ 2AlG S1CiaBt: N11a16Bt VERDI INC. 47-115855 a. rraEwtsm woneas AooroESS, cm, srAre, nr t tsenn.ar~ HtMpEyi 1519 WILSHIRE BLVD. SANTA MONICA, CA 90403 {310 )393-0706 5. ATiCXN(iY'Q N.WE 9. ATrpgHEy'9 BERNARD I. SEGAL 19.00 AVE~'c~5'T~~'S~; 19T& FLR. ~~~FHt1Ct9Efl 7 (31 0) 201 -7543 +. w.uF wo aacAr+a+cr ca.~ofln~F w.c ACCwrcr 0 01 0 e .>rnouxr nvu~A WELLS FARGO BANK (WARNER RANCH) WOODLAN HILLS 91 67 0904-670155 A A4fRWq~D S+a4ANnE16) OP 9ANe ACCOUM ~ `---'"~.- _ JOHN MAKHANI ~w vnr a v~ nwuwcAUr~a t t. 9TATY (Y IMCOflroRAitON - _ t2. CA 9FL^gETARY OF STATE /1Cp MUM9Ffl 10/31/80 CA 1028777 Y3, bFFIC6RS AND D~gECTOR3 (U58 atldifiona! sheet i/ rdquiredj ~~ NAME ADDRESS TEIFPNONf President JOHN MAKHANI 13625 VENTURA BLVD. (818) 905-1726 ISHERMAN OAKS, CA 9142 14- LIST ALL $70CK CERTIFiCATE3 / ilsaadAtloaa/sheetK'rfnery: t'dtCB`k~~°gucor+r+P.c~rn~lad.s,v J l F~waaity. lt.sltxk Is pl0egod, irnyude ~, twrraSev dahafe9, tndlfom YAaxn m wnwn, / TO WHOM fSSUSD CERTlFICA?E NUMBER PF'RCEN7-ACE OF UATS ~ r7ATE' NO. OF SNARE$ O(f737A/dDlNC 1SFUED CA.Y('ECL£D SNARES FS7 X BERNARD I. SEGAL AND '-"- SHIELA K. SEGAL AS JT* 1 1000 02/26/81 03/94 BERNARD. I. SEGAL 2 1000 0.3/94 12/29/9 JOHN MAKHANI. 3 1000 1000 12/29/91 I I I HER6EY C1;R'i7Fy We above ere th< present o91se. at dlrertpca ayd/ar stoehbp;'Jara and tlmt eaelt sngi oMttr, dirtcfor and atoa'ahofder b 1h ~ nd parer i< iatewi xith b then poeltba and la no: acr3 dlretd or lodlrecd ~ the Dep enl It b nndeRtaad that `hengt Iq offlcera, dlretton an~pr ins ~e 4 tmPbvee ar nprta<aeeyre W ens other pxraoa not repm-ted to prev{o y appeov oteajtlg 1B'~ trt0as w be rtported to the D.pw4monr trllhin 74 de tr u~raamT m RWt 6gy oe lhF Rules <qd IR In a ppteroa not Alc 4olle Bevet'y Control -.. ~ P egutedotn of 6ne- 15. IpNATURH QR jT}tE C/ORFgPdTlOtd1 te. TrltE -~- ~-~.~ X - ~/ /~/ ll•--~ ~~ CFO Itr.w,r~~ ~. ~'~ J F017 DEpARTMEHT U3E (qu7e 6d.5 Only) ~ 4" sACiuffxro.W N«1 oicm~cr orricE ° AtJrNOtigF33 ssxaESeHrAnvE F C '`^~ C,O"~Q` i 1 .ACaat (SV,rR. PEE ~~`~ ONE ~~eQ F0 F~~F' J~ STATE OF CALIFORNIA DEPARTMENT.OFALCOHOLIC BEVERAGE CONTROL AIAG~~ F 11 E E PRE ISES APP LICAN T(5) PREMISES AD DR E55 ($[feef) ~ ~ (City) ~ TYPE OF LICENSE The diagram below is a true the only area where alcoholic ~ in feet.) (If only a portion - ' sold, served, consumed, i =scription of the entrances and boundaries of the premises to be licensed, and is >d, consumed, possessed or stored. (Show general, overall dimensions -~d, please ouTline in red the area where alcoholic beverages will be ~ ,.~ 2~~ It is hereby declared that the above-described boundaries and entrances will not be changed without first notifying and se- curing prior approval of the Department of Alcoholic Beverage Control. I declare under penaltry of perjury that the foregoing is true and correct./ ~ // l //J ~ J/^ ' Date: f ^~'/^T111 i /:-vJ ~G~F~~ Fi~AL~"' r_,6*~~1.•?~-"- ~-~~4, ;i-r_,a~iL` /. 12 ~ ,~IGN ATU RE . ~ /7 l~ Place: f r~w'~i / ~!~`/7!~- --f/~~ SIGNATURE '~ Special Instructions for Applicants for Public Premises Type Licenses Your signature above acknowledges that you are aware that in premises operated as a Public Premises no persons under 21 years of age are to be allowed. A sign ai least 7''x 11" stating "No Person Under 21 Allowed" must be posted near each entrance and at a prominent place in The interior of the premises. DEPARTMENT us= only: i ./-~ !I "`~ J 'rt :a v 1~ C - - } ~" r o ~-- ~~ _ a ~. ~ - ~ ~~ ~ rl?=~ ;~ 5 I, - ~-- _ f f ~i ~ r>_, iii - r i I `- 3 i ~ I ~ ~ a i -.I ~ , ~ J ~ _ ~ ; ; I a ~ ~ i ~ _ -~ I i?o~ _ ~ ~ r ~ I ~~ u` t 3~- ~ _„3 ~_ ~? ~€ a a ; ~~ ~: - ~ ~~ _ ~~~ ~ I ~ ~ i =- ~ - ~ ® -- .. - _ -- ~ a -- ,~, ,~ -~ i 1 ~e ~- ~_ ~~ ti f -; .. I" .6 ~ - n~ f n -:r -~ Y t _$ .~ i i :Y -~ L. ,_ ~ _ Attachment D Original ABC Application from 1981 Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 27 C`~ R~FORT ON APPLICATION FuR uCEP~SE UNDER ALCOHOLIC BEVERAGE CONTROL ACT I. OI VISION 2, pIST ftIC T/BRANCH 3. OA TE /Z ~ u' ~~ SOUTHERN INGLEWOOD A. NAME OF APPLICANT VERDI, INC. S. MAIL ADDRESS IIF OIFFEflENT FflOM PgEMI5E5 AOOgE951 ZIP CODE TEMP. Oft PER~TEMP California Federal Plaza, 5670 Wilshire Blvd., Suite 2290, Los An a es 90036 6. DBA Verdi C.T. #7015.01 ], ADDRESS OF PREMISES ZIP CODE GEO GRA PHIChL CODE 1519 Wilshire B}sd., Santa Monica, CA 90403 1953-1 B, LICENSES APPLIED FOR 'I. TYPE OF TRANSACTION IIF IN TERL OU NTY TRANHFEfl~ SNOW TRANSFEgO q'S COUN TY) Type "47" CONDITIONAL Per-Per & Prem-Prem Tfr. JO. TEMP. PERMfT ISSUED I. LICENSES ALREADY HELD 12. EFF. DATE/EST. COMPLETI ON DATE. ^ yEE ©NO NUMBEN None .1-1-$2 ~ ~ ' I9. COPIES MAILED DATE Id. DATE PREMISES POSTED IS. DATE PREMISES INSPECTED 11-2-81 11-2-81 11-5-81 1G. WHERE POSTED To the right of front door dated 11-2-B1. ~]. PUBLICATION DATE AND NAME OF PUBLISHER , 11-6-81 Evening Outlook ~,j~~' IA. NAME AND ADDRESS OF TRANSFEROR - ucaxsE xVMBEfl PICARO .,III Ct3RP.., 10532 East 'Lower Azusa Road Surr Rule 65 10-2-Sfl E1 Monte, CA 91731 Extension to I1-2-82 47-052853 J9. DATE RENEWAL FEE PAID RECEI P.T-NUMBER AMOUNT 11-2-81 29789 $638..00 2O. PENDING DISCIPLINARY ACTION AGAINST TRANS-FEROR IUSE qEO TYPEI NONE PI, TRANSFEROR'S LICENSE ORIGINALLY 155UED.DUft ING LAST S YEARS PY. MA14 LICENSE TO D.O. Z.3. REARING TImE ^ YES IF YES: DATE ~~ NO ^ YES O NO N/A ZQ. FORMER LICENSEE AT THESE PREMISES - , NEVER IICENSED ZS. LICENSE NUMBER - ABC LdI ATTACHED N/A -_ ^ YES x~NO REMAft KS ABC-226 attached. l12-21-81) 2]. IF RECOMMENDATION IS DENIAL, USE REO TYPE RECOMMENDATION I ESTIGATOR GATE SUPERVISOR ,DATE CONDITIONAL ~z~23 APPROVAL ~/ ~/ ~~'~`ii7. z -7 ~-~~ .RECOMMENDATION DISi CT~' D 1 STRATOR DATE FOR DIVISION REVIEW ' CONDITIONAL ~ 1 ~Z~I (/~ `]" EE ~ Nx APPROVAL• i- p ~ ~ ___ SEE REVERSE FOR REPORT: 28. MORAL CHARACTER 2J. RREMIS ES AND 3O. FINANCING DO NOT WRITE BELOW DATE NEW TRANSFER LICENSE ISSV ED Q)~ ~BC-220 f]-]61 ' - ~ ~- V,ERI?I , INC. ABC-220 Page 2 MORAL CHARACTER: Applicant is a California corporation, incorporated under Secretary of State File Number 1028777. The to issue 100,000 shares of stock. October 31, 1980, corporation is authorized The stockbook shows the following stockholders: TO WHOM ISSUED CERT.