(m) The Planning Commission (or City Council on appeal) may modify subsections (d), (e), and (g) of this Section for existing legal nonconforming neighborhood markets seeking to extend or renew conditional use permits pursuant to Section 9.04.18.040(h) if all of the following findings of fact can be made in an affirmative manner:

(1) That the use has been in continuous operation since the effective date of the Zoning Ordinance (September 8, 1988);

(2) That the strict application of the provisions of this Chapter would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of this Chapter or that there are exceptional circumstances or conditions applicable to the proposed development that do not apply generally to other developments covered by this Chapter;

(3) That the granting of a modification would not adversely affect surrounding properties or be detrimental to the district’s residential-oriented environment.

Notwithstanding the granting of an extension or renewal of a conditional use permit, the neighborhood market shall remain a legal nonconforming use subject to Section 9.04.18.030 and as a nonconforming use, it shall be permitted to continue only so long as the use remains substantially the same type of use as the use of the property on the effective date of the Zoning Ordinance and the basic operational features of the use and its impact on the neighborhood are not altered.

SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such

inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.

SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective thirty days after its adoption.

APPROVED AS TO FORM:

_________________________

MARSHA JONES MOUTRIE

City Attorney

F:\ATTY\MUNI\LAWS\BARRY\03TA004market.wpd

ATTACHMENT B

NOTICE OF PUBLIC HEARING

NOTICE OF A PUBLIC HEARING

BEFORE THE SANTA MONICA CITY COUNCIL

SUBJECT: Ordinance for Introduction and First Reading to amend Santa Monica Municipal Code Section 9.04.14.080 to Allow the Planning Commission, or City Council on Appeal, to Modify the Special Conditional Use Permit standards for existing non-conforming Neighborhood Markets.

APPLICANT: Alice Berkowitz

WHEN: Tuesday, July 8, 2002 at 6:45pm

WHERE: City Hall Council Chambers

1685 Main Street

Santa Monica, California

PROJECT DESCRIPTION

The City Council will conduct a public hearing to consider Amendment of Santa Monica Municipal Code (SMMC) Section 9.04.14.080. The proposed amendment to the Zoning Ordinance, Text Amendment (TA) 03-004, would allow the Planning Commission, or City Council on appeal, to modify the special conditional use permit standards for existing non-conforming neighborhood markets on a case-by-case basis. The proposed Zoning Ordinance amendment affects all existing neighborhood markets that are located in a residential district.

HOW TO COMMENT

You may comment at the City Council public hearing, or by writing a letter. Written information received before 3:00pm on the Wednesday before the hearing will be given to the City Council in their packet. Information received after that time will be given to the City Council prior to the meeting.

Address your letters to: City Clerk

Re: TA 03-004

1685 Main Street, Room 102

Santa Monica, CA 90401

MORE INFORMATION

If you want additional information about this project, please contact Associate Planner Bruce Leach, at (310) 458-8341 or via e-mail at bruce-leach@santa-monica.org. Information is also available on the City’s web site at www.santa-monica.org. The meeting facility is wheelchair accessible. For disability-related accommodations please contact (310) 458-8341 or (310) 458-8696 TTY at least 72 hours in advance. All written materials are available in alternate format upon request. Santa Monica Bus Lines 1, 2, 3 and 7 serve City Hall.

Pursuant to California Government Code Section 65009(b), if this matter is subsequently challenged in Court, the challenge may be limited to only those issues raised at the Public Hearing described in this notice, or in written correspondence delivered to the City of Santa Monica at, or prior to, the Public Hearing.

ESPAÑOL

Esto es una noticia de una audiencia pública para revisar applicaciónes proponiendo desarrollo en Santa Monica. Si desea más información, favor de llamar a Carmen Gutierrez al número (310) 458-8341.

APPROVED AS TO FORM:

_________________________

Jay M. Trevino, AICP

Planning Manager

F:\PLAN\SHARE\COUNCIL\NOTICES\03TA004marketStd.doc

ATTACHMENT C

PLANNING COMMISSION STAFF REPORT – APRIL 2, 2003

CP: JT:AS:PF:BL:f\plan\share\pc\strpt\02CUP001market Santa Monica, California

Planning Commission Mtg: April 2, 2003

TO: The Honorable Planning Commission

FROM: Planning Staff

SUBJECT: Text Amendment 03-004

Conditional Use Permit 02-001

Address: 2331 Fourth Street

Applicant: Alice Berkowitz

Property Owner: The Estate of Mitilda Filous

INTRODUCTION

Action: Application for a Conditional Use Permit (CUP) to allow the continued use of an existing nonconforming neighborhood grocery store in a residential district. The conditional use permit that allowed the nonconforming neighborhood grocery store to operate for a limited term has expired, and a new permit is required. However, the market is inconsistent with Municipal Code requirements for neighborhood markets which prevents approving a new CUP. The proposed amendment to the Zoning Ordinance, Text Amendment (TA) 03-004, would allow the Planning Commission to modify the special conditional use permit standards for neighborhood markets on a case-by-case basis.

Recommendation: Staff recommends that the Planning Commission take the following actions:

1. Recommend approval of Text Amendment 03-004 to the City Council; and

2. Approve Conditional Use Permit 02-001, subject to Council approval of the Text Amendment.

Permit Streamlining Expiration Date: Not applicable to projects requiring a text amendment.

SITE LOCATION AND DESCRIPTION

The subject property is a 5,608 square foot parcel located on the northeast corner of the Fourth Street and Hollister Avenue. Surrounding uses consist of:

· North, Multi-family units in the OP-2 (Ocean Park Low Multiple Family) District;

· South, Multi-family units in the OP-2 (Ocean Park Low Multiple Family) District;

· East, Multi-family units in the OP-2 (Ocean Park Low Multiple Family) District; and

· West, across 4^th Street, Mary Hotchkiss Park in the OP2 and DP (Designated Parks) Districts.

Zoning District: OP2, Ocean Park Low Multiple Family District

Land Use District: Medium Density Housing

Parcel Area: 60’ x 93.47’ = 5,608 square feet

PROJECT DESCRIPTION

The applicant requests TA 03-004 and CUP 02-001 to allow an existing nonconforming neighborhood grocery store in the OP2 District to continue operating. The conditional use permit that allowed the nonconforming neighborhood grocery store to operate for a limited term expired on May 17, 1997. Santa Monica Municipal Code (SMMC) Section 9.04.18.040(h) allows the Planning Commission to extend or renew the Conditional Use Permit to allow the neighborhood market use to continue even if the prior limited term CUP has expired, but only if all of the findings set forth in SMMC Section 9.04.20.12.040 can be made in an affirmative manner. The proposed Text Amendment is contained in Attachment A.

