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HomeMy WebLinkAbout4/11/2006MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION APRIL 11, 2006 CALL TO ORDER: Chairman McManus called the meeting to order at 7:05 p.m. in the South Coast AirQuality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, California 91765. PLEDGE OF ALLEGIANCE: Commissioner Torng led the Pledge of Allegiance. 1. ROLL CALL: Present: Commissioners Ron Everett, Kwang Ho Lee, Tony Torng, Vice -Chairman Steve Nelson and Chairman Joe McManus. Also present: Nancy Fong, Interim Community Development Director; David Doyle, Assistant City Manager; Ann Lungu, Associate Planner; Gregg Kovacevich, Assistant City Attorney; Stella Marquez, Senior Administrative Assistant Lt. Maxey and Sgt. Sachs, Diamond Bar/Walnut Sheriff Department. 2. MATTERS FROM THE AUDIENCEIPUBLIC COMMENTS: None Offered. 3. APPROVAL OF AGENDA: As Presented. 4. CONSENT CALENDAR: 4.1 Minutes of the Regular Meeting of March 28, 2006. C/Everett moved, C/Torng seconded, to approve the minutes of March 28, 2006, as corrected. Motion carried by the following Roll Call vote: AYES: NOES: ABSENT: 5. OLD BUSINESS: 6. NEW BUSINESS: COMMISSIONERS COMMISSIONERS COMMISSIONERS None. Everett, Torng, Lee, VC/Nelson, Chair/McManus None None 6.1 GOVERNMENT CODE SECTION 65402 — Resolution of the Planning Commission finding that the sale of surplus property is in conformance with the General Plan (GC §65402). APRIL 11, 2006 PAGE 2 PLANNING COMMISSION ICDD/Fong presented staff's report and asked that the Planning Commission find that the sale of surplus property was in conformance with the City's General Plan. VC/Nelson asked if the property was original set-aside in association with the development of the tract and ICDDIFong explained that the City purchased the land at auction when the private property owner defaulted. It was not part of the park or open space development requirement. VC/Nelson asked the appraised value of the property and what percentage of the budget went toward the purchase. ICDDIFong responded that the appraised value was confidential information. ICDDIFong responded to ClEverett that the property is contiguous to but not part of Summitridge Park. The property is zoned Residential. ClEverett said he was concerned that a continuous stream of revenue would seem to him to be preferable. He asked if a change in use would require a zoning change because he thought the City was in a critical situation for lack of open space. ICDDIFong responded that the 1.27 acres was too small to be included in open space and the City could use the funds to purchase other open space areas to create more parkland. C/Torng asked if this piece of land was being considered for a community swimming pool and ICDDIFong responded "no." ClTorng agreed that the City needed the money. VC/Nelson moved, ClEverett seconded to adopt a resolution finding that the sale of surplus property was in conformance with the City's General Plan. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS NOES: COMMISSIONERS ABSENT: COMMISSIONERS 7. CONTINUED PUBLIC HEARINGS: VC/Nelson, Everett, Lee, Torng, Chair/McManus None None 7.1 TENTATIVE PARCEL MAP NO. 061702 '—In accordance with Chapter 21 of the City of Diamond Bar Development Code, the applicant requested the following approval: Tentative Parcel Map No. 061702 to subdivide one lot APRIL 11, 2006 PAGE 3 PLANNING COMMISSION into three parcels. The project is consistent with and an implementation of the Diamond Bar Village Specific Plan. (Continued from March 28, 2006) PROJECT ADDRESS PROPERTY OWNER: West of Grand Avenue and South of Golden Springs Drive Diamond Bar, CA 91765 Target Corporation 1000 Nicollet Mall Minneapolis, MN 55403 APPLICANT: Pfeiler & Associates Engineers, Inc. 660 N. Diamond Bar Boulevard Diamond Bar, CA 91765 ICDD/Fong presented staffs report and recommended that the Planning Commission adopt a resolution recommending City Council approval of Tentative Parcel Map No. 061702 to subdivide one lot into three parcels. C/Torng thanked staff for providing additional information in its report. He asked that April 26, 2006, be corrected to April 26, 2005 on page 2, third paragraph of the report. He felt it was mysterious that the previous decision included only 20 parking spaces for Parcel 3 and believed it would create problems for the future because Target would have a lot of business. ICDD/Fong responded that depending on the future use additional parking spaces may be required and staff would work with Target toward a solution. Parcel 3 has a reciprocal agreement for parking and that parcel may use some of the Target parking spaces. In response to C/Everett, ICDD/Fong said that with respect to Item (10) on page 6, an association would be formed prior to a final map approval. C/Everett felt the association should be set up sooner rather than later. ICDD/Fong explained that typically, the CC&Rs provide criteria for forming an Association. The City Attorney approves the CC&Rs prior to City Council approval and recordation with the County. C/Evereft asked if "when" should be included and ICDD/Fong said that the Commission could add "priortothe final map" on Item (10). C/Everett said that following language should also be added: "shall be recorded with the final map." C/Everett pointed out that the items on page 6 after Item (5) needed to be renumbered. APRIL 11, 2006 PAGE 4 PLANNING COMMISSION VC/Nelson speculated that due to the parking configuration Target wanted to maintain a window onto Golden Springs Drive and if so, could that be accomplished by way of an easement that would provide for parking only. He asked if there was any scenario or circumstance that might come before the City for approval under which a particular use could come in to parcel 3 and; for whatever reason Target and the new owner of Parcel 3 disagreed about the reciprocal parking agreement, the parking would be separated with each parcel standing on its own. ICDD/Fong responded that because the reciprocal agreement was a condition of the tentative map it runs with the land and the property owner would have to get approval from the City in order to change the reciprocal parking condition. CILee asked if the installation of public art was mandatory, voluntary or discretionary. ICDDIFong responded that because this was a tentative map it could be discretionary. The City has an ordinance that