# # OF SHARES DATE ISSUED PERCENTAGE Bernard L. Segal and Sheila K. Segal 1,000 2-26-81 100% Minute book reflects the following officers: President & Treasurer - Bernard I. Segal Vice President & Secretary - Sheila K. Segal Bernard Irwin Segal (President-Treasurer-Stockholder) dob: 7-24-32, SS #566-36-1378, is a married man. His wife, Sheila, i~ an officer and stockholder in applicant corporation. Mr. Segal has never previously been qualified by the Department of Alcoholic Beverage `Control. For the past 20 years, he has-been self-employed as an attorney in Los Angeles. His 208 lists no arrests or convictions and CII concurs. Sheila Kay Segal (Vice President-Secretary-Stockholder) dob: 2-8-36, SS #550-44-7663 is a married woman. Her husband, Bernardo is President of the corporation. Mrs. Segal has not previously been qualified by the Department of Alcoholic Beverage Control. For the past-five years, Mrs. Segal has been a housewife. Mrs. Segal's 208 shows no arrests or convictions. CII not received to date. PREMISES REPORT: Applicant premises is located in a two story building on a main street in a business area. Premises is approximately 100' x 50'. Bottom floor will have dining room, stage, cocktail lounge and complete commercial kitchen. Second floor contains office, food/wine storage, plus living quarters for live-in employees. The living quarters are not to be licensed. The only entrance to the second floor is thru the premises. Premises will be open Tuesday thru Saturday 5:30 p.m. till 2:OO a.m., Sunday~3:00 p.m. till 2:00 a.m. and closed on Monday. The kitchen will be able to prepare and serve full meals in compliance with Section 23038. Premises will feature live. light opera performances. Patron capacity is approximately 130 and there is off street parking for 80 vehicles. - Licensed History: Never licensed ~_ VERDI, INC. ABC-220 Page 3 Zonin On 12-16-81, contacted Santa Monica City ?oning, Mrs. Nan. She stated applicant premises is zoned C-4 which permits the sale and service of alcoholic beverages. CONSIDERATION POINTS: There are two consideration points within 600' of the premises. They are as follows: 1. Lincoln Junior High, School, 1501 California Avenue, Santa Monica, Contacted Deputy Super ntendent Peter Lippman, Santa Monica Unified School District. Mr. ppman stated he has no objection. Contacted Mr. Howard Steinman, Principal of Lincoln Junior High School, approximately 500 feet away from the premises. He stated he has no objection to the issuance of the license. 2. Santa Monica Hospital Medical Center, 1225 - 15th Street, Santa Monica, approximately 300 feet from the premises. Contacted Mrs. P.A, Rauselter, Assistant Director. She has no objection to the issuance of the license. RULE 61.3• Santa Monica Police Department does not maintain crime statistics., hence, Rule 61.3 does not apply. Contacted Capt. Sullivan, Santa Monica Police Department, Vice Detail. Captain Sullivan stated he had no objection to the issuance of the license. RULE 61.4: There are eight residential-units within 100' of the proposed premises. They are listed as follows: 1, 1142 - 16th Street, two units approximately 40' from the premises on 11-S-Sl left contact letter. 2. 1138 - 16th Street, six units approximately 90' from the premises on 11-5-81 left contact letter. To date, no response has been received from anyone. ~=_ ~- ?ERDI, INC. ABC-220 Page 4 FINANCIAL REPORT' Applicants intends to spend $36,000.00 fOr license and an additional $700,000.00 for rebuilding and fixturizing the premises. Total amount $736,000.00. The total will be ash. SOURCE OF FUNDS' - Corporation has obtained all funds thru loans and sale of stock to stockholders Bernard and Sheila Segal. Mr. & Mrs. Segal obtained their funds as follows: $450,000.00 savings .from Mr. 5ega1's law practice $200,000.00 home refinancing $100x000.00 open end bank loan from Santa Monica Bank Sources appear adequate, further investigation waived. :dcc Attachment E January 7, 2008 letter to Applicant/Appellant Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 28 Plar.., :~g and Community Development Depar„ sent Planning Division 1685 Main Street PO Box 2200 Santa Monica, California 90407-2200 City of Santa Monica'" January 7, 2008 The Parlor Co/Ike Pyun 1519 Wilshire Boulevard Santa Monica, CA 90403 Re: Alcohol Determination #07AD008 1519 Wilshire Boulevard, Santa Monica Dear Mc Pyun: The city is in receipt of the alcohol determination application for the above location. In reviewing the file and prior permits, a few concerns have been brought to our attention and must be resolved prior to processing this request. The following issues need to be discussed: 1) There was a previous parking variance, which has since expired, providing off-street parking. Please provide any parking arrangement that is currently being used to accommodate the customer demand for this operation. 2) The floor plans indicate the use of the second floor for restaurant. No building permits or planning entitlements indicate the restaurant had previously operated on the second floor. Please provide information on any prior use, permits, etc, that establishes this operation on this level. If an expansion of the restaurant has taken place, a Conditional Use Permit would be required. Please contact me at (310) 458-834 or via email reoina.szilakt7a smgov.net to make an appointment to discuss these issues. Sincer f,~ a Szilak ssistant Planner Enclosures: Parking Variance 4321-Y and seating plan te1:310-458-8341 . fax:310-458-3380 Attachment F June 4, 2008 letter to Applicant/Appellant Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 29 Planning and Community Development Department Planning Division 1685 Main Street PO Box 2200 Santa Monica, California 90407-2200 June 4, 2008 Ike J. Pyun The Parlor 1519 Wilshire Boulevard Santa Monica, CA 90403 RE: Alcohol Determination 07-008/ pending business license 135599 The Parlor 1519 Wilshire Boulevard, Santa Monica, California Dear Mr. Pyun: This letter is to inform you that the above application (Alcohol Determination 07-008) requested. in conjunction with the transfer in ownership of the existing restaurant at 1519 Wilshire Boulevard can not presently be approved for a Type 47 (On-Sale General, Bona Fide Public Eating Place) Alcohol License. in a letter from the City dated January 7, 2008 we expressed concern over an expired parking variance and potential unpermitted expansion of the restaurant use to the second floor. To date, I have not received requested documentation that may establish a record for the second floor food serving use and have received only a floor plan submitted. with the application for the alcohol license to the ABC (Alcohol Beverage Control) Department dated 4/11 /2007. The City records show a parking variance (Z.A Case 4321-Y) issued in December 1980 has expired. In addition, a substantial change in the mode or character of operation (a ten percent increase in the floor area of the premises or a twenty-five percent increase in the number of seats in any restaurant which serves alcoholic beverages) requires a Conditional Use Permit per Santa Monica :Municipal Code (SMMC) Section 9.04.10.18.020, Since the parking variance has expired, and no additional information has been provided that demonstrates the City approved the second floor restaurant operation, the appropriate applications to file are a parking Variance (VAR) and a Conditional Use Permit (CUP) application. In addition to the VAR and CUP applications, the City does not have a record of the necessary building permit for the scope of work that was required for the current tv audio, video and sound systems as well as a sign permit for the exterior building signage. Please submit the appropriate applications to permit these