However, the market is inconsistent with SMMC Section 9.04.20.12.040(k) because the project does not conform with building setbacks required in the OP-2 District. Accordingly, one of the CUP findings cannot be made in an affirmative manner and the CUP cannot be approved unless the Zoning Ordinance is amended. Consequently, the applicant requests an amendment to the Zoning Ordinance that would allow the Planning Commission, or City Council on appeal, to modify standards for markets on a case-by-case basis. The applicant also requests the related modification from side yard setback requirements. The market currently has five off-street parking spaces, but eight spaces are required. Although the project can comply with parking requirements by paving the lot behind the building, staff recommends replacing one of the parking spaces with a trash and recycling enclosure. Converting one parking space to a trash enclosure would require a parking modification for seven spaces, in-lieu of eight off-street parking spaces.

MUNICIPAL CODE AND GENERAL PLAN CONFORMANCE

Subject to the City adopting the proposed text amendment and the Planning Commission approving a modification allowing the existing side yard setback to continue, the proposed project is consistent with the Municipal Code and in conformity with the General Plan as shown in Attachment B.

CEQA STATUS

The project is categorically exempt from the provisions of CEQA pursuant to Section 15301, Class 1 of the State Guidelines for Implementing the California Environmental Quality Act in that the project would allow the continued use of a residentially zoned property for a commercial neighborhood grocery store which would involve no expansion of use.

HISTORIC RESOURCES INVENTORY STATUS

The existing building on the project site was constructed in 1925 and is not identified in the City's Historic Resources Inventory.

RENT CONTROL STATUS

Commercial Exempt

FEES

The project is not subject to any special fees.

PUBLIC NOTIFICATION

Pursuant to Municipal Code Section 9.04.20.20.080 and in accordance with the posting requirements set forth by the Zoning Administrator, prior to application filing the applicant posted a sign on the property regarding the subject application. At least 8 weeks prior to the public hearing date, the applicant submitted a photograph to verify the site posting and to demonstrate that the sign provides the following information: Project case number, brief project description, name and telephone number of applicant, site address, date, time and location of public hearing, and the City Planning Division phone number. A copy of the site posting photograph is contained in Attachment C. It is the applicant's responsibility to update the hearing date if it is changed after posting.

In addition, pursuant to Municipal Code Section 9.04.20.22.050, notice of the public hearing was mailed to all owners and residential and commercial tenants of property located within a 500 foot radius of the project and published in the “California” Section of The Los Angeles Times at least ten consecutive calendar days prior to the hearing. A copy of the notice is contained in Attachment D.

On February 28, 2003, the applicant was notified by phone and in writing of the subject hearing date.

The applicant Posted signs inside the market to solicit support from customers that live in the neighborhood. The applicant has submitted a petition supporting the request. The petition is contained in Attachment F.

ANALYSIS

Background

This neighborhood grocery market use has been granted two previous CUPs to allow the use to continue in the residential district:

CUP 196 9/24/1973 to 9/24/1983
CUP 322 5/17/1982 to 9/24/1998

In 1929, the parcel on which the neighborhood grocery store is located was zoned Class C, “business.” The parcel was subsequently rezoned to the R3 District, which did not specify neighborhood grocery stores as a permitted use. Records are not available to determine when the original use was established, however based on its location and Los Angeles County Assessor records, it is likely that a market has occupied the commercial building since the building was constructed in 1925. In 1948, the City Council adopted an ordinance requiring all commercial uses in residential districts to be removed in 25 years (1973). As a result of this ordinance, in 1973, the owner of the grocery store applied for a conditional use permit, pursuant to SMMC Section 9148, which provided that the Planning Commission may grant a conditional use permit to extend the amount of time non-conforming uses could operate. On September 24, 1973, the Commission approved a conditional use permit (196 U.P) for a ten year extension to allow the grocery store to continue operating until 1983. On May 17, 1982, the Planning Commission approved another conditional use permit (322 CUP) to allow the grocery store to continue operating for an additional fifteen years, with the following conditions:

That the use shall continue to be limited to that of a neighborhood food market carrying a full line of grocery items.

That all signs other than the projecting “Market” sign, wall sign identifying the market be removed or painted out, including those in the windows and the parking sign in the parking lot.

That landscaping, employing materials at least 3.5’ high at the time of planting, be installed along the northerly and southerly ends of the front parking lot, the adequacy of which to be approved by the Zoning Administrator.

That the premises shall be maintained in an acceptable state of repair and maintenance, including the landscaping and fencing for the term of the Conditional Use Permit.

That no business license be renewed or issued to any owner until the above conditions have been met.

That the owner and operators and all their assigns, employees or agents shall obey all laws and ordinances, particularly those relating to the sale of alcoholic beverages and conviction for violation of such laws shall be cause for revocation of this permit and forfeiture of all rights included therein.

That only 20% of the shelf area may be stocked with beer and wine and that no hard liquor will be permitted.

The approval for this conditional use permit expired on May 17, 1997. The applicant applied for CUP 02-001 on November 16, 1999. TA 03-001 was filed on January 28, 2003.

Code Enforcement

The permit holder is, or has recently violated conditions of CUP 322. The following violations have been filed with the City Code Compliance Division and the applicant was advised to abate them on February 12, 2003:

Based on the submitted floor plan of the building and a recent site visit, it appears that at least 25% of the store inventory is devoted to beer and wine display. CUP 322 limits alcohol to 20% of the shelf area;

The permit holder has installed numerous signs without Architectural Review Board (ARB) approval or permits. The painted “Market” wall sign and projecting “Market” sign are the only approved signs;

The approved landscaping between the grocery store and parking lot has not been maintained and has been removed and the landscape area is being used to store soft drink palettes and two small storage cabinets; and

Used store displays, fixtures and junk equipment are being stored in the yard behind the building.

Staff inspected the property on March 19, 2003. Except for the landscaping violations noted above, all violations were abated. However, since staff recommends upgraded landscaping compared to the previous design, installation of landscaping that would likely not be unusable in the upgraded design would not be practical. No further enforcement action was taken pending Planning Commission action.

Text Amendment

Santa Monica Municipal Code (SMMC) Section 9.04.18.040(h) allows the Planning Commission to approve a new Conditional Use Permit to allow the neighborhood market use to continue, but only if all of the findings set fourth in SMMC Section 9.04.20.12.040 can be made in an affirmative manner. Because the project is inconsistent with the building setbacks required for neighborhood markets that are specified by SMMC Section 9.04.14.080(d), the CUP finding related to compliance with Code requirements cannot be made in an affirmative manner. Further, Section 9.04.18.040(g), which allows neighborhood serving uses in existence since 1982 to remain, is not applicable because their provision relates only to such uses that was not permitted through a CUP.