recommends placing art in public places. If the project were conditioned for art it would be mandatory. CILee asked by what standard the condition was removed. ICDDIFong stated that the item was continued and no action was taken; thus, a condition was not imposed. And, the applicant asked that the proposed condition be removed due to cost and staff complied. The Planning Commission has the authority to impose such a condition. CILee asked if the applicant said how much it would cost and ICDDIFong said that the Target project was already over budget. Doug Cooper, Greenberg Farrow Architects, 15101 Red Hill Avenue, Tustin, consultant for Target, explained that the reason Target requested the condition for art be removed was because the project is approaching $1 million over budget. In addition, Target annually contributes about 5 percent of its corporate federal taxable income to community involvement programs that include education, arts, social services and community partnerships. Mr. Cooper responded to Chair/McManus that the project was over budget due to additional off-site requirements and increases in construction costs. Chair/McManus said he understood the additional costs reached into the six - figure bracket. Mr. Cooper agreed. C/Torng said this would be a major development for Diamond Bar and felt it would be even more attractive for the business to have an art piece at a major intersection of the City. He asked Mr. Cooper if there was a possibility that in the future art could be added. Mr. Cooper responded that it might be possible through the community involvement program but as a construction cost the budget would not allow it. APRIL 11, 2006 PAGE 5 PLANNING COMMISSION ICDD/Fong responded to C/Torng that in the future the Development Code could be modified to clarify the timing for a development to provide an art piece and even further specify the size and type of development that would include art. Chair/McManus recommended that through the sale Mr. Cooper could possibly include placement of an art object. Mr. Cooper responded that such a requirement might create an adverse response from a potential buyer. ICDDIFong explained that the Planning Commission would have another opportunity to ask a corner restaurant applicant whether they would like to include a fountain at the corner as a special architectural treatment, for example. Chair/McManus opened the public hearing. With no one present who wished to speak on this item, Chair/McManus closed the public hearing. C/Everett said he was disappointed about art not being included. However, he respected the applicant's position. Finding no errors or problems based upon the process to date he offered the following motion: C/Everett moved, C/Torng seconded to approve Tract Parcel Map No. 061702 to subdivide 13.69 acres into three parcels as outlined in the recommended resolution as amended. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Everett, Torng, Lee, VC/Nelson, Chair/McManus NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 7.2 CONDITIONAL USE PERMIT NO. 2003-01 — Originally approved on May 27, 2003, to allow for the operation of a restaurant and bar with entertainment (i.e., entertainment shall only include a jazz band, guitarist and pianist on a small stage within the bar; and a DJ with dancing for banquets and private parties held within the banquet room) at the location referenced below. Condition No. 5(o) of the Conditional Use Permit requires that the City periodically review the operation to assure compliance with conditions of APRIL 11, 2006 PAGE 6 PLANNING COMMISSION approval and to consider whether to modify, add conditions as necessary, or revoke the permit. (Continued from March 14, 2006) PROJECT UNDER REVIEW: PROPERTY OWNER: APPLICANT: Scribbles Grille & Restaurant 245 Gentle Springs Lane Diamond Bar, CA 91765 P.N. Patel, Ratan Hospitality, LLC 1205 W. Sierra Madre Avenue Glendora, CA 91765 Raj Astavakra 6226 N. Calera Avenue Azusa, CA 91702 ACA/Kovacevich said he was present this evening to represent the Planning Commission and has had no contact with staff regarding this item. Tonight the Planning Commission resumes a public hearing that was opened on March 14, 2006, and continued to tonight's meeting. Upon conclusion of staffs report each Commissioner should present his disclosures to disclose into the record whether the Commissioner has gathered any evidence outside of the packet and public hearing information. Following the disclosures the meeting will move to the public testimony portion of the hearing. Generally, the applicant is given about 15 minutes to testify and should be notified about the ground rules prior to giving testimony including rebuttal. Other interested members who wish to speak are given up to five minutes each. ACA/Kovacevich recommended strict adherence to the time limits. Questions from Commissioners should be offered following the speaker's testimony so as not to interrupt their allotted time. At the end of the public testimony the Chairman will close the public testimony portion of the public hearing to begin deliberation. At any point during deliberations the Commission may direct questions to staff, the applicant and any member who previously offered testimony. Tonight's issue for the Commission is whether it feels there is substantial evidence in the record to support findings necessary for revocation or modification of the Conditional Use Permit pursuant to Chapter 22.76. ACA/Kovacevich referred the Commissioners to page 6 of staff's report wherein staff sets forth evidence in support of its recommendation. ICDD/Fong presented staff's report and indicated that two issues were before the Commission: 1) To determine whether the business was operating APRIL 11, 2006 PAGE 7 PLANNING COMMISSION in accordance with the Conditional Use Permit that was approved in May 2003; and 2) was the business a public nuisance and is it a threat to the public health, safety and welfare. ICDDIFong recommended that the Planning Commission reopen the public hearing, receive testimony and direct staff accordingly. Lt. Maxey stated that response information was included in the Commissioners' packets and that he and Sgt. Sachs and other officers have responded to Scribbles on numerous occasions, usually in the aftermath of problems that have occurred on the site to determine whether the issues could be prevented from reoccurring. What