installations. Attached please find an application for a conditional use permit, variance and architectural review board application along with the current fees (fees increases anticipated for July 1, 2008)and associated materials: tel: 310-458-8341 . tax: 310-458-3380 Ca Printed on 100°b pos4mrsumer PCF paper Please feel free to contact me at (310) 458-8341 or regina.szilak@smgov.net with any questions that you may have. 1 ~~~~ ina Szilak Assistant Pla er Santa Monic City Planning Cc: John Makani F:\CityPlanning\Shaze\ZONE\AD\07ad008(1519 Wilshire).doc Attachment G July 30, 2008 letter to Applicant/Appellant Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 30 Planning and Community Development Department Planning Division 1685 Main Street PO Box 2200 Santa Monica, California 40407-2200 July 30, 2008 Ike J. Pyun The Parlor 1519 Wilshire Boulevard Santa Monica, CA 90403 RE: Alcohol Determination 07-008/ pending business license 735599 The Parlor 7579 Wilshire Boulevard, Santa Monica, California Dear Mr. Pyun: This letter is to inform you that the City has received no additional information regarding the request made on June 4, 2008 for documentation from the property owner verifying the legally permitted status of the second floor food serving area. The City Planning Division is, therefore, requesting that a Conditional Use Permit and a Variance application be filed by August 19, 2008. As stated in previous correspondence, the City records show a parking variance ~Z.A Case 4321- Y) issued in December 1980 has expired. In addition, a substantial change in the mode or character of operation (a ten percent increase in the floor area of the premises or a twenty-five percent increase in the number of seats in any restaurant which serves alcoholic beverages) requires a Conditional Use Permit per Santa Monica Municipal Code (SMMC) Section 9.04.10.18.020, Since there is not substantial evidence to verify the status of the second floor dining area, a Conditional Use Permit is necessary to allow for the expansion of the use. I will be out of the office until August 71, 2008. Please feel free to contact my supervisor Paul Foley at (310) 458-8341 after August 8'h or you may send me an email at regina.szilak@smgov.het with any questions that you may have. Sincerely, ~IhC~ S~i~/~ Gina Szilak ~!~] Assistant Planner Santa Monica City Planning Cc: John Makani, property owner ~~~ Frank Williams Code Compliance Officer F:\CityPlanning\ShareIZONEWD\07AD008.2(1519 Wilshire).doc tel: 310 458-8341 . fax: 310 458-3380 j Psio[td on 100% postconsumer PCF panes Attachment H Compliance Order issued October 7, 2008 Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 31 e"~'.°.'.`~. lea :-._Sv^a ...~~ c;_r ~< ~~aaa i~aaa~~ea~, October 7, 2008 ~ui'6ding anu safety 7685 Main street PO Box 22QD Santa Monica., [alifornia96407-22tJ(f 1519 WILSHIRE`BLUD LTD PTNSHP 221B0 VENTURA i3LUD WOOC7LAND HILLS CA 91364 Clfficer; Prank Williams.. Contact: (39Oy 458-4984 Ext. 5895 CC7~ttPL1ANCE ORDER Violation Location: Case dumber: lnspectan Date. ~lpproximafe Time: 'Compliance Dafe; '15'19 Wilshire Blvd.. 4'YGC}NI'19'-2' 9 019 f08 9.00 ~I1{T November 7, 2008- :Code Compliance staff has determined that the following violations} of the Santa lvlonica t'~unicipai Code exist(s) at the above referenced location: Code Sections} SIN~tIC 9.04.'10.98.020 Conditional Use Perrriit: SIVIMC 9,04;20.90.030 Parltirtg Variance. Violatie~n(s) Description: '1} Expansion of restaurant operation on the second floor without obtaininga Gcrnditional Use Permi#: 2} Parking variance 4321Y has expired'. :Required Correct'sue,~lction~s}. 1} Submit the appropriate applications and plans to Santa iVionica City Planning C?epartment. Bcailsfin Permit4ddifional Fees:. Curren# C3wner responsible,: -Minor worklno structural plans required, Investigation & penalty fees rnayrappty i~ permitnot obtafned within 10 days vf` co Hance order issue date. Compliance Dafs: Navernber 7, 2008: 2e[: 310 ?i5&-8355 1519 Wilshire Blvd:. 4~COIti111912 You aria.. hereby` d'€rected to complete the. Required Corrective Aotion no later than the Compliance Date shown above. If you do not correct the violation{s} further enforcement will: commence after that date. Your corithuedfailure to:correct the violation{s} will result in your case being referred to the City Attorney's office far:: 1. An administrative: hearing before a 'Hearing Officer who may assess administrative penalties. The scope of the penalty depends on the category of violation. This. vi©lation -is likely in Level D. The range of penalty amounts in this category is $9flfl.00 to $999:99, per day: The penaities are assessed for each day the violation: continues to exist as# the compliance date; OEt 2. Criminal prasecutioi for failing to comply with any of`the mandatory requieements of this Code. Any person failing to comply shall be guilty of a misdemeanor for each and every day-that such violation exists. Each violation shat( be punishable by a fine of not' more that five hundred dollars per violation; or by imprisonment in the City or County Jail fora :period not exceeding six months, or by both such fine and imprisonment; C)R 3. Both administrative penalties;and criminal prosecution If permits andlor plans are needed for corrective action, Tease bring this compliance. order Wifih you to the Building and Safety Division, `t 685 lVlaitt Street, Room 1'19 at :Santa Monica City HaII. If you have any further :questions regarding this' Compliance Order, please contact the: undersigned Code Compliance Officer at (31Q) 458-4984 as soon as possible:: BY flf2Di=R OF THB BUILDI~lG UFFICER ,\ w;; ~- -4 , _ _-- . t-m-_-~-~.. j Frank Williams {Ext. 5595} Code Cernpliance Officerfi ~e, Hearing Procedure & ,fippeal Pfacess 10.18.020, 9.04:20.1{1.030 none PW'AB GC: Business Owner-The Parlor & John Ntakani Page 2 af'2 5 untn 4le~deu' Consequences Of Noncompliance, Hearing l'rocedut~e And Appeal Prppess Retatedto City Administrative Hearin4s Compliance Orders: City Officials issue compliance oNars to address violatiarl WlletheY melt asfi Ct of the ~essei ~f fo€tnd in Chapter 1.i Code Copies of the Ha(t,:.1585 Main Stre of your rights':and re case of I310> 458-4 prior to the hearing. The notice will contain the data, time and place ai :r will conduct the hearing.. will ke able to present sw~rn'testimonyand any other evidence about urred and/pr that trie violation has contintaed to exist, tJnless'itherwise xaminer you must:submit arty written-evidence at feast two days prior The hearing praceedingswiEt be recorded. Ydu may also :provide :a ie Hearing Examiner determines that a vio(atian ocdurretl that: was not period specified in;the compliance order, the Hearing Examiner will rder to correct the vidlafon within a specified timeframe and specify any 3enalties due. Costs: Unless tna '.Hearing: ExamineF grants an' extension of the [l in the compliance order, the responsible party for'any violafon must sts rncurced by the Oify related to the