HomeMy WebLinkAbout5/2/2006 Minutes - Regular MeetingCITY OF DIAMOND BAR
CITY COUNCIL STUDY SESSION
MAY 2, 2006
STUDY SESSION: Mayor Herrera called the Study Session to
order at 5:33 p.m. in Room CC -8 of the South Coast Air Quality Management
District/Government Center, 21865 Copley Dr., Diamond Bar, CA,
Present: Council Members Chang, Tanaka, Tye and
Mayor Herrera. Mayor Pro Tem Zirbes was excused.
Also Present: David Doyle, Assistant City Manager; Michael Jenkins, City
Attorney; David Liu, Public Works Director; Bob Rose, Community Services
Director; Nancy Fong, Interim Community Development Director; Kim Crews,
Human Resources Manager; Ryan McLean, Senior Management Analyst; Linda
Magnuson, Finance Director; Susan Full, Senior Accountant; Isaac Aziz,
Network/GIS Engineer and Tommye Cribbins, City Clerk. Linda Lowry, City
Manager arrived at 5:56 p.m.
ON. Discussion of City Manager's Draft 2006-07 General Fund Budget
► Council's FY 2006-07 Goals and Objectives
1) COUNCIL'S FY 2006-07 GOALS AND OBJECTIVES
M/Herrera asked if this matter could be discussed at a future study
session when MPT/Zirbes was available and ACM/Doyle responded that
there was sufficient time to discuss the draft at a future study session prior
to the Council taking action in June.
2) DISCUSSION OF CITY MANAGER'S DRAFT 2006-07 GENERAL FUND
BUDGET.
FM/Magnuson gave an overview of the initial proposed budget and
pointed out that there were a number of decision packages that had not
yet been included. Revenues are estimated at $20,182,310 for FY 2006-
07 and included in that amount is $715,850 for economic development.
The sales tax revenue was increased slightly to include Target from
October 2006. Revenue from "other agencies" is down significantly
because in FY 2005-06 the City sold Proposition A funds and received
about $240,000 in HUD monies for the Diamond Bar Center, a one-time
revenue item. Current service charges are higher primarily due to
including estimates for developer fees related to the Target and Brookfield
Homes projects.
ICDD/Fong responded to M/Herrera that the door charge for Brookfield
Homes was conservatively estimated for 30 homes. According to
MAY 2, 2006 PAGE 2 CC STUDY SESSION
Brookfield they propose to close escrow on 66 single-family homes by
June 2007.
FM/Magnuson continued that the current draft includes estimated
appropriations of $18,568,535 which includes adjustments for personnel
cost increases (4.5% COLA); benefit enhancements (increases to life,
accidental death and dismemberment and dental insurance); increase in
auto allowances for City Council from $250 to $300 per month, Executive
Management to $250 per month and Exempt Management $120 per
month. She noted that CM/Lowry was not included because she has a
separate contract. The benefit allotment has been increased by $50 per
month. The transfer out to CIP is $1,701,692. Staff intends to present the
CIP program to the City Council at its next budget study session. General
Fund Reserves at the end of FY 2006-07 are estimated to be
$23,340,507.
ACM/Doyle assured M/Herrera that with the estimated increases the City
would not be touching its reserves in order to balance the budget. Several
decision packages are under consideration, but it is staff's goal to present
a balanced budget.
ACM/Doyle referred Council to Page 21 of the budget. ACM/Doyle pointed
out that the increase related to the increase in the auto allowances. The
most significant downturns were in salaries because last year during the
election there was a portion of time when two Council Members
overlapped for salaries and benefits. The big increase is in Special Legal
Services (Page 24) due to a number of special enforcement services
anticipated by the City's Prosecutor. In addition, there is a $50,000 set
aside for updating and refining the City's Municipal Code.
ACM/Doyle pointed out that the big change in the City Manager's budget
(Page 25) is that there are no allocations for elections.
FM/Magnuson reported that the Finance budget was basically the same
except for a decrease in professional services because the infrastructure
report should be finalized during the current year.
HRMICrews reported that her division's budget was virtually unchanged
except for an increase in professional services ($12,000) an estimate for
actuarial services as required by SB 34.
ACM/Doyle reported on the Information Systems budget. He pointed out
salary increases and an increase in hardware (printer) purchases.
ACM/Doyle drew attention to the $143,650 Computer Maintenance item
and explained that if the City did nothing else, it was today's cost of doing
business in terms of maintaining the licensing for all of the applications the
City is purchasing and bringing online. The increase in Professional
MAY 2, 2006
PAGE 3 CC STUDY SESSION
Services is directly related to the GIS. ACM/Doyle explained that staff was
increasing its tape (data backup) library. There is one server to replace
which will put the City in a "maintenance" mode. The budget also contains
$20,000 for replacing the Scala Hardware (DBTV).
ACM/Doyle explained the General Government portion of the proposed
budget. With respect to Public Information, staff is recommending the 19 -
hour part time position be increased to 30 hours per week with pro -rated
benefits. He pointed out the $50,000 Phase II City Marketing Plan item
under professional services, the second phase cost of determining a D.B.