he has seen and what he has discovered is that there is a huge volume of people and when an event is over they congregate in adjacent parking lots such as Kmart and whatever problems occur usually occur at that location. The local Sheriff's Department has a limited amount of resources and the deployment is heavy and focused during incidents that have occurred at Scribbles and crime in the City is focused at the Scribbles parking lot. As a result, the rest of the community remains at will during the time the department is focused at Scribbles and this scenario creates a public safety issue for the entire community. Sgt. Elizabeth Sachs said she works the 10:00 p.m. to 6:00 a.m. shift. Generally, the four available units are dispatched to Scribbles until about 2:00 a.m. because the department knows that if a problem were to occur it would likely happen between 1:00 a.m. and 2:00 a.m. in the Kmart (overflow) parking lot. She said that her department believes there is going to be a bigger problem than has occurred to date because there is a lot of drinking including under -aged drinking and individuals who drink before entering the business. Individuals congregate in the Kmart parking lot and there is a sea of beer, whiskey and other hard liquor bottles left in the parking lot by the time the parking lot empties out at about 2:00 a.m. She said she has personally responded to incidents where during fights bottles were thrown creating a safety hazard for the patrons, the deputies, and the adjacent family -type businesses. At times there are about 600 people that patronize the very successful club to enjoy the music and atmosphere. The problem is that patrons leave at the same time and the department's goal is to have everyone leave the site without a problem. Unfortunately, there are usually problems and she believes there would be even more problems without the presence of the officers. Her 17 years of experience with the department leads her to believe that with the mix of alcohol, young patrons, etc., there would be even bigger problems than what the City had experienced so far. Some of the injuries she witnessed were broken eye sockets, split lips, APRIL 11, 2006 PAGE 8 PLANNING COMMISSION people hit with bottles, windows broken, etc. One man was brandishing a baseball bat to fend off other patrons. The security inside the facility is good. However, once the patrons exit the club they are out and about in the City and it is up to the four units and the supervisor to rein everyone in. She has witnessed street racing, bad collisions, etc. She reiterated that many of the patrons were becoming intoxicated outside of the dub in the overflow parking area. Most of the problems occur on Thursday evenings. And she again reiterated that in her opinion, it was a "time bomb" and needed to be addressed. Chair/McManus asked Sgt. Sachs if when the officers were called to the scene they contacted Scribbles to make them aware of the incident and of their presence and Sgt. Sachs responded yes, most of the time. She again stated that most of the time Scribbles was very cooperative and that most of the calls come from outside of the club and from the overflow parking across the street from the club's parking area (Kmart parking lot). ICDD/Fong responded to Chair/McManus that the maximum occupancy of the building is 580. She believed that at times there were possibly 100 to 200 people outside of the building after Scribbles had closed its doors because it has reached maximum capacity. And the overflow patrons have caused additional public safety issues. C/Lee asked if the City had taken any action against the businesses inappropriate actions and ICDD/Fong said that tonight's hearing was the first step. ICDD/Fong responded to C/Everett that a copy of staff s report was provided to the business owner and to the property owner. Lt. Maxey responded to C/Everett that an individual who is victimized has a right to decide whether to file charges, which dictates what the department does in response. If a traffic accident occurs the suspect has no say in the matter because the department enforces those laws. Sgt. Sachs said she had witnessed substantial injuries and the victim did not want a police report filed. In such cases the department cannot force individuals to become documented victims. C/Torng felt that due to the number of problems the City should have started its review earlier. ACA/Kovacevich explained that whatever decision the Commission made this evening would be appealable to the City Council. APRIL 11, 2006 PAGE 9 PLANNING COMMISSION ICDD/Fong stated that the applicant could reapply for a Conditional Use Permit and it would be subject to the Commission's review. She responded to C/Torng's statement about responding earlier that staff received complaints and sent a letter to the applicant in late 2004/early 2005 reminding him that the Conditional Use Permit allowed limited entertainment only. C/Torng said he drove the area on a Sunday to become familiarwith the site. Since Scribbles was not open he saw no crowds. C/Everett said he too did a drive through during the day to confirm staff's map and layout. There were no other Commissioner disclosures offered. ACM/Doyle wanted the Commissioners to understand that during certain hours on Thursday nights every law enforcement resource that the City had was dedicated to this single operation which meant that there were no law enforcement patrols or other types of criminal deterrence taking place in other parts of the community. Bottom line is that this is a significant drain on the City's public safety resources and creates an issue for the health, safety and welfare for the balance of the community. The Sheriff's Department responds to specific issues but is unable to patrol as usual when they are dedicating their resources to this problem. Therefore, it is not a matter of responding to a series of incidents it is a matter of dedicating every public safety resource available to Diamond Bar as well as drawing from other adjacent communities to address this situation almost every Thursday night. Chair/McManus announced that the applicant would be given 15 minutes to speak and that public speakers would be limited to five minutes each. Frank Weiser, Attorney, 3460 Wilshire Boulevard, Suite 903, Los Angeles raised the following objections and asked that the hearing be continued because he was hired