violation. This includes kut is not ration, staffing costs incurred °in preparat€on #or the tiearin9 antl for the. Baring Examiner determines the levol of ecurrence, seriousness and impact on tare- #aith efforts'to come into compliance and to pay an administrative penaltyis a rriisdemeanor, The City. hive penalkies and administrative costs by use of all available to civil suit criminatiprosecution, and recordation of a lien or gainst the real property whereon the violation exists, Any person aggrieved by an administrative order of Ytia of the administrative order in the Superior Court. If,you fail tb excuse, you will forfeit this right:. ~rnplete requirements related td Compliance Orders can 6e krderslAdrn[nisttative]Penalties'df the Santa Monica MunEcipal MunicioaP Code are svallabla at tfie Gitu Clerk's offrce. City Order. or .her G4.It3;l8.f}20 Applicabilit}~. Pugh t of t ~~nta iw3€sr3=c~a ~¢atnicip~I Code fife C~aaviozas text aln Search Print Na Frames yrkicle 9 4'i.ANi~}TP)G AND ZUNIN~y Chapter 9.04 ZONING REGIJIltTIQtVS Subchapter 5.04,10 Pro7ectpesig.n.aOd;Developm~#]t StaSld~rda Pam 9 44.10.1$. A3cnhni Outlets 3,t7~d.~.#i.18.O2{3 :~ppltcabilifY --.____ _ _._ ~,ro person shalt establisha new bnsit3ess or usedispensingfor sate[~i'other consideration>aleoho[ieGaverages;,inetudin~ bay +; ine; Hiatt beverages, and disiillccl spirit, for on-site or af€ site eonsum~tion without tirst obttluting a ebnditional ,use perm it+ ~sisting'a{coholai9tiets shaf7 also obtaura conditional usapermit excap[ wirere thu-premisescutterxciata the same ype ofre€ail iyuar license within n license classiticalion or the licensed premises ark opefated continuously without-substantial-change in node or charaeter cafopet~ttitiit, fixisting_pramises shad ttot be oonsidercd to 6a opeeathag confinuocisfy and a conditional use aermit ha}l be retlitirod where operations have been discontinued For a,pea•iod of ouar one ysttrexcept that, €'or premises iirsho 'M L?istrict, the dine pariod:slaal} eitherbe sis months ar the time period established in Section 9.134.©i;.28,070{gj; or ang- etccessrrr tegislatipn thereto, whichever is longer. fEXis-thtg premises where operations have bean discontinued for<these time aeriods shall be required to bbtain an aleahol ootiditional use=permit prier fo restuning husine'ss whatheri~r not an atcoliol ;anditioital use peimlt was.obtained in the past for the premises. A substantial change in mode or c[taeaeter of operation shall. nalucle; ~iut is not limited toga ten percent increasein the floor area o1'tl3e premises,'a twenty-~vc percent increase-in fhe shdl€ arra rased Isar the display afi alcahaHe beuea•ages, ©r~a twenty eve percent inca~ease in Ilse number of seats in any restaaranY whecfi :eres atctsholic beti erages: (Prior code ¢' 9049.2; timendad by Ord. 22~ACGS § 1. adopted 2f24/f)8j {7=1.?f1.1€?.03~ Ajipiicabili#{. Page 1 of Santa N#anica tunicip~9 fade: tjp. previisus next. Ntaitt 5aarch Prim A3a~ra~s- Ar;tcff 9 F'kANJ+FI?IGRNC7ZONING _:.. _.. Chapter 9.D4 Z©NING REGULATIONS SubCnapker 9.D~.20 24ning t~dminiskratiob t?rit~2.Q~.2DJQVar3auces _ 3,43~4,20.10,48Q Applicability. The Zoning Azlminisn-atdr may grant a variance Tram the req€€iremetits of this chapter to (a~ r111aw t}ra;rnodificat'mn afthe rn'lnnnttrn tot sizes ar riiinimum parcel dirne(tsionsi (h) Allo~~ the modifica;tan of tlae umbernnd dimensiffps of automobile pari:ittg spaces; loading spaces and driveway cquirernents including tiroscset Uy performance standards, use permit,special standards, special conditions for conditional' uses; egula€icrns of the various totting disfi-icts, fire off-street parking regniremenrs and the off=street loading ractuirenrents, {e) A[lowtNemodiiieationai'feneelreiglrts {dl Attow the rnociiiicatcrt ofyard setbacks trr parcel coverage an; (1) Parttls having a depth ofnhrety,feet ar lese or a widdt ai-thirty-nine feet or'iess; (?) iklonreetiliflear parc~l~-ar roctaiagirlarparcdls an which parallel property tines differ iniength anrinimum o€frs~e foet, (3} Parcefs with atwelve-:and one-hn(f-foot grade differentia( or mare, as measured Tram either any point an the front parcel ine fi any point at the rear parcel lhra, or fmm any point an a side parcci line to any point orrthe oppasirtg side pa>~cel linefi l`l) .Additions to the saute t7oor afari existingbuilding which is naneanformina,as to yard etbaeksavhere such. additirirt i5ilau st(tc line of the existing Uuitdhtg Uut in na etise is closer than four feet to a properh~ lilac, (4) Parcels in the CM District an which relocated structures that are dent€fied on the Historical Resources Survey as ha~iaig z value of 1 through 5D ar Gviiich are determined to Ue historically signiCzoant Uy tfie laandrttar(is Cammissiau are located. rt variance Wray apply only to the relocated' structree (e7 .Pqr projects conforming N7 State density banns guidelines, allotu encroachment into,no more thazr fifteen percent al'ane ide yard-setUaek, and into tfftaen percent of either the front ot~ rear yard setUack, and. except in those zcaiies xhete an increase iti' raree] coverage for'State density bonus projects fsa]ready peemitted, alfitw ata incretrse in parcel coverage U}• no nacre than tern rrcent of parcel area, Itt no case steal] a :rear ; and setUack of less than five feet be altosa~ed; (1) :Allow U€tltlirrgs to exceed district height limits by no more than five 1'cct in one of the,'faliawing situations: (I ~ 1fa parceE has a grade differential of twelvo?and one-haif feet or more, as iiicasured frdm either any point ort the front parcel tiiic to Bury point on the near parcel line, or tiidm any paint on a side parcel trine to any ptihrt on the'apposing side parcel int. °. - (2) 'fo allow an addition tg an existing structurelhat is legally uonepiifornting-as to height providedtlre additiati does not sxcecd the height Iiiie of the existing building; (g) Altaty an :addition to ttu existingtyuitdingthat is legally noncantornaing as to height provided all. of the following criteria rre rnet (l~ Tke addhion does natexceed thelreight line rrf the c~isting building;: {?) "1"he addition does not;excecd rivo;parcent of the total tlaor area of the Uuilding {3} '1"he addition does noC increase locoverage or the overall Footprint of the buikiirig, {-t) `The additioia does notiirerease the density or mtmber of inhabitants or increase iha'iiitensity of use of the Uuldini;, (5} The additiair otherwise aonfonns to the regulations oEthe district-in which it is located, (61 There is no feasible alternative method of attaining the.desired use, {7} T7sere is no substantial adverse impact to adjacent Uuildings, existing streetscape, privacy, War significant increases to tie' ntus andUnik oi'thE Uuitduag (li) tlllo~v the eplacetnent of an existing residential Uui)ding in an [7P District that is legally nonaanforming as to height'. 0~.2~;1E}.