ITEM 8-C

City Council Meeting 3-28-95           Santa Monica, California

TO:       Mayor and City Council

FROM:     City Attorney

SUBJECT:  ORDINANCE OF THE CITY OF  SANTA MONICA REQUIRING DRIVE-
          IN, DRIVE-THROUGH AND FAST FOOD RESTAURANTS LOCATED
          ADJACENT TO RESIDENTIALLY ZONED PROPERTIES TO OBTAIN A
          CONDITIONAL USE PERMIT FOR DRIVE-UP WINDOWS HOURS OF
          OPERATION ON AN INTERIM BASIS;

          RESOLUTION OF INTENTION DIRECTING PLANNING COMMISSION
          TO INITIATE AN AMENDMENT TO THE ZONING ORDINANCE TO
          REGULATE HOURS OF OPERATION FOR DRIVE UP WINDOWS OF
          EXISTING DRIVE-IN, DRIVE-THROUGH AND FAST FOOD
          RESTAURANTS LOCATED ADJACENT TO RESIDENTIALLY ZONED
          PROPERTIES AS OF MAY 1, 1998  

At its meeting on February 14, 1995, the City Council directed
the City Attorney's Office to draft an ordinance phasing out in
three years any  drive-up window operations of drive-in, drive-
through or fast food restaurants located adjacent to
residentially zoned properties ("drive-through restaurants"); and
requiring existing drive-through restaurants which operate
without a conditional use permit or development review permit to
apply, within sixty days,  for a conditional use permit for
operation of a drive-up window between the hours of 10 p.m. and 7
a.m.
  
The Council's direction may best be accomplished through two
actions; one dealing with existing drive-through restaurants
which operate without permits, and one dealing with existing
businesses which are specifically permitted to operate during the
proscribed hours. Therefore, the following is presented for
Council consideration:

     1.  An interim ordinance which prohibits drive-through
restaurants without current permits from operating a drive-up
window between the hours of 10 p.m. and 7 a.m. unless such
business has applied for a conditional use permit.  The scope of
the Planning Commission hearing, or Council hearing on appeal,
would be limited to whether the applicant should be authorized to
operate the drive-up window at any time between the hours of 10
p.m. and 7 a.m., and any conditions appropriately related to the
impact of drive-up window operation during those hours.  The
interim ordinance also provides that any conditional use permit
issued will require drive-up windows operations between 10 p.m.
and 7 a.m. to cease entirely as of May 1, 1998.  


     2.  A Resolution of Intention directing the Planning
Commission to initiate an amendment to Municipal Code Section
9.04.14.090, containing the special conditions for drive-through
restaurants.  The proposed amendment would provide that, as of
May 1, 1998, the prohibition on operating between 10 p.m. and 7
a.m.  apply to the drive-up window operations of businesses with
existing permits. 
     
The Council's direction differs somewhat from the approach
analyzed in the February 14, 1995 City Attorney Staff report to
the City Council.  However, the legal concerns raised in that
staff report regarding possible "vested rights" claims which may
arise from unilateral modification of the terms of existing
permits would also apply to the ordinance modification  presented
tonight.  A similar claim may also be made concerning the
imposition of a conditional use permit requirement on existing
legal nonconforming uses.  This Memorandum does not repeat those
concerns.   

RECOMMENDATION

It is respectfully recommended that the Council:

1.  Introduce for first reading the accompanying interim
ordinance.

2.  Adopt the accompanying Resolution of Intention directing the
Planning Commission to initiate an amendment to the Zoning
Ordinance.

PREPARED BY:   Marsha Jones Moutrie, City Attorney
               Mary H. Strobel, Deputy City Attorney