last night and because the partners and property owner received their copies of the staff report on Saturday. He said he understood the hearing was continued from March 14. However, the owner was out of the country. Due process requires that the applicant be given meaningful opportunity and notice to be heard. He cited cases involving due process. in addition, the applicant is entitled to copies of the underlying reports referred to during tonight's meeting and in staff's report so that he can adequately prepare his defense. Mr. Weiser said he was concerned that APRIL 11, 2006 PAGE 10 PLANNING COMMISSION given the evidence presented so far this evening that there was no formal notice given to the applicant. He heard Sgt. Sachs say that Scribbles had been cooperative when notified about some of the alleged problems. However, his client tells him that he was never given formal notice of any of the charges and never told in writing that there was a problem that would cause his Conditional Use Permit to be modified or revoked. State law (Health and Safety) requires that the applicant be given notice and an opportunity to correct the problem before he is put out of business. He submitted evidence that the applicant had invested more than $900,000 in the property and in accordance with state law (Goat Hill Tavern vs. City of Costa Mesa) a Conditional Use Permit and the amount of investment is a fundamental property interest. He asked if the City was proposing mitigation measures. He asked for fundamental fairness. Raj Astavakra, applicant said that he had not received one citation for exceeding the maximum occupancy. In 2004 there were no incidents. In 2005 there were incidents cited and no citations issued. He said he was very surprised at the allegations. People who live in the condominium complex complain that the gate was lifted by one of his patrons and how do they know it was one of his patrons. They also complain about ladies changing clothes in front of the complex and he was never told about such incidents. The problem of someone speeding down Diamond Bar Boulevard and elsewhere in the City does not necessarily come from Scribbles patrons. There are fights at Acapulco and inside Oak Tree Lanes and there was even a murder at that location and nothing happened. He felt like a victim when he was given a letter on Friday that contained complaints from the Sheriff's Department. The Sheriff s Department has not given him a letter or any type of document that says he violated his Conditional Use Permit. He asked the Commission to give him a chance to respond to the City's complaints and said he would respond honestly and to the best of his ability. CILee said he was concerned that the Conditional Use Permit was based on certain conditions and the conditions were promises between the applicant and the City. If the applicant does not comply there is no foundation for the Conditional Use Permit. Staff reports so many findings such as Item d, "that the permit was obtained by misrepresentation orfraud;" and c—"one or more of the conditions of the permit have not been met or have been violated." Is it true or false? Mr. Astavakra responded "it is false, sir." He said he does not run just a club. He has a sit down restaurant with a band playing in accordance with his Conditional Use Permit. If someone rents his place and hires a DJ they can have any kind of music they wish. CILee asked APRIL 11, 2006 PAGE 11 PLANNING COMMISSION Mr. Astavakra if he has complied with the conditions of his permit and Mr. Astavakra responded "yes" and said that he could charge whatever admission he felt was appropriate. C/Lee asked staff if that was true and TCDD/Fong responded "no, according to the Conditional Use Permit." According to the Conditional Use Permit the applicant can have a jazz band, a guitarist or a pianist on a small stage within the bar and a DJ with dancing only for private parties and only within a banquet room. C/Lee said that perhaps the applicant's interpretation of the Conditional Use Permit was incorrect and perhaps the City Attorney would clarify why the applicant said he had a right to charge an admission fee. ICDDIFong said that a nightclub that had a promotion of a known performer would charge an admission fee and for private parties such as weddings there would not be an admission fee. She cited the applicant's statements from previous Planning Commission minutes wherein he testified as follows: "Scribbles would provide upscale dining with a band playing. The last call is at 12:00 midnight. We kept it at 1:00 a.m. so that patrons could finish their drinks and have a cooling off period before leaving the restaurant. There will be no DJ music or any dancing except for private events if they want to dance, like graduation parties or things like that." ICDDIFong went on to say that staffs report indicates that the applicant misrepresented the use to the Planning Commission and the Commission approved the Conditional Use Permit based on what the applicant promised. Mr. Astavakra said that his Conditional Use Permit does not say he cannot charge at the door. He has provided security in accordance with his Conditional Use Permit. He asked Lt. Maxey if he could pay to have the Sheriff's Department on duty for four hours at a cost to him of $500. Seven times there has been no response from the Sheriff's Department. In fact, there was a huge command post outside of Scribbles because the Sheriff's Department believed there would be 2,000 to 3,000 people. The City authorized more than 16 deputies at a cost of $3500 to $4,000 and nothing happened. The fire department came twice on that same night. Scribbles' was not overcrowded and was not over capacity. In fact, it was under the maximum at 562 people including the Scribbles staff members. Scribbles contributed $200,000 in sales tax revenue and property tax revenue aver the past two years. Thirty-seven individuals work at Scribbles. VC/Nelson asked if Mr. Astavakra was typically present on the premises on Thursday evenings and Mr. Astavakra responded "every night, sir." He said he was there until 4:00 a.m. and in fact, when the Sheriff's Department APRIL 11, 2006 PAGE 12 PLANNING COMMISSION comes to his establishment he is there and he talks with them. VC/Nelson asked if Mr. Astavakra had been outside between the hours of 1:00 a.m. and 2:00 a.m. and gone into the Kmart parking lot and