(33(ia~gpticability, ~ Pa~c2of"x where the parcel leas a grade differential of twelve and one-Half feet or more, as measured from eitlterauy point pn ha front tercel tine to any paint an the rear }zatcal line, ar front anyrpoint on a side parcel line Co any point on the oppasing side parcel kind ari?vidcct the follaiving criteria are mei. {I} "Fherepkasemetttstraeturedoesitotcxceed_Utelteiglit ineaftheexist€ngbuikting {3} T'he replacement structures daes not increase the deus_ity or square foatage beyand the existing sh•nature or increase the ntensit3= of use ai'fhc building, {3j "fhc replacement structure otherwise conforms to the tcgulation'€rf the distt`ict in whieh it is locsatad. (~} "Fiaere is no substantial adverse impact to adjacent buildings, esstittg streetscape, primacy, nar significant increases to the nassand bull. ot`'dte building; (i} t1JJoty the-ntodifieation of theiequired front yard setback to altaw, in the CNSe of ex€s(ing development, a tletached'garaae' a-ovided all oCihe folkowht~ criteria are tttetT {1) `£he tat is Iess Chan pue hundred feet in depth, (?}' The on-see use is a single-fatuity dwelling„ (3} No alley access is available to flte site; ij3 Allah the.ntodifioation afthe side yard setback Far pi`imary wnclaws in flee OP-?, QP-3 and Q1'-d Districts tvhett th+s mpositian of iheret}atired setback waulil severetyconshain developmetil on the projeot, an alternative setback wauid still satisfy zrivate open space raquiremeiits and maintain privacy For the: acczcpants afthe prajecF, {k) rlitaw atratlditionalStary which'wottld otlient ise not be permitted for an existing residential strctctura pravdett elk ofahe ollotvng criteria a€e tnet: {l} 7`he existing strnetura has a fltYished ftrst floor level that is tnarethan thtea-feet above average natural grade or Chearetical ;tad?:, {2j 'Fhe street frontage'aiut overall massing arecantpatkUle with thegYisting sate and ueighborhaod;context;, {3} The addition does net enlarge file fast floQx ofthe existing resideitce such that a nonoonfoeming: condition is expaneitid; {9j `Fhe overal€ Iteinht ofthe structure with flee additicznal story daes not exceed the heiglif limit in Feet ofthe zoning district n which it i5 located unless <iuThorized ty avariance granted pursuant a subsection (i}(1} ar {~(2} afthis Section far a struettare ocated in the ftl, Ti:2i2, flPt ar OP2 Coning t)istricts, whkit variance uiay bo granted eoncurrerHly with a variance'authariled atusttant to this subsection (k}, {5) the addition otherwise conforms to the regulations of the ctistri;i iu whieh it is located;:; (1} Alkaty the tnadiFication, renovation, or replacement oFitanconforming Guilciing access. features such as stairs, ramps,, leers, batconies,aud windoyvs, or features that prravide shelter aril whieh are located ttC the exterior of the buildings such a$ atvaings;:canapies,; izr covered:tvalkways; provided: (1) 'i`he modiftcatiott, rcnava€ion_orrep€acemeut is no snare intrusive-than. and;does notrCttensify or expand such cxis€ing toncanfartning features, autT {2} `Cite modification, reiigvatiott iir replacetxreiit eitheriinpraves access Co the hnitding at hnproves-the building's aesthetic rppearance: (m) :?Sllow the maditicaYion of ntaxitntrm building height;<ptaximum number of tpries, required s£€backs; maxlttum parcel ~ovu age and Uuik#ing envelcljje requirami;nts: permitted building height projections, pettnitted projections in rec}uirad yard areas .cccss to`;private open specs, and provision of unexeavated ytttd areas contained in#]tls Chapter far projects that indlude the' etcntion and preseraation of adesignated landmark building Qt cantr'buting structure to an adopted Restates District, provided hat alI ofthe faI€otving conditians are tnet and all of the findings of Factcorttained:in Seetton!4,64.20.I O;D~O are made:: {7} The proposed projecFCOnforms°to the Secretary of the interiar's'Standards far the Treatment of Historic Properties; as +rnended-tram tiineto ihne, {2} 'T'he propased project confontts o the allowable land uses permitted in ilte applicable zoning dish let;; {3} `ilre proposed prajectdaes net exceed the raaximwn snit densitv;permitted-in the appticable aanhig district; (<1} 'Ihe propased project fleas net exceed dte lieglrt permitted in the Land Use: Element oFthe General Plan Far t[e _C=i.'(}.I O.U3t) Applicabilt}3. tppJcuble land use uJassifiiatio, 1'a~e 3 ctF3 {`k~ "Phe praJac?sed project does not exceed the maximum Jieight permitted infihe applicable zonin~ilistrietUy more than-ten t'eet. {fij 7"he propiised pro}ectdoes Writ exceec! thetSxaximntli nntnber of'statties pni•[niited in t}ie Land Use )3lenxer~toftlxe Getleri3 '!an for the appJii;able land rtse classi~catian and does noE exceed khe tttaximmn dumber of stories permitted in the applicable zonh};; tJistrict by mare thanc3ne sta)~y, {i) Covered front porabes and s#airs ofa designated laniimark building ar contributing structure to un adopted IFistarie ~istriot`may pro}ect a maximenn oftwelve feet into the reggirezl front yard setback area provided tixat tl3e building fagade {8} The only requiremeutrelated kp the prevision ofprs`vate open space tha# can be modified is the;rec}uirement that private apenspaea be adjaoent to and accessible from, and at the seine approximate elevation, as the primary space of the: dwelling tk[iiG (9)_ Requirements for the prevision-of unexcavated areaix yard areas may only be modified when The strict application'af ruchregetiremerits-would nat`allow for the preservation afth~ Landmark building ar cantri6uting struefure to an adopted I-Iistdric 3tstrict,;(Prior code § 91 13.a; amended;by Ord. No. 1496CCS, adapted-r?I26f8r3; Qid. Jqo. 1 G12CCS § 2; adopted 111[/92; Ordi Va. 16d5CCS § 7; adapted 9f22J92, Ord. No. 1 fi49CCS § 2,'adop#ed 8/10193; Ord. No. 1832GC5 § 3, adopted 1 1.128/95; Ord: Vo. 183~GCS §' 9, adopted I~i12J9>; (7rd. Ito. 184aCC5 § 1, adopted 2/27146; Ord. No. 2052C{:S § J, adopted 1 Qt8102; (?rs#: Vo.22t~6COS § t, adopted f01310fi} Attachment I Variance Application and Determination from 1980 Electronic version of attachment is not available for review. Document is available for review at the City Clerk's office and the libraries. 33 ~' ~~' - Z. A ASE N0. 1{ 3a-i- AT7,A5 N0. ~_ ZONE ~'i rF (For t)spsrlmaof Uw lh1Y~ , c - 2 J_ fr a APPLItATI FR YARIANtE `f~~ TO THE ZONING ADMINISTRATOR: The apptipat(s)._..._.._ BERNARD I~.SEGAL._and ,SNEILA R.__SEGi1L _„~__.......~ ii (Sate whether owner, lessee, purchrseq or agent for any of ehe foregoing. 1! appli<ant is the lesstt, written Dermistion of the record owner must be attached hereto; H the applicant is the agent for any of the foregoing, writtenn authorization must be attached, together with s mpy of the contact to purchax, where appropriate.} 1519 Nilshire Boulevazd o£ property situated at~___..____._...._ ._..~..___.~...._...._...___-._-.__.___.._.____._._Street, (street addroea7 ~~~ Avenue between __..__15th--'----..._..._._~_._.___Stree[___...___._16th.._:~^.____~..._.._.~._..Sereet exec! legal description of said property being__LOt Y 2,!in_ Block,_S5._ of Santa,,,MOnica__...