The proposed amendment to the Zoning Ordinance would authorize the Planning Commission, or City Council on appeal to modify development standards required by SMMC Section 9.04.14.080 for neighborhood markets on a case-by-case basis, provided the Commission can make appropriate findings. The findings required to grant a modification must demonstrate that the modification is necessary, justified and will be compatible with neighboring development. Staff supports the proposed text amendment because it gives the Planning Commission additional authority to consider the merits of allowing an existing legal-nonconforming neighborhood market to continue. The mandatory findings provide a mechanism to insure that the modification would not negatively impact adjacent neighbors or the character of the neighborhood. The proposed text amendment would be added to SMMC Section 9.04.14.080 following Subsection (l) as follows:

The Planning Commission (or City Council on appeal) may modify Subsections (d), (e) and (g) of this Section if all of the following findings of fact can be made in an affirmative manner: (1) That the use has been in continuous operation since the effective date of the Zoning Ordinance (September 8, 1988);

(3) That the granting of a modification would not adversely affect surrounding properties or be detrimental to the district's residential-oriented environment.

Not only would the legislative history underlying the recent amendment of Subsection (h) of Section 9.04.18.040 demonstrate City Council support for continuation of long term neighborhood markets, there may be legal impediments to requiring that the market close. First, the decision whether to allow the continuation of this market could be subject to heightened judicial scrutiny since this business has been in operation for at least 50 years, was granted a CUP, and this CUP has been extended on several occasions based on findings that the use was being undertaken in accordance with good zoning practice, in the public interest and consistent with the General Plan. See Goat Hill Tavern v. City of Costa Mesa, Cal. App. 4^th 1519, 8 Cal. Rptr. 2^nd 385 (1992). Second, Government Code Section 23790 protects the vested rights of proprietors of businesses engaged in the lawful, licensed sale of alcoholic beverages and the right of such businesses to continue to lawfully dispense alcoholic beverages.

Conditional Use Permit

The term of the existing CUP cannot be extended because the Zoning Ordinance no longer allows for durational permits. As discussed, Santa Monica Municipal Code (SMMC) Section 9.04.18.040(h) allows the Planning Commission to approve a new Conditional Use Permit to allow the neighborhood market use to continue even if the prior limited term CUP has expired, but only if all of the findings set fourth in SMMC Section 9.04.20.12.040 can be made in an affirmative manner. However, since the project is inconsistent with the building setbacks required for neighborhood markets that are specified by SMMC Section 9.04.14.080(d), the CUP finding related to compliance with Code requirements cannot be made in an affirmative manner. Consequently, the CUP cannot be approved unless the market is either 1) made to comply with the special standards for neighborhood markets (SMMC Section 9.04.14.080), or 2) the Planning Commission approves a modification to setback requirements pursuant to TA 03-004. The existing building would need to be 6’-3” from the north side and 10’ from the south (Hollister Avenue) side yard property line to comply with setback requirements. This would result in a reduction of 27% in the building’s floor area.

The following special conditions were adopted by the City to mitigate negative impacts typically created when this type of commercial establishment is located in a residential district. Although they were adopted for new projects, existing markets must comply with these standards if they wish to continue beyond the life of their limited term CUP. The following section analyzes how the subject neighborhood grocery store complies, or does not comply with these conditions.

Location. No neighborhood grocery store shall be located within three hundred linear feet of an adjacent commercial district in which similar facilities are located.

Complies - The existing grocery store is located approximately 775 feet from the nearest commercial district, which is that portion of the CM2 (Main Street Commercial) District located west of the project. Another neighborhood grocery store, the Fair Market, is located approximately 480 feet north of the subject grocery store at 2225 Fourth Street, also located in an OP2 District.

Structure. A neighborhood grocery store shall be operated completely within an enclosed building. The store shall be located on the ground floor and shall count as a residential unit for the purpose of calculating the unit density permitted on a parcel. The store “unit” may not be used for residential purposes.

Must comply - The existing grocery store is not currently operating within an enclosed building. Two storage cabinets and soft drink shipping palettes are stored between the parking lot and the front of the building. In addition, used store displays, fixtures and junk equipment are being stored behind the building. The application plans indicate that the outside storage will be removed to comply with this requirement and to provide additional parking. Condition 13 has been added to insure compliance in the future. The structure in which the grocery store is located is freestanding and one-story. No other uses are located on the site.

Height, Setback and Parcel Coverage. A neighborhood grocery store shall comply with the height, setback and parcel coverage requirements for the residential district in which it is located. If the store is contained in a structure that includes other uses, no portion of the remaining portion of the structure in which the store is located shall exceed the height, setback and parcel coverage requirements for the residential district.

Non-compliant - The property development standards for the OP2 District and how the project complies are as follows:

Property Development Standard	Requirement	Provided
Building Height	23’ for flat roof, 30’ for pitched roof	20’-6”
Parcel Coverage	50%	42%
Front Yard Setback	20’ or 15’ if average setback of adjacent dwellings is 15’ or less	30’-6”
Rear Yard Setback	15’	21’
Side Yard Setback (Street)	10’	0’ (at pL)
Side yard Setback (Interior)	6’-3”	0’ (at pL

The grocery store building’s side yard setback does not comply with OP2 District requirements.

Parking. A minimum of two off-street parking spaces shall be provided for employees of the store. In addition, if the neighborhood grocery store exceeds six hundred square feet, an additional parking space shall be provided for each additional three hundred square feet or a portion thereof.

Complies - The neighborhood grocery store contains 2, 262 square feet in floor area, and requires 8 parking spaces (2 spaces + (2,262 s.f. – 600 s.f.) / 300 s.f.). Eight parking spaces would be provided, including 5 spaces in the front of the store and three spaces in the rear of the building. One of the front spaces would also be used as a delivery loading space. Transportation Management has approved the proposed parking design.

Passenger Loading. One on-street passenger loading zone shall be located adjacent to the parcel near the entrance to the store for use by customers who arrive by automobile.

Complies - One passenger loading area is provided on Hollister Avenue, adjacent to the grocery store.

Off-street Loading. One off-street loading area may be used for parking by store customers. Loading and unloading for store merchandise shall be permitted only between 8:30 a.m. and 9:00 p.m.

Complies - An 11’ x 20’ loading space, shared as a parking space for store customers, is located in the northernmost portion of the front parking lot and complies with size requirements for loading spaces.

Lighting. Lighting shall comply with SMMC Section 9.04.10.02.270, which states that all outdoor lighting associated with commercial uses shall be shielded and directed away from surrounding residential uses. Such lighting shall not exceed .5 footcandles of illumination beyond the property containing the commercial use and shall not blink, flash, oscillate or be of unusually high intensity of brightness.

Complies - The project appears to comply with lighting requirements.

Hours of Operation. The store shall be open for business only between 8:00 a.m. and 9:00 p.m.

Must comply - The neighborhood grocery store is currently open from 7:00 a.m. until 12:00 a.m. midnight. However, the market must close at 9:00 p.m. if CUP 02-001 is approved. If approved, the store hours must be reduced to comply with SMMC Section 9.04.14.080(i), see Condition 18.

Maximum Size. No neighborhood grocery store shall exceed 3,000 square feet.

Complies - At 2,262 square feet, the existing grocery store complies with this requirement.

Alcohol Sales. No neighborhood grocery store shall be permitted to sell alcoholic beverages.