Mr. Astavakra said he goes into his parking lot and to the Kmart parking lot. VC/Nelson asked if Mr. Astavakra had witnessed the problems and whether he felt the behaviorwas acceptable. Mr. Astavakra said that four times there have been problems in the Kmart parking lot. Exactly four times Scribbles called the Sheriffs Department to intervene. VC/Nelson asked if Mr. Astavakra had not witnessed some of the activity that others commented on and Mr. Astavakra said that under aged drinking takes place in the Kmart parking lot. Scribbles does not allow under aged drinking and if people want to hang around outside and drink d k at Jr.,d he cannot stop es cannot d them. It is the Sheriff's about it. People drm riffjob to stop them. It happens at Taco Bell across the street too. ClEverett asked if Mr. Astavakra had a copy of staff report and Mr. Astavakra responded that he received it on Friday evening. C/Torng asked Mr. Astavakra when he started with KIIS-FM and Mr. Astavakra said that the flyer was only one flyer for only one event. ClTorng asked why the Sheriffs Department says that every Thursday Scribbles has a special event. Mr. Astavakra said that people do rent the place and he was not saying that they did not. ClTorng said that there were fewer incidents in 2004 and more incidents in 2005 and that was why he was wondering if the special events on Thursday started in 2005. The Conditional Use Permit says no DJ. Mr. Astavakra responded that Thursday night is one night. People mostly rent the facility on Friday and Saturday nights. The complaints are not all Thursday nights. And he wondered why the paper trail started all of a sudden. The condominium complex started complaining about the noise. If you look at the Sheriffs report there are only four complaints during the past year. Nothing happened in 2004 and nothing happened in 2003. And people have complained about sound decibels of 85 to 120. He said he found it hard to believe. This would be like a jumbo jet landing on an air strip and at 2500 square feet away from his place with a Best Western in between and no his landloh dfrom t location and obviously) hisng. In business would suffer the , the owner of the Best Western most. Chair/McManus took exception to Mr. Astavakra's statement that there were only four complaints during the past year. APRIL 11, 2006 PAGE 13 PLANNING COMMISSION Chair/McManus reopened the public hearing. Vince Galloway, 300 Prospectors Road said that although the current discussion is about Scribbles it is a continuation of the Platinum Club that was previously in business on the site. He said he was at a Diamond Bar City Council meeting three, four and five years ago where a lot of these same concerns were voiced and a lot of promises were made about how the problems would be fixed. The noise was so loud that residents with windows facing the club had pictures rattling on their walls. Three homeowners moved away because they could no longer tolerate the noise. Whereas noise is a concern there are other issues. Fall Creels Community is a condominium project consisting of 144 units and approximately 73 percent are Diamond Bar residents that pay taxes and vote. During the history of the club there was never a concern until the level of incidents with the new club escalated and caused the residents concern about public safety within their community. On February 12 the residents met with Sgt. St. Amant and Deputy Clark to share their concerns about drug dealing, overt and public sexual activities and vehicle break-ins. On one Friday night there were 12 to 15 vehicle break- ins and every one was reported to Sheriff's Department. During the entire 25 years that he has lived in the complex there were not that many break-ins. Although they cannot confirm that these incidents involve patrons of Scribbles they are fairly certain because of the increase in the number of incidents that occur primarily on Thursday evening. In fact, to avoid additional confrontations the complex has equipped the back gate with a timer that turns the gate off between 10:00 p.m. and 4:00 a.m. especially on Thursday nights. Now there are reports of people climbing over the gate because they have parked inside the complex and can exit on Prospectors Road and avoid DUI detection. Before the timer was installed five or six residents would take turns standing guard from 10:00 P.M. to midnight believing that if there were a number of residents present the homeowners would not be confronted and people would be less likelyto inflict damage. He said he would not be surprised if a future incident involved guns. The homeowners no longer feel safe and the noise level keeps people awake. The security remains in front of the club and does not venture down the street to see that people are drinking, breaking bottles and disrobing. Rob Eknil, Fall Creek Property, felt that by his own admissions the applicant was in clear violation of Conditional Use Permit No. 2003-01. While there have been numerous incidents at the complex the bottom line is whether or not the applicant is in compliance with the Conditional Use Permit and the fact that the City is sitting at risk when all of the deputies are at one location. APRIL 11, 2006 PAGE 14 PLANNING COMMISSION He felt it was a stretch for the applicant to advertise on the radio and signposts for private parties. Mr. Eknil felt there was little reason to continue the hearing because the applicant publicly admitted he was in violation of the Conditional Use Permit. Eddie Martinez said he has witnessed several of the aforementioned incidents. In fact, his wife was confronted by one of the patrons trying to get into the gate by following her. When she did not let him in he became very upset and threatened her. Mr. Martinez said he reported the incident to the Sheriff s Department. Especially on Thursday nights there is a lot of action in the area, a lot of drinking and people milling about. It is unsettling to the residents to have people hanging aboutthe area because it seems unsafe to be outside and risk possible confrontation. Michael Case, 328 S. Prospectors Road #52, said he serves on the Board of his homeowners association and since Scribbles opened there has not been one meeting during which this issue was not discussed. Residents complain about the noise, traffic, car break-ins, people following residents through the gate, harassment, etc. On several