____ . (lake legal dea¢iplfon hom deed or policy of tide lruerancv as per map recorded in Book 3 Pages 80 and 81 and in Book 39 page 45 of Miscellaneous Re cords c.. in the_o£fice of;the.County_Recorder. of .LaS..Engeles_Caun7zY..._._...._..__._..__.---.'--~.._.-----._...-..._....~._..__..._.._._~._. A. Above descrbed Property was acquired by applicant oa_._At33Ltut _,~1,z,,,a,Q~,Q,,,;,___.__~,. taanN, oar. r.art B. What origioa] deed restrictiooa concerning type of improvements permitted, if arty, were placed ov the property iavolred7 Give date said restrictions expire__ None _ (You may attach copy of original printed restricriuns in answtt to this questi~ after properly uaderttoriag those features governing the type and class of uses permitted thereby.) C REQUEST: The applicant requests a variance to USE the above described property for the lollowiag purposes: (Use this span ONLY to seats exactly what is intended to be done on, or with the pro~erty which does not conform with existing zoning regulations. Use space on Page 3 for circumstances pernmrng to this request If a building is involved, a sketth or plan, with phutographit or ether suitable description, should accompany this application.) The property will be-used ass restaurant, open evenings only,. where opera singers would perform works from opera and light opera and outstanding instrumentalists would perform as soloists or in ensemble. Eventually, i£ warranted, brunches may be served on Sundays. The restaurant will have a Pull kitchen and it is contemplated that cocktails as well as beer and wine also will be available. ' For fnrtha particulars retttence is hereby made to that teRain letter, plat, plan, diagram, sketth, pho4agravh. and(or other pertinent data named below, attached hereto and by this rxference made a pan hereof. (Lut iett~eea or other dororvenss ar exhibits to be submitted.) Architect's schematic of___the_property__and__environs Exhibit A. Insert for items lr_2_and 3___on reverse _s ids of._this,~age.~.,;,_ Exhibit B. 1 C ~., NOTE: The Code requires that the mnditipu set forth in the following three Sections 1, 2, and 3 below MUST be ntablished before a Variantt CAM ~ granted. (Explain in detail wherrin your case aorlforntn ro the io3imving requirements.) t. That the strict application of the provisions of Chapter I, Article 1X o[ the Muniripat Code of Santa Monica would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and inimt of this chaptec. See Exhibit "B". 2. That theft are exccptionai circumstances or conditions appliable to the proprrty involved or to the intended use or development of the property tha4 do not apply generally to other property is the sam< none or neighborhood. See Exhibit "B". 3. That the granting of a variance would not be materially detrimental to. the public welfare or mjurioua Yo the property or improvertrcnts in such zone or neighborhood in which the property is located See Exhibit "B". APPLICANT'S AFFIDAVIT STATE OFCALIFORNIA, CITY OF SANTA MONICA, SS: COUNTY OF LOS ANGELES. W°' Bernard I. Segal and Sheila R. Segal ......._....._..._..._..___._..__--.._._..._...._._....._..._ ............. beine duly sworn. depose and say: (Print Name is Fulll we arc That_FW1f the...... own~rs .,--_,,,_.....__......_......_...._ ..................__.__...__._... ....._~. IS~taro whethm owner, lessee, pwehaaer or agent) A'e Onr5eNf5 of the property involved in this appiiution and that ~ have familiarized dt)4Yffi wi;h the rcgniremmts of the Zoning Ordinances in this matter and that the statements and answers herein contained thoroughlq and cont- our plttely to the best of xffi' ability presort the argument is behalf of the appiiwtion huewith presented and that our all statements above referrer to arc in all respects true and correct to the best of qgX lmowtedge~nd belief. ...,.., ..~........a.. ..~.... r ~., Phone No..._~213j-_934-$554 _--- .__.LOS...Enlaales.,..SZt1z.~ ~AA3.5._--_. Mailing Addlem d APpLcast r3 Subscribed and sworn to before me tlns._.!~..r.. day . --•A gA'TiNE$§ 19_80 //~( 1 ~ /'~~_1 • ~ - ' ' nOTARY PUBLIC - CALIr<RNiq , ~!E~Ll~rlisLl.-'Ll-i~`~LJ._._ __ ~ ® L•0.f ANGELES COUntt Notary Public, m Otacmr eutboriaed to edminiatar osdra tsy mms. erpins SEP 15, 1984 This is to certify that 4he fortgoing appiiutian has beet[ inspected by me and and complete in every particular and to conform eo the rules and regulations of t governing the filing of such application Date Reccived_...._...__..., Date of Hearing._..---"---`. - -- - ' By_._._------..-.._. Fo* Ne !>apanma"t o! Citg PleeWVg FINDINGS AND DETERMIPTATION .OF TBE .SANTA MONICA CITY PLANP7ING COMMISSION IPT THE MATTER OF AN APPEAL FROM THE ZONING ADMINISTRATOR'S DENIAL OF A VARIANCE-OF PARKING REQUI_4EMENTS. Z.A: CASE NO. 4321-Y Variance of Parking Requirements 1519 Silshire Boulevard, C4 Bernardand Sheila Segal, Appellants An appeal Having been filed by Bernard I. and .Sheila x, Segal from the Zoning Administrator's denial of a variance of parking requirements for a restaurant at 1519 Wilshire Boulevazd, Santa Monica, and a public hearing having been held on the matter on December 15, 1980 in accordance with the provisions of Section 9145. of Chapter 1, Article IX of the Santa T_,40II].Cd Municipal Coda, the Planning Commission hereby finds as follows: 1. Strict application would result in unnecessary hard- ships inconsistent with the purpose and intent of the Code in that parking will beprovided by lease and no suitable area for purchase exists. 2. There are exceptional circumstances applicable-to this particular property .that do not apply generally to other properties in the same zone ~in that the building, by its unique location and design, is especially suited to the intended use as a-cabaret supper club and in that sufficient available parking exists on nearby lots during evening and weekend hours to avoid .street narking: impact on the neighborhood. 3. The granting of the variance would not be materially detrimental to the public welfare ox-avrrdun:iing nei g2s'?ortwod because the restaurant use must maintain at least eighty available parking spaces in order to continue operating. The City Planning Commission therefore determines that a vaziance to operate a restaurant, supper club or cabaret with entertain- ment of an operatic or classical nature at 1519 Wilshire Boule- vard without providing twenty-seven off-street parking spaces under the same control and ownership should be and is hereby GRANTED subject to the following terms and conditions: 1. That the variance hereby allowed is conditional upon the privileges being utilized within 18G days after the effective date thereof and, if not utilized or construction work is not begun within said time-and cazried on diligently to completion, this authorization shall become void and any privilege or variance granted hereby shall be deemed to have lapsed. 2. That the applicant shall comply with all other~provi- sions of Chapter 1, Article IX, Municipal Code of Santa Monica .and with-all other pertinent ordinances of the City ofSanta Monica. 