Legal-nonconforming - The grocery store was operating with a Type-20 (Off-sale Beer and Wine) alcohol license prior to the City requiring conditional use permit and special standards for alcohol outlets. Because this alcohol use has been in continuous operation and no change in mode of operation is occurring, a conditional use permit is not required for alcohol sales and the standard alcohol conditions cannot be applied to this use. While the alcohol license is not a part of the requested approvals, denial of the grocery store CUP would also terminate alcohol sales at this location.

However, CUP 322 restricted the license to a beer and wine and display space is limited to no more than 20% of total shelf space. Since new neighborhood grocery stores are not permitted to sell alcohol, the type of license and amount of alcohol display space is limited to the amount of beer and wine display space in the previously approved conditional use permit. As noted in the Code Enforcement section, over 25% of the stores inventory was devoted to alcohol products during a site inspection. The applicant believed that they were in compliance because less than 20% of the floor area was devoted to beer and wine. Beer and wine inventory has been reduced to comply with CUP 322.

Deliveries. Deliveries shall be permitted only between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday.

Complies - Condition 19 requires deliveries to take place only during the permitted hours.

Additional Requirements

The proposal does not provide a trash and recycling enclosure, and the parking lots only provide a wood fence to buffer noise from the commercial enterprise from the adjacent residential units. Although the special CUP conditions prescribed by SMMC Section 9.04.14.080 do not require a trash enclosure or property line fencing, SMMC 9.04.18.040(f) provides that the “Planning Commission (or City Council on appeal) may impose such conditions as may be deemed necessary to protect the public health, safety, and general welfare and secure the objectives of the General Plan, including conditions designed to insure compatibility of the existing commercial or industrial use with neighboring residential uses.” Given the significant quantity of trash and garbage generated by grocery stores, staff believes that a trash/recycling enclosure that conforms to current standards is needed. A parking modification is needed to install a trash/recycling enclosure because there is insufficient area behind the building without displacing one parking space. In addition, a six-foot high block wall should be provided along the interior property lines to buffer negative noise impacts and improve privacy to adjacent residential units. Staff has added Conditions 21 and 22 to address these issues.

Police Department Comments

The Police Department has no law enforcement concerns regarding the continued operation of this neighborhood grocery store.

Neighborhood Compatibility

As previously stated, the neighborhood grocery store has operated at this location for more than 50 years. Community and Cultural Services has no concerns regarding the operation of the grocery store, which is across Fourth Street from Mary Hotchkiss Park. A petition from patrons of the grocery store has been submitted supporting the continuation of its operation (Attachment E). However as discussed above, the market does not comply with City standards necessary to insure compatibility of the commercial use with neighboring residential uses. The project lacks a trash and recycling enclosure and block walls along the interior property lines to buffer negative noise that is generated by the commercial use and parking lot from negatively impacting adjacent residents.

The commercial building has some Mediterranean features that are consistent with the Ocean Park Neighborhood Design Guidelines and its architecture is generally compatible to the neighborhood context. However, the installation and style of the existing exterior lighting and window bars are not consistent with City design standards. Relatively minor façade work, such as removing the exterior electrical conduit and window bars and installing decorative exterior lighting fixtures would restore the building’s architectural theme and be consistent with the neighborhood character. Staff has added Condition 24 to address this issue.

ALTERNATIVES

Other than the recommended action, the Planning Commission may:

Deny CUP 02-001 and recommend the City Council deny TA 03-001 based upon revised findings and conditions; or

Continue to a date certain to consider additional options or information.

Conclusion

Although the neighborhood market has a limited term CUP that has expired, the Zoning Ordinance provides that the use can be continued if the Planning Commission determines the market complies with current standards for neighborhood markets and is compatible with neighboring residential uses. The neighborhood market can comply with all City standards except building setbacks from the north and south side yards. Subject to the approval of TA 03-001, the Planning Commission may modify the side yard setback, which would allow the approval of CUP 02-001.

The neighborhood grocery store has served the surrounding neighborhood for a long period of time and appears to have significant support from the neighborhood as demonstrated by the petition. However, additional conditions and property upgrades are necessary to insure compatibility of the existing commercial use with neighboring residential uses. The project lacks a trash enclosure and property line walls that are necessary to protect the public health, safety, and general welfare and secure the objectives of the General Plan. Minor upgrades to the building’s façade are needed to be consistent with the neighborhood character. A parking modification is needed to install a trash/recycling enclosure because there is insufficient area behind the building.

RECOMMENDATION

It is recommended that the Planning Commission:

1. Recommend the City Council adopt TA 03-001; and

2. Approve CUP 02-001 based on the following findings, conditions and subject to the City Council approving TA 03-001:

TEXT AMENDMENT FINDINGS

1. The proposed amendment is consistent in principle with the goals, objectives, policies, land uses, and programs specified in the would authorize the Planning Commission, or City Council on appeal to modify development standards required to allow existing neighborhood markets to continue operating in residential districts, providing the Commission can make findings that the modification is necessary, justified and will be compatible with neighboring development. Since the third finding focuses on insuring that the granting of a modification would not adversely affect surrounding properties or be detrimental to the district's residential-oriented environment, the proposed amendment is consistent with the adopted General Plan, specifically; Land Use Element Objective 1.2, which states “Ensure compatibility of adjacent land uses, with particular concern for protecting residential neighborhoods.”

2. The public health, safety, and general welfare require the adoption of the proposed amendment, in that the amendment allows the Planning Commission to modify the Special Standards for existing neighborhood markets only to allow the continuation of these neighborhood serving uses when hardships can be demonstrated and the use will not adversely impact surrounding residential areas. The amendment incorporates findings that requires evidence that the requested modification will be compatible with neighboring development and will not adversely effect surrounding properties or be detrimental to the district's residential-oriented environment.

MODIFICATION FINDINGS

1. That the use has been in continuous operation since the effective date of the Zoning Ordinance (September 8, 1988), in that the market has been in continues operation since 1948.

2. That the strict application of the provisions of this Chapter would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of this Chapter or that there are exceptional circumstances or conditions applicable to the proposed development that do not apply generally to other developments covered by this Chapter, in that the market building complied with development standards when it was constructed in 1925. In order to comply with current setback requirements, the existing building would need to be 6’-3” from the north side and 10’ from the south (Hollister Avenue) side property line. This would result in a reduction of 27% in the building’s floor area. Reducing the building’s floor area, which also reduces the amount of inventory available to customers by 27% represents an unreasonable hardship. The costs associated with demolishing and reconstructing both ends of the building would also be substantial. A trash / recycling enclosure is needed and should be located behind the building. However, a parking modification is needed to install a trash/recycling enclosure because there is insufficient lot area to comply with parking and provide a trash enclosure. The project can provide a trash enclosure and seven parking spaces.

3. That the granting of a modification would not adversely affect surrounding properties or be detrimental to the district's residential-oriented environment, in that the commercial building’s Mediterranean features are consistent with the Ocean Park Neighborhood Design Guidelines and as conditioned, it is compatible to the neighborhood context. In addition, the neighborhood grocery store is a neighborhood serving use, has served the surrounding neighborhood for a long period of time and has significant support from residents of neighborhood.