occasions he has seen people hop the gate from the club to get to their cars parked in the condominium complex. it is obvious that the individuals are drinking in the parking lots outside of the club and there are flyers advertising the club strewn about the grounds and the flyers show scantily clad females, which he felt did not meetthe definition of a "private party." On any Thursday, Friday or Saturday one can pass by the club and see 20-30 people waiting outside to gain access and another 20-30 people standing outside on the patio smoking and listening to the music, which is certainly not within the banquet room. Tecommunity the is concerned about safety. He and his wife live on the opposite complex and hear people fighting and driving recklessly in and out of the Kmart parking lot at 1:00 a.m. Even at a distance from the club they can hear the music at 10:00, 11:00, 12:00 and 1:00 a.m. The Board is concerned that something mayor could happen and the residents are thankful that the City has provided a forum for addressing their concerns. Danoush Tehrani, 364 S. Prospectors Road #141 said the noise is terrible and his car was vandalized. The repair cost was $8,000, $1100 of which he paid from his own pocket. He was inside the nightclub once and he paid $10 to the applicant for entry. He saw three different groups on three different stages. The noise is so bad that it keeps him awake on Thursday, Friday and Saturday nights. APRIL 11, 2006 PAGE 15 PLANNING COMMISSION Sharman Haynes concurred with her fellow residents and said she was most concerned about the safety issue. She is single and has been threatened. Clearly, the club is not in compliance with their Conditional Use Permit. Amanda Pechy, 364 S. Prospectors #140 said she also concurred with her fellow residents. She has two small children and she usually sends them to grandma's house on Friday and Saturday night so that they can sleep. She felt it was an infringement on her rights that she could not have her children with her and that they were deprived of their sleep and she should not have to take sleeping pills in order to get rest because the music is so loud and her doors rattle. Henry Lee, Prospectors Road said that he had witnessed Scribbles patrons hiding in the cul-de-sac area, urinating by the gate and climbing the gate to get to their cars. He wondered if the applicant allowed minors to frequent the restaurant and why there was a cover charge. Wen Hui Su, Prospectors Road, said she had the same problems as her neighbors. She has stood outside her unit witnessing non-residents trying to enter through her complex gates. The residents do not want the business to fail but the elders are unable to sleep at night. She has called the Sheriffs Department and asked that the nightclub turn down the music a little bit. The noise level subsides for about 10 minutes and then increases again. And if the applicant really wanted to correct the situation he would make sure the noise level was lowered for the entire evening. The problems occur outside of the business and even if they corrected the noise level there are still a lot of people outside and out of control of the club. How would the applicant be able to correct the problems that occur outside of the club and around her complex? Yumi Branstad, 394 Prospectors Road #107, said she had been in the commercial lending business for about 30 years and believes the Scribbles parcel would be difficult to convert to another use. In her opinion a Conditional Use Permit is an evolving document and when the City approved it the owner probably had a good intention of keeping it that way but when the business does not come in he has to adjust the way he does business and deviate from the original spirit of the Conditional Use Permit. When the owner has someone sign a lease they probably do not foresee that they will have all of the problems. The owner is responsible. Many people come from other countries and learn that they have rights and must respect other people's rights as well. Fall Creek is proud of its project and the fact that it APRIL 11, 2006 PAGE 16 PLANNING COMMISSION has made good use of unused land adjacent to the freeway. While Fail Creek is not extravagant it is a place that the tenants love and it is sad that the residents have to make fortresses out of their homes. Last Friday she was coming home from out of town and drove into her complex about 2:00 a.m. on Saturday morning just about the time the club was closing down. She forgot that the gate was closed and when she tried to gain entry she could not move because she was completely surrounded by people. She was finally able to turn around, drive through the Kmart lot and gain access to her complex through the front area. She said she was ashamed that she had left it to her neighbors to defend the complex because she had no idea what was happening next door. She said it is a very scary situation to her and she believes that the property owners are responsible for keeping harmony with the surrounding community 365 days a year 24 hours a day. When the applicant originally applied for a Conditional Use Permitto operate as a restaurant there was no need to complain because a restaurant would not be intrusive. ChairlMcManus asked Lt. Maxey if there was any reason other than Scribbles for people to congregate in the area on Thursday, Friday and Saturday and Lt. Maxey said none that he was aware of. ACA/Kovacevich responded to Chair/McManus that the Commission could choose to grant a continuance. He said he did not agree with the due process concern raised by the applicant's attorney. This is a quasi-judicial administrative hearing - there are no formal rules of evidence and no "charges." This is the hearing to decide on the revocation and this is the time when everybody presents evidence including the applicant. The applicant received the packet with the staff report and corresponding evidence at the same time the Commission received the information. ICDD/Fong responded to Chair/McManus that the City sent a letter to the applicant a year ago reminding him that he needed to operate within the Conditional Use Permit and not have entertainment that was outside of the approved Conditional Use Permit because the City had received complaints. Chair/McManus asked if a new tenant was obligated under the Conditional Use Permit in effect at the time of the lease and ICDDIFong