3_. That the appellants covenant with the City o£ Santa Monica that .the restaurant operation will be closed immedi- ately if and when at least eighty off-streets parking spaces are not available so1~1y for use of the restaurant during hours of operation and not 'Nubject to .being shared by- others, the form ~of such covenant to be prepared and approved by the City Attorney. 4. That the variance shall be granted to the appellants alone for a-period of five years from initial opening, shall not be transferable or assignable without specific ` < _, ;. Z. A. Case No. 4321-Y - Page 2 consent of the City Council and shall be renewable at the end o£ five .years on conditions or~requirements of the Planning Commission. 5. That the operation shall at all times be conducted in a manner not detrimental to surrounding properties by reason o£ noise, lights, activities, congestion or other reason and any violation shall_Se cause £or revocation o£ the variance and ~forfiture of the right to operate. Dated this i5th day of December, 1960 HEREERT , JR., Ch i City Planning Commi ion City of Santa Monica The above action was approved by the following vote: AYES : Cloke, Edwards, Hotchkiss, Kennedy, Sullivan, Katz NAYS :~ None ABSENT: Kle££el _. .., ~PTanning Commission Minutes - b. PUBLIC HEARINGS: A. Appeal: Z.A. Case No. 4321-Y ,_ -3- . _ ~ ~~ December 15, 7980 ~ - ~ . The staff report-concerned an appeal from the determination of the Zoning Administrator derli+ing an application for a variance of parking requirements for establishment of a restaurant with entertainment at 1519 Wilshire Boulevard requested by 6ernard and Sheila Segal,~the appellants. Planning Director Lunsford also noted receipt of a letter supporting the appellants from Eunice Kendig and a fetter in opposition from Monroe'Askins, Sr. Chairman Katz sated receipt of a letter from Josgph Bird Production Company in favor of the matter. Mr. Segalwas present and spoke for his request and distributed pictures to the Commissioners. He~noted that Dr.-and Mrs. Pi1Tae and~Mr. and Mrs. Grieve who'had sent letters in opposition had presen#ed him with another letter withdrawing their earlier objections. Also present to speak in support of the requested restaurant project during the public hearing were: Florence Young, 1142 Sixteenth Street. Mikolay Vishmid, 1138 Sixteenth Street. Ysidro.E. Reyes, 1245 Chelsea Avenue. Dr. Hosney G. Mansour, 1138 Sixteenth Street. Gabe Raphael, 1138 Sixteenth Street, fl. Robert Turner, 253 Eighteenth Street. Ruth Rosen, 30S Alta Avenue. Irene Krementsky, 1138 Sixteenth Street., if3. John Leroi, 2728 Washington Avenue. Oon~Franzen, 947 Eleventh Street. Dale Wendel, 944 Twenty-first Street, pD. Note: Supportin4 corrmunica- tions alsoon file :from: Wayne J. Harnron, 1510 Wilshire Boulevard. Allan E. Kreiger, M.D.; 903 Centinela Avenue. Speaking in opposition: Rose Topes, 3132 Fifteenth Street. Note: Also receiued and on file is a: letter in opposition from John E. and Helene B. Galway. At the hearing's close, Commissioner Edwards asked that Pir. Friedman of Kenny`s Delicatessen at 1433 Wilshire Boulevard come forward regarding the parkiny'situa- tion in relation to his business and the proposed restaurant. Commissioner Cioke moved to permit the restaurant and to grant the appeal subject to compliance with Conditions 2, 3 and 4 listed at the end of the Zoning Administrator's report to the Conmlission with the further stipulation that there 6e no fee for parking. and no amplification bf sound. and that hours of operation be limited to 6:00 p.m. to 2:00 a,m except on Sunday. Seconded by Co`naissioner Kennedy, an amenc5nent proposed by Commissioner Sullivanwas added changing Condition 2 to read: "That the appel- lants cpvenant.with the City of Santa Nonica that the restaurant operation will be closed immediatel.yif and when at least 80 off-street parking spaces all to 6e inq snares by others-are not avaiiabie andin use for parking for the ..:'.The.motion carried.by unanimous vote of the six members-present. _. -7. NEW BUSINESS: Npne. 8. OLD BUSINESS: None. 9. COMMISSION AGENDA: Commissioner Sullivan placed a motion to reconsider the 3 to 3 vote on Item 5E ~~ -before the Commission. Seconded by Chairman Katz, the motionsarried as fdTlows: - AYE: ~ Hotchkiss, Kennedy, Edwards, Sullivan,. Katz NAY: Cioke ABSENT: KTeffel Thereafter, Conmtissioner Sullivan moved to grant a 90 day extension on Item SE of this agenda. Seconded by Chairman Katz> the motion carried as noted: AYE: Hotchkiss, Kennedy, Edwards,.Sul7ivan, Katz NAY: Cioke ABSENT: Kleffel ,2/ts/ s® REPORT OF THE 3ONING ADMINISTRATOR OF THE CITY OF SANTA MONICA ON AN APPEAL FROM THE DETERMINATION TO DENY AN APPLICATION FOR A VARIANCE OF PARKING REQUIREMENTS FOR ESTAB- .' LISHMENT OF A RESTAURANT WITH ENTER-_~~ TAINMENT AT1519 WILSHIRE BOULEVARD ' SANTA MONICA, IN THE C4 DISTRTCT. Z.A.CASE NO. 4321-Y - Variance of Parking Requirements .. 1519 Wilshire Boulevard, C4 Bernard and Sheila Segal, Appellants An appeal from the determination of the Zoning Administrator to deny an application for a variance of parking requirements having been filed on November 3, 1980 by Bernard I. and Sheila K. Segal in accordance-with the provisions o£ Section 9145C of Chapter 1, ArticleIX, of the Santa Monica Municipal Code, the Zoning Admin- istrator~hereby submits the required report to the City Planning Commission. FACTS. In August 1980 the appellants purchased the former Wilshire Funeral .Home at 1519 Wilshire Boulevard in the C4 Dis- trict. The building was originally constructed as a mortuary in 1926 and-two second-floor apartments were added Yen years later. Total grdund floor area is anproximately5,000 square feet. No o£f-street parking is provided. The appellants wish to convert the first floor of the building to a restaurant offer- ing entertai7jmen~, primarily operatic presentations and classical music. Seating capacity will be 135 persons and hours ofopera- tion will be evenings and Sunday matinees. An application for a variance of parking requirements was denied and appealed. APPEAL. At the time of the Zoning Administrator hearing, the applicants demonstrated. no means of providing parking other than use of parking valets and possible leasing of a twenty-four space municipally-owned parking lot at the rear of the building. The. appeal is based to someextent on the leasing o£ an addi- tional eighty-three spaces from two nearby financialinstitutions. CODE REQUIRE.'KENTS. Section 9129F of the Municipal Code requires one off-street parking space for each five seats in a restaurant and Section 9129A requires pazkinq to be under the same owner- ship as the-use it supports. The minimum legal parking for the proposed use would be' twenty-seven spaces. under the same ownership as the restaurant building. - VARIANCE REQUIREMENTS. Section 9145B provides that a variance shall not be granted-unless it is found