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, subject to City Council adoption of TA 03-001, the Zoning Ordinance allows existing neighborhood grocery stores in residential districts with the approval of a Conditional Use Permit. Subject to the Planning Commission modifying side yard setback requirements pursuant to TA 03-001, the project complies with the special standards for neighborhood grocery stores.

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 neighborhood grocery store has been in operation for over 50 years and serves the surrounding area. Although the market does not currently comply with neighborhood market standards, the project can be upgraded to comply with standards and conditions necessary to insure that the commercial use is compatible with neighboring residential uses and to protect the public health, safety, and general welfare.

3. The subject parcel is physically suitable for the type of land use being proposed, in that the subject project can be upgraded to comply with pertinent standards and conditions necessary to insure that the commercial use is compatible with neighboring residential uses.

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 neighborhood grocery store is an existing commercial use, which has been located at the site for more than 50 years and provides a neighborhood serving use in a residential district. No other uses are located on the site.

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 neighborhood grocery store is an existing commercial use which has been located at the site for more than 50 years. Although the market does not currently comply with neighborhood market special standards, the project can be upgraded to comply with standards and conditions necessary to insure that the commercial use is compatible with neighboring residential uses and to protect the public health, safety, and general welfare.

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 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 site has street frontage on Fourth Street and Hollister Avenue. In addition, the neighborhood market is within walking distance for a large residential population and has adequate on-site parking to accommodate customers.

8. Subject to the City Council adopting TA 03-001, the physical location or placement of the use on the site is compatible with and relates harmoniously to the surrounding neighborhood, in that although the market does not currently comply with neighborhood standards, the project can be upgraded to comply with standards and conditions necessary to insure that the commercial use is compatible with the neighborhood.

9. The proposed use is consistent with the goals, objectives, and policies of the General Plan, in that the proposed use is neighborhood serving while preserving the existing scale and character of the surrounding area. Further, Circulation Objectives and Policies 4.1.2. encourages land use patterns which reduce vehicle miles traveled and the number of vehicle trips. The grocery store is in close proximity to many residential units reduces the number of vehicle trips needed by area residents needing routine grocery items.

10. The proposed use would not be detrimental to the public interest, health, safety, convenience, or general welfare, in that the project can be upgraded to comply with standards and conditions necessary to insure that the commercial use is compatible with neighboring residential uses and to protect the public health, safety, and general welfare.

11. The proposed use will not result in an overconcentration of such uses in the immediate vicinity, in that the neighborhood grocery store is 750 feet away from the nearest commercial area and 480 away from another neighborhood grocery store.

CONDITIONS OF APPROVAL

1. The approval of CUP 02-001 is contingent on the City Council adopting TA 03-004. CUP 02-001 is not valid until an ordinance that implements TA 03-004 becomes effective.

2. This approval is for those plans dated June 15, 2000, a copy of which shall be maintained in the files of the City Planning Division. The plans shall be amended to provide a trash enclosure behind the building in-lieu of space #8. Project development shall be consistent with such plans, except as otherwise specified in these conditions of approval. Improvements to the property shown on the plans and specified in these conditions, including, but not limited to construction of property line walls, a trash enclosure, paving for the rear parking lot and building façade work shall be completed within 90 days from the effective date of this permit, or 60 days from the effective date of Architectural Review Board approval of work requiring such review.

3 The Plans shall comply with all other provisions of Chapter 1, Article IX of the Municipal Code, (Zoning Ordinance) and all other pertinent ordinances and General Plan policies of the City of Santa Monica.

4. Minor amendments to the plans shall be subject to approval by the Director of Planning. A significant change in the approved concept shall be subject to Planning Commission review. Construction shall be in conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board or Director of Planning.

Miscellaneous Conditions

7. The operation shall at all times be conducted in a manner not detrimental to surrounding properties or residents by reason of light, noise, activities, parking, or other actions.

6. The use shall continue to be limited to that of a neighborhood food market carrying a full line of grocery items.

7. All signs other than the “Market” sign, identifying the market shall be removed or painted out, including those in the windows and in the parking lot. Only permanent signs that are specifically approved by the ARB may be allowed. Because of the residential context and OP2 District sign limitations, new signs should be limited to the markets name, such as Budget Market, building address and exempt regulatory signs, such as customer parking only.

8. Landscaping employing materials at least 3.5’ high at the time of planting shall be installed and maintained along the northerly and southerly ends of the front parking lot. Design of the landscape and irrigation system shall be approved by the Architectural Review Board.

9. The premises shall be maintained in an acceptable state of repair and maintenance, including the landscaping, trash enclosure and fencing.

10. No business license shall be renewed or issued to any owner until the above conditions have been met.

11. That the owner and operators and all their assigns, employees or agents shall obey all laws and ordinances, particularly those relating to the sale of alcoholic beverages and conviction for violation of such laws shall be cause for revocation of this permit and forfeiture of all rights included therein.

12. Only 20% of the shelf area may be stocked with beer and wine and no liquor is permitted.

13. The neighborhood grocery store shall be operated completely within an enclosed building. The store “unit” may not be used for residential purposes.

14. The neighborhood grocery store shall provide and maintain seven (7) parking spaces, five spaces in the front of the store and two spaces in the rear of the building. One of the front spaces will also be used as an on-site delivery loading space.

15. One (1) on-street passenger loading zone space shall be located adjacent to the entrance to the store on Hollister Avenue for use by customers who arrive by automobile. The applicant shall reimburse the City for the costs of painting the curb, posting signs and installing a parking meter that may be necessary to designate and enforce the passenger loading zone between 8:00 a.m. and 9:00 p.m. as determined by the City Transportation Management Division.

16. One (1) off-street loading area, which is also used for customer parking shall be maintained in the front parking lot. The market operator shall encourage vendors and delivery trucks to use the on-site parking resources when available. Loading and unloading for store merchandise and trash pick-up shall be permitted only between 8:30 a.m. and 6:00 p.m. Monday through Friday.

17. No exterior activities such as trash disposal or other maintenance activity generating noise audible from the exterior of the building shall be conducted between 10:00 p.m. and 7:00 a.m., Monday through Friday, and between 10:00 p.m. and 9:00 a.m., Saturday and Sunday. Trash enclosure shall be secured with a lock between 9:00 p.m. and 8:00 a.m. No after hours operation shall be permitted.

18. Lighting shall comply with SMMC Section 9.04.10.02.270, which states that all outdoor lighting associated with commercial uses shall be shielded and directed away from surrounding residential uses. Such lighting shall not exceed .5 footcandles of illumination beyond the property and shall not blink, flash, oscillate or be of unusually high intensity of brightness.