responded "yes." Mr. Weiser said he disagreed with ACA/Kovacevich and believed that the property owner, adjacent property owners, the Sheriffs Department and the City of Diamond Bar could be involved in protracted litigation. He said he had been through this over and over again with a lot of cities. The City of Los Angeles has the resources to fight this out in the courts and there may be APRIL 11, 2006 PAGE 17 PLANNING COMMISSION policy reasons. He said he has represented motels in the downtown area of San Bernardino. He has nationally published cases and referred to Patel v. Penman, City of San Bernardino Hotel/Motel Association v. City of San Bernardino, Montez v. City of Bellflowerand other recent cases. He asked in the beginning that the City find a middle path and said he had not heard anybody talk about whether there would be a way of mediating the alleged problems without having to put the applicant out of business along with the 37 people who work for nim; any proposals of modifications of the Conditional Use Permit; any ability to sit down with the applicant to see if he has proposals and, instead of getting this City involved in the waste of a lot of taxpayer money and protracted litigation because it will not end here and it will not end with the City Council and there will not be a solution five years down the line. Try to resolve it — it is not an all or nothing proposition. As far as notice, he could have brought in a number of people including the security guards about what they perceive is happening in the area. So, there is good reason to have a continuance in addition to wanting the underlying reports. Mr. Astavakra assured the community that if things continue he will put a security guard in the area to prevent people from jumping over the wall or gate and to make sure things like that never happen. He asked for a chance to at least work on the problem. At the same time he would like the Sheriff's Department to work with them to prevent such occurrences and to protect his investment so that the City does not have to pay for it. As a human being he has a right to voice his opinions and he would like a chance to work it out. C/Lee asked Mr. Astavakra if he understood the nature of the problem and Mr. Astavakra responded affirmatively. C/Lee said he strongly believed that there was no need for this matter to be continued and asked Mr. Astavakra if he agreed. Mr. Astavakra said the problem was not as it was portrayed because he could bring in 20 people from the same condominium complex who would say there was no problem. He could bring various people from the Sheriff's Department who would say there were no such problems as was portrayed in the report. The last report and last incident says no suspects found — everything is okay. ICDD/Fong explained that there was a second "finding" contained in staff's report and there were findings that supported the revocation or modifications of the Conditional Use Permit as well as other options for the Planning Commission. One of the options recommended by staff was to modify the Conditional Use Permit to eliminate an entertainment element, which, according to the applicant through his testimony is ancillary to his restaurant APRIL 11, 2006 PAGE 18 PLANNING COMMISSION - use. The City has not indicated that it would shut down his business. The applicant did not have approval for the entertainment. ICDD/Fong reviewed the Planning Commissions' options: 1) To modify the Conditional Use Permit to eliminate the entertainment; 2) to allow the operation to continue with the entertainment and modify the Conditional Use Permit to add conditions of approval to address the public safety issue and eliminate the nuisance issue; 3) if the applicant desires to continue to have this type of nightclub use he would need to apply to modify the Conditional Use Permit and at the same time the Planning Commission would have the authority to impose additional conditions of approval to address any potential nuisance problem and, 4) the Planning Commission has the authority to say there is no nuisance problem and that the business is operating within the Conditional Use Permit. Chair/McManus asked whether the Commissioners wished to grant the applicant another continuance. C/Lee said he was not in favor of a continuance. Lt. Maxey responded to VC/Nelson that when an individual or business seeks to hire a deputy they believe it will eliminate the problem. Asking one deputy to deal with 700, 800, 900 people presents a safety issue and the department would never station an officer in such a circumstance. Whether the applicant agreed to pay one, two or three deputies, they would not be able to deal with that many people and the balance of officers on duty would be called in to assist and the department would be compromised and the response would fall to the taxpayers of the City of Diamond Bar. The intent would be to make it appear to be a Sheriffs Department problem whereas in realty the problem originated with Scribbles. He saw no benefit of having the applicant pay for a deputy because it would not alleviate the department's responsibility for responding to incidents and it would most certainly have little or no impact on the problems the department has experienced at the location. VC/Nelson said he had a difficult time being convinced that there was no sense on the part of the applicant that no problem existed. He did not like Sheriffs reports being referred to as "allegations." The Commissioners are not judges, just simply citizens. Commissioners are appointed and told that as Commissioners their responsibilities are to act as citizens for the good of the community and it offends him when individuals try to turn this venue into APRIL 11, 2006 PAGE 19 PLANNING COMMISSION a court of law. He said he believed that based on staff's report that the applicant had pushed the envelope in several ways. He was surprised that at his first hearing following a two-year hiatus from the Commission that the applicant had requested a continuance because he was out of town and then to hear an advertisement on KITS -FM radio about a big event on that very Thursday night. He would have thought that in such an instance discretion would have been the better part of valor if the applicant were serious about trying to resolve these issues with the City and the community. He believed that the gravity of this situation