that strict application ~of the Code would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and .intent o£ the ordinance, that there are-exceptional circumstances or conditions applicable to the property involved or intended use which do not apply generally to other property in the same zone or neighbor- hood and that granting of a variance would not be materially detrimental to the public welfare or surrounding properties. COMMISSION AUTHORITY. Section 9145C provides that on an appeal the Planning Commission may affirm, reverse or modify any deter- mination.of the Zoning Administrator and the action of the Com- mission shall be,final. In making its decision the Commnission is required to make the same findings of hardship,. unusual cir- cumstances and lack-o£ detrimental effects as the Zoning Adminis- trator. FINDINGS. In denying the requested variance, the Administrator " found that there were no unusual circumstances or practical diffi- culties applicable to the subject building that did not apply Z.A.Case No. 4321-Y -2- December."9',.1980 generally to every other building on Wilshire lacking sufficient pazking to support a restaurant and that the proposed reliance on the municipally owned twenty-four parking spaces was woe- fully insufficient for the size and type of use .contemplated. The use o£ parking valets does not provide parking spaces but only a means o£ transferring cars from a point ,of delivery to a parking stall. .:Without adequate parking spaces,_valets must ;'use',eitber`street parking or"poach on someone ~else's~lot. PA.4KING NEEDS. Aside from the minimum legal requirement in the matter of a variance, the actual pazking needs must be considered. While twenty-seven spaces may satisfy the Code, the actual park- ing need for the proposed use is closer to eighty based on one automobile for every two patrons in the restaurant and bar plus at least 15 spaces for the employees and entertainers. This appears to be the minimum number of spaces that would be required to avoid patrons from the restaurant putting an added demand on the limited street parking. PROPOSED PARKING. The appellants proposeto provide a total of 106 parking spaces by leasing evening and weekend use o£ exist- -inq parking from the City's Parking Authority, Faz West Savings, and Security Pacific Bank. The twenty-four space Parking Authority lot is directly behind-the building and the fifty-five space Far West Savings lot is immediately across the alley. The twenty- eight space Security Pacific lot is one block to the west. With proper controls, either attendants or valets, the Far West lot and either of the other two should be minimally adequate i79 or 83) and all three should be entirely adequate. LEASE LIMITATIONS. While the number O£ proposed spaces appears reasonably sufficient, continued availability is extremely goes- tionable. The Pazking Authority lease hasnot yet been considered and could be rejected. The Security Bank lease has a sixty-day cancellation- term~and the Far West agreement has a thirty-day term. Inasmuch as the Far West lot is the essential one in thatthe other two together only provide fifty-two spaces, the proposed parking plan is subject to cancellation upon thirty days .notice. Additionally the owners of Kenny's Delicatessan indicate they have an agreement to use that lot in connection with theii business and do, in fact, employ an attendant on the lot during the day. If' Kenny's is entitled to partial use e£ the Far West lot, the extent of that use must be deducted from the amount allegedly available for the appeallants' proposal. It would seem that a need of twenty to thirty spaces for the 100 seats in Kenny's would not be unreasonable. The availability o£ the Far West Lot to the appellants may be nearer to thirty spaces than fifty-five. ANALYSIS. Review.of the proposed parking solution indicates it is probably workable-provided adequate guarantees can be imposed to assure that sufficient parking remains available toconduct the business without adding to the existing street burden. Double use of existing parking by day and nighttime businesses is not inconsistent and represents a means of maximizing avail- able parking. While the proposed parking plan is probably numerically suffi- cient, it simply does not provide adequate assurance that it will continue to be so. It is,. in fact, only a thirty-day guarantee. To permit establishment of the proposed use on the strength o£ a pazking least cancellable in thirty would be poor zoning practice. ~BOth the Far West and Security Bank leases are too subject to changes in plans or personnel to be relied upon'and the City parking is insufficient without the others. A further consideration is that the adjoining Big 5 store will be moving to Wilshire Boulevard and Franklin Street and this Z.A.Case No. 4321-Y ~ -3 ~ December 9, 1980 building will have a new use. They could conceivably attempt to secure use of either lot by c£fering Far 4dest or Security Bank mole for the use of the lots.. SUMMARY AND RECOMMENDATION. Analysis of tfie proposed plan indicates that granting the vaziance would be-contrary to good zoning practice, not in the public interest; practical difficulties or unusual circumstances not applicable to similar properties do not exist and granting the variance would be inconsistent with the purpose o° the parking provisions of the ordinance.. It is therefore respectfully-submitted that the-determination of the Zoning Administrator was proper and in accordance with good zoning practice and should be upheld. In the event the Commission believes sufficient assurance exists to sustain the variance, it is respectfully recommended that the following be made conditions of any variance: 1. That clear, indisputable and non-cancellable leases - £or 80 parking spaces be obtained for a term of at least 5 years following opening of the restaurant, all spaces to be available solely for use of the restaurant during hours of operation and not subject to being shared by others. 2. That the appellants covenant with the City of Santa Monica that the restaurant operation will be closed immedi- ately if and~wkien at least 80 parking spaces in the three parking lots are not available and in use for parking for the restaurant, the form of such covenant to be prepared and approved by the City Attorney. 3. That the variance shall be granted to the appellants alone for a period of 5 years from initial opening, shall not be transferable or assignable without specific consent of the City Council and shall be renewable at the end-o£ 5 years on conditions or requirements-o£ the Planning Commission. 4. That the operation shall at all times be conducted in a manner not detrimental to-surrounding properties by reason of noise, lights, activities, congestion or other season and any violation shall be cause. for revocation of the variance and forfiture of the right to operate. Respectfully submitted December 9, 980 ames unsfor Director of Planning JL:lk