19. The store may be open for business only between 8:00 a.m. and 9:00 p.m.

20. Deliveries shall be permitted only between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday.

21. Exterior mechanical equipment shall comply with current City screening and noise regulations SMMC Sections 4.12 and 9.04.10.02.130 - 9.04.10.02.150.

22. A 5’ x 9’ trash and recycling room or enclosure shall be provided and maintained. Its walls shall be at least six feet high and constructed of decorative concrete block. A solid, view obscuring lockable gate shall be provided. The trash enclosure shall be secured with a lock between 9:00 p.m. and 8:00 a.m.

23. A six-foot high, decorative concrete block wall shall be provided along the north and east property lines. The walls shall step down to a maximum height of 24” within five feet of the sidewalk.

24. Within 14 days of the effective date, 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 time the establishment is in operation.

25. Electrical conduit, window bars and lighting fixtures that have been installed on the exterior of the building shall be removed. Electrical conduit, pipes and security bars may be installed inside the building with pertinent permits. Decorative lighting that is consistent with the building’s architectural theme shall be installed on the building to illuminate the parking lot, entrance and building facade.

26. The applicant is on notice that signage, exterior modifications, or exterior alterations require prior approval of the Architectural Review Board, see Condition 3.

Validity of Permits

27. 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.

28. Within ten days of City Planning Division transmittal of the approved Statement of Official Action, project applicant shall sign and return a copy of the Statement of Official Action prepared by the City 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 City Planning Division. Failure to comply with this condition may constitute grounds for potential permit revocation.

29. This determination shall not become effective for a period of fourteen days from the date of determination or, if appealed, until a final determination is made on the appeal. Any appeal must be made in the form required by the Zoning Administrator. The approval of this permit shall expire if the rights granted are not exercised within one year 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 and Community Development. Applicant is on notice that time extensions may not be granted if development standards relevant to the project have changed since project approval.

Prepared by: Bruce Leach, Associate Planner

Attachments:

A. Text Amendment

B. Municipal Code and General Plan Conformance

C. Notice of Public Hearing

D. Radius and Location Map

E. CUP 322

F. Petition from the applicant

G. Photographs of Site and Surrounding Properties

H. Plot Plan, Floor Plans and Elevations

JT:bgl

f:\plan\share\pc\strpt\02\02cup001market

ATTACHMENT B

MUNICIPAL CODE AND GENERAL PLAN CONFORMANCE

CATEGORY	LAND USE ELEMENT	MUNICIPAL CODE	PROJECT
Permitted Use	Medium Density Residential	Neighborhood grocery store with a CUP & Special Conditions.	Allow nonconforming neighborhood grocery store to continue use in OP2 District.
Moratorium Status	N/A	N/A	N/A
Dwelling Units		1 DU/2000 s.f. 5,592/2000 = 2.8 units	None
Height of Building		23’ Flat roof	20’
Number of Stories		2-Stories	1-Story
Height of Walls, Fences	N/A	Minimum 5’ high fence is required between parking and residential neighbors. (CUP 322)	5’ to 6’ high wood fence between parking and residential neighbor.
Setbacks Frontyard Sideyard Rear Yard OP Primary Window	N/A N/A N/A N/A	20’ 6’-3” – North 10’ - South 15’ N/A if windows face street or rear yard.	30’-6” North - 0’-0” South– 0’-0” 21’-0” Windows face street & rear yard.
Lot Coverage	N/A	50% Maximum 2,460/5,874 = 42%	42%
Parking Access	Alley access is encouraged when alley exists.	Alley access is required when alley exists (SMMC 9.04.10.08.080).	No alley Access from 4^th Street & Hollister Ave.
Parking Space Number	N/A	2 for employees (600 sf) + 1/300 sf 2 employees (600 sf) = 2 1,740 sf/300 = 5.8 = 6 Total req. 8	5 standard 2 compact 1 handicap 8 Total
Compact Parking %	N/A	40% (up to 3 spaces)	3 Spaces
Loading Spaces	N/A	1 (may use customer space if 10’ x 20’) (SMMC 9.04.14.080(g))	10’ x 20’ Combined with customer parking space.
Trash Area	N/A	5’x9’ Trash enclosure with minimum 5'- 8' solid walls and gate required. (SMMC 9.04.10.02.151(a)(2))	None
Mechanical Equipment Screening	N/A	Mechanical equipment extending more than 12" above roof parapet shall be fully screened from a horizontal plane. (SMMC 9.04.10.02.140)	Complies
Location of Mechanical Equipment	N/A	Not permitted on side of building if adjacent to a residential building on an adjoining lot. (SMMC 4.12 & SMMC 9.04.10.02.180)	On roof
Parking Area Screen	N/A	5’ to 8’ block wall	5’ to 6’ wood fence.
Frontyard Landscaping	N/A	10% of parking areas (SMMC 9.04.10.04.070)	7% per CUP 322
Special Standards for Neighborhood Grocery Stores SMMC9.04.14.080 · Location · Structure · Height, setbacks & parcel coverage · Parking · Passenger Loading · Off-street Loading · Lighting · Hours of Operation · Deliveries	N/A	Location: 300’ separation from uses. Structure: Must operate within an enclosed building. Height, setbacks & parcel coverage per OP2 standards. Parking: 2 for emp + 1/300 sf 2 employees (600 sf) = 2 1,740 sf/300 = 5.8 = 6 Total req. 8 One on-street passenger loading space adj to entrance One 10’ x 20’ Off-street loading space Lighting Hours of Operation 8 a.m. to 9 p.m. Deliveries 8 a.m. to 6 p.m. (SMMC9.04.14.080)	370’ (1,125’) Operates within building, except phones??? Does Not comply with OP2 setbacks (See above) 8 spaces Passenger loading available on Hollister. With passenger space Complies Complies Complies
Code Violations Violation of CUP 322 Conditions		CUP 322 Conditions: 2. Only the projecting “market” and wall sign identifying the market are approved. 3. Landscaping, at least 3.5’ high be installed [and maintained] between the parking lot and building (ARB 1853). 4. Landscaping to be maintained. 6. Owner/Operator shall obey all pertinent laws.	Numerous signs have been installed w/o City approval or permits. Landscaping was either not installed or not maintained. Landscaping not maintained. Owner/Operator has installed illegal signs, altered the approved parking design and failed to maintained landscaping.
Historic Resources Inventory	N/A		Not listed.

CATEGORY

LAND USE ELEMENT

MUNICIPAL CODE

PROJECT

Permitted Use

Medium Density Residential

Neighborhood grocery store with a CUP & Special Conditions.

Allow nonconforming neighborhood grocery store to continue use in OP2 District.

Moratorium Status

N/A

Dwelling Units

1 DU/2000 s.f.

5,592/2000 = 2.8 units

None

Height of Building

23’ Flat roof

20’

Number of Stories

2-Stories

1-Story

Height of Walls, Fences

N/A

Minimum 5’ high fence is required between parking and residential neighbors.

(CUP 322)

5’ to 6’ high wood fence between parking and residential neighbor.