dictated immediate action. However, he was not inclined to only consider making a decision tonight. He said he was on the fence about granting the continuance on the condition that until a planned program was worked out that these events should cease and desist and further, that consideration be given as the plan was developed to offer to have representatives from Fall Creek work with the City and the applicant to provide a solution. In short, he was inclined to be fair and work out the problems. He wants the restaurant to stay but the ancillary problem areas need to be dealt with as expeditiously as possible. C/Everett said he was extremely troubled and concerned about the safety issue and he was very concerned about continuing this matter to the next meeting. He said he was equally troubled about allowing the applicant time to respond. He received the packet on Friday and he is still digesting the material. He understood the residents' concerns and had experienced the same frustrations and fears when he lived in another city. As residents each of us have rights and tough as it is sometimes, property owners on a different side of a decision have rights as well. He felt it had been confirmed this evening that staffs report was very clear about violations of the Conditional Use Permit and probable violations of the original intent due to statements by the applicant to the previous Commission. And in his opinion, there had indeed been as was earlier stated, a pushing of the envelope. He said he could not vote tonight on any action without allowing the applicant time to respond by the next meeting. For these reasons he would be inclined to vote in favor of a continuance to the next Planning Commission meeting. C/Torng stated that based on all of the evidence the basis of the Conditional Use Permit was described by the applicant and he felt it was important proof that there was a promise that there would be no DJ and no DJ music except for private events. He felt it was very strong evidence and felt it was not a matter of pushing the envelope but rather the applicant opened the envelope and this was a direct violation of the Conditional Use Permit. This is a public safety issue and what kind of image does this City intend to project? He APRIL 11, 2006 PAGE 20 PLANNING COMMISSION believed that in accordance with the General Plan the City should be a safe and rural community and believed that this was not in the City's image. This matter was postponed from March 14 to today and why should the Commission wait another two weeks. The applicant surely had enough time to talk with the lalpresentation evening. a appreciated the goodnd effort by Y staff and the Sheriffs Department and supported the evidence presented during tonight's meeting. CILee agreed that Commissioners were appointed to work for the common benefit of the people. Although there are no children present tonight to express themselves a mother who spoke about having to send her kids to their grandparent's house to avoid the environment. It behooves the Commission to create a better community for the children. The Commission should decide based on the City's ordinance whether the applicant has kept his promise to comply with the conditions of the Conditional Use Permit. C/Everett moved to continue the public hearing to April 25, 2006. The motion failed for lack of a second. C/Torng moved, CILee seconded to adopt a resolution amending Planning Commission Resolution No. 2003-16 to prohibit any and all entertainment use finding that the current operation of the business is a violation of the approved Conditional Use tPermit; lichat the health, safety and usiness constitutes welfare of the nuisance and threatens p community. VC/Nelson asked if in the event this motion was adopted whether the applicant would be allowed to offer a plan for a modified entertainment use. 1CDD/Fong said the applicant had two options: 1) To appeal the Planning Commission's decision to the City Council, and 2) to apply for a new Conditional Use Permit to allow for the current type of entertainment use. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS:ornglMc e, VC Nelson, ChairNOES: COMMISSIONERS: Everett ABSENT: COMMISSIONERS: None By virtue of the vote, the public hearing was closed. APRIL 11, 2006 PAGE 21 PLANNING COMMISSION 8. PLANNING COMMSSIONER COMMENTWINFORMATIONAL ITEMS: C/Lee believed that residents should trust their government and thanked staff for providing a complicated report. VC/Nelson said his hesitation was not reflective of any disregard for or lack of confidence in this City's staff. Diamond Bar staff is the best there is. C/Everett echoed VC/Nelson's statement and said he voted against the resolution due to the timing and his conviction of what he believed to be due process and a significantly written due process. He thanked staff and the Diamond Bar/Walnut Sheriffs Department and stated he was an advocate and a supporter and trusted both entities. He acknowledged C/Torng for chairing the Wine Soiree, a very successful event. He thanked staff for a terrific birthday celebration. His daughter who grew up in Diamond Bar and now lives in Indiana. She returned to the City for the party and was very impressed with the "community spirit." He said he appreciated the City's recognition of Joe and Lois McManus for their volunteerism and thanked them fortheir excellent service and support to the City of Diamond Bar. He wished everyone a happy Easter. C/Torng congratulated Chair/McManus on his award and thanked C/Everett for his comments. He thanked staff for a very good report that helped make his decision easier. The City celebrated an excellent birthday and the City wants to maintain its good image and he felt the Commission did a good job in that regard today. Chair/McManus thanked staff for a good report and commended the Commissioners for their thoughtful conclusions. More than 22 residents attended tonight's meeting conveying their concerns about a problem they believe needs to be remedied. 9. STAFF COMMENTS AND INFORMATIONAL ITEMS: 9.1 Public Hearing dates for future projects. 10. SCHEDULE OF FUTURE EVENTS: As listed in tonight's agenda. APRIL 11, 2006 PAGE 22 PLANNING COMMISSION ADJOURNMENT: With no further business before the Planning Commission, Chair/McManus adjourned the meeting at 9:38 p.m. Respectfully Subm Nancy Fong Interim Comm it Dev pment Director Joe Mjc anus, Chairman