Setbacks

Frontyard

Sideyard

Rear Yard

OP Primary

Window

N/A

20’

6’-3” – North

10’ - South

15’

N/A if windows face street or rear yard.

30’-6”

North - 0’-0”

South– 0’-0”

21’-0”

Windows face street & rear yard.

Lot Coverage

N/A

50% Maximum

2,460/5,874 = 42%

42%

Parking Access

Alley access is encouraged when alley exists.

Alley access is required when alley exists

(SMMC 9.04.10.08.080).

No alley

Access from 4^th Street & Hollister Ave.

Parking Space Number

N/A

2 for employees (600 sf)

+ 1/300 sf

2 employees (600 sf) = 2

1,740 sf/300 = 5.8 = 6

Total req. 8

5 standard

2 compact

1 handicap

8 Total

Compact Parking %

N/A

40% (up to 3 spaces)

3 Spaces

Loading Spaces

N/A

1 (may use customer space if 10’ x 20’)

(SMMC 9.04.14.080(g))

10’ x 20’ Combined with customer parking space.

Trash Area

N/A

5’x9’ Trash enclosure with minimum 5'- 8' solid walls and gate required.

(SMMC 9.04.10.02.151(a)(2))

None

Mechanical Equipment Screening

N/A

Mechanical equipment extending more than 12" above roof parapet shall be fully screened from a horizontal plane.

(SMMC 9.04.10.02.140)

Complies

Location of Mechanical Equipment

N/A

Not permitted on side of building if adjacent to a residential building on an adjoining lot.

(SMMC 4.12 &

SMMC 9.04.10.02.180)

On roof

Parking Area Screen

N/A

5’ to 8’ block wall

5’ to 6’ wood fence.

Frontyard Landscaping

N/A

10% of parking areas

(SMMC 9.04.10.04.070)

7% per CUP 322

Special Standards for Neighborhood Grocery Stores

SMMC9.04.14.080

· Location

· Structure

· Height, setbacks & parcel coverage

· Parking

· Passenger Loading

· Off-street Loading

· Lighting

· Hours of Operation

· Deliveries

N/A

Location: 300’ separation from uses.

Structure: Must operate within an enclosed building.

Height, setbacks & parcel coverage per OP2 standards.

Parking: 2 for emp

+ 1/300 sf

2 employees (600 sf) = 2

1,740 sf/300 = 5.8 = 6

Total req. 8

One on-street passenger loading space adj to entrance

One 10’ x 20’ Off-street loading space

Lighting

Hours of Operation

8 a.m. to 9 p.m.

Deliveries

8 a.m. to 6 p.m.

(SMMC9.04.14.080)

370’ (1,125’)

Operates within building, except phones???

Does Not comply with OP2 setbacks (See above)

8 spaces

Passenger loading available on Hollister.

With passenger space

Complies

Code Violations

Violation of CUP 322 Conditions

CUP 322 Conditions:

2. Only the projecting “market” and wall sign identifying the market are approved.

3. Landscaping, at least 3.5’ high be installed [and maintained] between the parking lot and building (ARB 1853).

4. Landscaping to be maintained.

6. Owner/Operator shall obey all pertinent laws.

Numerous signs have been installed w/o City approval or permits.

Landscaping was either not installed or not maintained.

Landscaping not maintained.

Owner/Operator has installed illegal signs, altered the approved parking design and failed to maintained landscaping.

Historic Resources Inventory

N/A

Not listed.

ATTACHMENT D

PLANNING COMMISSION MINUTES – APRIL 2, 2003

M I N U T E S

REGULAR MEETING OF THE

PLANNING COMMISSION

OF THE CITY OF SANTA MONICA

WEDNESDAY, April 2, 2003 CITY COUNCIL CHAMBERS

7:00 P.M. ROOM 213, CITY HALL

1. CALL TO ORDER: The meeting was called to order at 7:10 p.m.

2. PLEDGE OF ALLEGIANCE: Commissioner Olsen led the Pledge of Allegiance.

3. ROLL CALL: Present: Barbara Brown

Darrell Clarke, Chairperson

Julie Lopez Dad

Arlene Hopkins

Jay P. Johnson

Geraldine Moyle

Kelly Olsen

Also Present: Kyle Ferstead, Commission Secretary

Suzanne Frick, Director of Planning

Bruce Leach, Associate Planner

Kevin McKeown, City Council Liaison

Barry Rosenbaum, Senior Land Use Attorney

Amanda Schachter, Principal Planner

Jay M. Trevino, AICP, Planning Manager

7. PUBLIC HEARINGS:

7-A. Conditional Use Permit 02-001, Text Amendment 03-004, 2331 Fourth Street. Application for Conditional Use Permit (CUP) 02-001 to allow the continued use of an existing nonconforming neighborhood grocery store in a residential district. The conditional use permit that allowed the nonconforming neighborhood grocery store to operate for a limited term has expired, and a new permit is required. The proposed amendment to the Zoning Ordinance, Text Amendment (TA) 03-004, would allow the Planning Commission to modify the special conditional use permit standards for neighborhood markets on a case-by-case basis. Approval would require the Planning Commission to modify special conditional use permit standards for neighborhood markets pursuant to TA 03-004. [Planner; Bruce Leach] APPLICANT: Alice Berkowitz. PROPERTY OWNER: The Estate of Mitilda Filous.

The Commission made the following ex parte communication disclosures: Commissioners Brown, Dad, Johnson, Moyle and Olsen, had nothing to disclose; Chair Clarke disclosed that he drove by the site and took photographs at 9:30 a.m. on Wednesday, April 2, 2003; and Commissioner Hopkins stated that Budget Market is her corner market and she is a customer.

Associate Planner Bruce Leach gave the staff report.

Commissioner Brown asked staff why the application, first submitted in 1998, has taken so long to get to a public hearing. Mr. Leach explained that there were several issues that caused the delay. First, the business was already in operation, therefore the applicant was not actively urging the project forward. Secondly, a Text Amendment was required to move forward because an earlier Text Amendment filed for Smith Pipe did not resolve all the issues affecting neighborhood markets in residential districts. Mr. Leach further stated that the applicant only submitted the required Text Amendment application one month ago.

Commissioner Brown asked Mr. Leach about the legislative history mentioned on page six of the staff report. Mr. Leach stated that the legislative history includes the Text Amendment process for Smith Pipe and Supply, which included a list of other businesses, which would be impacted by that Text Amendment. Two of the three neighborhood market were on that list. He clarified that the Smith Pipe Text Amendment made changes to the Zoning Ordinance regarding non-conforming uses (i.e. commercial uses) in residential districts. Senior Land Use Attorney Rosenbaum stated that the Smith Pipe Text Amendment requires findings be made in the affirmative and that special conditions be met. He further stated that the neighborhood markets can not meet the special conditions cited in the Smith Pipe Text Amendment.

Commissioner Olsen stated that he does not see a copy of the prior Conditional Use Permit (CUP) in the packet. Mr. Leach stated that the Statement of Official Action is included as Attachment E.

Commissioner Olsen asked staff to comment on the issues of compliance and non-compliance, specifically the hours of operation. Mr. Leach stated that the Code in 1982 allowed longer hours than the current code allows.

Commissioner Olsen asked staff if the hours of 7:00 a.m. to midnight is a violation of the CUP. Mr. Leach stated that the hours cited violate current code, but not the CUP.

Commissioner Olsen asked about requirements for off-street loading for the business. Mr. Leach stated that there were no requirements for off-street loading in 1982 and the current code requirement is a ten-foot by twenty foot loading space.

Commissioner Olsen asked staff for confirmation that under the current standards a neighborhood market would not be able to sell alcohol. Mr. Leach answered in the affirmative.

Commissioner Olsen asked staff if he is correct that because this is a legal non-conforming use there is no way to condition alcohol sales. Senior Land Use Attorney Rosenbaum stated that there is a provision in State law with regards to if alcohol sales were established prior to local zoning regulations. In such situations, an establishment can continue to operate as long as the type of alcohol license does not change and the mode of operation does not change.

Commissioner Olsen stated that he is not inclined to protest the sale of alcohol at this location and he accepts the State’s pre-emption in this matter. However, he stated he would argue that if the Text Amendment is not adopted and the use goes away, the alcohol sales could technically continue. Senior Land Use Attorney Rosenbaum stated that if the Text Amendment is not adopted, the entire use must cease despite the provision for a contest via State law and the State Alcohol Beverage Control (ABC).

Commissioner Olsen expressed his opinion that there is still a case to be made, in the Text Amendment, to require alcohol sales conditions. Senior Land Use Attorney Rosenbaum stated that the enforcement of conditions of approval can still be addressed.

Commissioner Brown asked if SMMC Section 9.04.18.040(h), as amended, does not address Commissioner Olsen’s concerns. Senior Land Use Attorney Rosenbaum answered in the negative. Commissioner Brown asked if the cited Section plus the Text Amendment would meet Commissioner Olsen’s concern. Senior Land Use Attorney Rosenbaum answered in the affirmative.

Commissioner Moyle commented that the prior CUP for the neighborhood market was issued in 1982 and expired in 1997. She asked about a condition relating to the business license (page 4), which indicates no business license is to be issued until all conditions are met. Mr. Leach stated that when a business changes ownership, a new business license is required, otherwise annual renewals are automatic. He stated that this business has been in compliance since the early 1980s according to the file. Commissioner Moyle asked if she understood correctly that business licenses are automatically renewed and do not receive Planning review for compliance. Mr. Leach responded in the affirmative.

The applicant’s representative, Drew Cicconi, was present to discuss the application.

The following members of the public addressed the Commission regarding retaining the neighborhood market: Anita Holcomb, Elan Glasser, and Paul Gascone.

Mr. Cicconi spoke in response to the public comment.

Commissioner Hopkins asked staff when this project will go to the Architectural Review Board (ARB). Mr. Leach stated that the permit will not be effective until the City Council adopts the Text Amendment, which will take several months. He further stated that plans can be prepared for ARB review, however a public hearing should not be held until after the City Council adoption of the Text Amendment.

Commissioner Moyle asked staff about the “limbo” period from the expiration of the CUP in 1997 until now. Specifically if the City generally allows a grace period while arrangements are made to extend a CUP. Mr. Leach indicated that this is not generally the case, however since there were no violations associated with this site, immediate action was not taken by the City. Ms. Frick added that typically when an extension is requested, the CUP is put on hold pending resolution of the extension request.

Commissioner Moyle asked for an explanation on the time delay in processing the extension request for this neighborhood market. Mr. Leach stated that there are several reasons for the delay including staff workload, retrieval of files from archives and building the case chronology as well as the need to file a Text Amendment.

Commissioner Moyle asked staff if the extensive signage and yard storage was not a “red flag” flag for this property. Mr. Leach acknowledged that signage is a “red flag” as only two are permitted and approved for the building. Commissioner Moyle stated that she is asking these questions to put them on the record and for making a case on item 7-C.

Senior Land Use Attorney Rosenbaum stated for the record that the Smith Pipe Text Amendment authorizes approval of extensions of durational CUPs even if they have expired.

Commissioner Hopkins asked staff to elaborate on the recommendation for operational hours of 8:00 a.m. to 9:00 p.m. She stated that this neighborhood market is currently used by neighbors late in the evening and early in the morning. Mr. Leach stated that the hours cited are in the adopted ordinance for neighborhood markets. He stated that the more restrictive hours are because the markets are located in residential areas.

Commissioner Brown asked staff why the modifications in the Text Amendment are only for subsections (d), (e) and (g). Mr. Leach explained that those subsections have to do with physical constraints, such as required setbacks and parking requirements. Compliance would be a burden on the applicant.

Commissioner Brown asked staff if these would be considered “hardship” issues. Mr. Leach answered in the affirmative.

Commissioner Brown asked staff about the subsection on the merchandise on the sidewalk. Mr. Leach stated that this is a standard condition for markets.

Commissioner Johnson stated that he is not comfortable with the phrase “the use” in the continuous operation portion of the Text Amendment. Mr. Leach stated that if the non-conforming use is removed, it can not return.

Chair Clarke closed the public hearing.

Commissioner Olsen made a motion to recommend that the City Council adopt the Text Amendment.

Commissioner Johnson seconded the motion.

The motion on the recommendation to City Council was approved by the following vote: AYES: Brown, Clarke, Dad, Hopkins, Johnson, Moyle, Olsen. Commissioner Olsen made a motion to approve the Conditional Use Permit. He stated that staff’s recommendation is right, the hours of operation are right, and he is not opposed to the sale of alcohol at this location. He asked that the conditions of approval include the standard alcohol sales and employee education conditions as the exterior maintenance/cleaning condition.

Commissioner Johnson seconded the motion.

Commissioner Dad asked that Condition #2 be amended to 180 days. Commissioner Olsen agreed to the change.

Commissioner Dad asked the numbering be corrected on the conditions and noted that there are two Condition #26s.

Mr. Leach stated that the maintenance condition is #17. He also amended the wording on Finding #2 as follows: The proposed use does not conform precisely to the applicable special conditions outlined in Subchapter 9.04.14 of the City of Santa Monica Comprehensive Land Use and Zoning Ordinance, in that the project is inconsistent with SMMC Section 9.04.14.080(d) because the project does not conform to building setbacks required for neighborhood markets located in the OP2 District.

Commissioners Olsen and Johnson agreed to the change.

Commissioner Olsen asked if the conditions of approval include the standard condition that the Conditions of Approval be posted or available at the project address. Mr. Leach replied in the affirmative.

The motion on the CUP was approved by the following vote:

11. ADJOURNMENT: The meeting was adjourned at 12:43 a.m., Thursday, April 3, 2003.

APPROVED: May 21, 2003

Related Council action and applicable Court decisions