"brand."
ACM/Doyle stated that there is a 5% increase in the Sheriffs Department
contract. In addition, $24,000 has been allocated for the DB Fingerprint
program (Page 57).
ACM/Doyle said that the Volunteer Patrol budget was significantly reduced
because the Workers' Compensation Expenditure was eliminated.
Accordingly, the Annual Recognition Dinner and Neighborhood Watch
Picnic items were increased to provide more incentives.
ACM/Doyle reported that there was no change in the Wildlands Fire
contract; $20,000 was allocated for firebreaks Lot A-3 as part of the City's
commitment to the property the City intends to purchase.
ACM/Doyle stated that there was a significant increase in the cost for
animal control services, and the Society's recommended offset was that
the City could raise dog license fees accordingly.
ACM/Doyle responded to M/Herrera that the ACS contract was up for
renewal, and the contract factors -in potential increases. The primary
reason for the increase was due to the increased cost to the Humane
Society for doing business. He responded to M/Herrera that he had not
received any complaints during recent months about animal control
services except for confiscated dangerous animals. Most calls had to do
with wildlife concerns.
Council Members expressed concern about the 25% increase in the
contract cost for the Inland Valley Humane Society. Discussion ensued
and the conclusion was that the Council would engage in further
discussion regarding the contract renewal.
ICDD/Fong explained that the $300,000 increase in Community
Development includes personnel increases, General Plan Housing
Element updates and annexation issues.
MAY 2, 2006 PAGE 4 CC STUDY SESSION
TCDD/Fong stated that the only change for the Building & Safety contract
was the addition of an in-house technician.
ICDD/Fong reported that the only change to the Neighborhood
Improvement budget was the addition of one part-time position.
ICDD/Fong stated that the only increase with respect to the Economic
Development budget was in the Professional Services area because the
City intended to develop more specific plans as discussed during the
City's January Economic Workshop.
CSD/Rose reported that the Community Services budget had an overall
increase of $392,275 with a $165,295 increase in revenue. Staff added a
budget item for the Trails Master Plan update to upgrade the graphics.
Staff is applying for a number of grants and believes that better graphics
would bolster the grant process.
CSD/Rose stated that staff believes the budget for the Diamond Bar
Center is under control and that projections are accurate. The revenue
projection was increased to $500,000 per year. The CIP portion includes
money to purchase electrical blackout shades for the Grandview ballroom
- $38,000. Staff believes the purchase will result in increased use during
daylight areas.
M/Herrera asked if the facility could dim the lights rather than shut them off
completely.
CSD/Rose responded yes, that staff was attempting to accomplish the
dimmer installation during this fiscal year and according to the electrical
plans the capability should already exist.
C/Tye asked how staff budgeted replacement costs to keep the Diamond
Bar Center up-to-date.
CSD/Rose responded that it would require a depreciation budget that
CM/Lowry asked staff to prepare this year.
CSD/Rose spoke about maintenance issues at the City's Parks.
Discussion ensued regarding the oh of July fireworks show being moved
from Sycamore Canyon Park to D.B.H.S. due to the construction of
Target, etc.
CSD/Rose asked Council to consider converting the fireworks show to an
electronic timing show to improve the quality of the event beginning in
2007. This matter was slated for further discussion.
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MAY 2, 2006 PAGE 5
PUBLIC COMMENTS: None Offered.
CC STUDY SESSION
ADJOURNMENT: With no further business to come before the City
Council, M/Herrera adjourned the Study Session at 6:45 p.m.
Tommye ribbins, City Clerk
The foregoing minutes are hereby approved this 16th day of — may
2006. —'
CAROL HERRERA, Mayor
MINUTES OF THE CITY COUNCIL
REGULAR MEETING OF THE CITY OF DIAMOND BAR
MAY 2, 2006
STUDY SESSION: 5:32 p.m., Room CC -8, The Government
Center/SCAQMD Auditorium, 21865 Copley Dr., Diamond Bar, CA.
► Discussion of City Manager's Draft FY 2006-07 General Fund Budget
ON. FY 2006-07 Council Goals and Objectives
Public Comments
M/Herrera adjourned the Study Session at 6:45 p.m. to the Regular City Council
Meeting.
CALL TO ORDER: Mayor Herrera called the Regular City Council
meeting to order at 6:52 p.m. in The Government Center/SCAQMD Auditorium,
21865 Copley Dr., Diamond Bar, CA.
MlHerrera reported that City Council began its evening with a Study Session at 5:32
p.m. that included discussion of the FY 2006-07 Budget and FY 2006-07 Goals and
Objectives. Action on these items will take place at a future City Council meeting.
PLEDGE OF ALLEGIANCE: M/Herrera led the Pledge of Allegiance.
INVOCATION: Jim Price, Sr. Pastor, Diamond Canyon Christian
Church led the Invocation.
ROLL CALL: Council Members Chang, Tanaka, Tye and Mayor
Herrera. Mayor Pro Tem Zirbes was excused.
M/Herrera announced that MPTIZirbes was in Sacramento preparing for surgery on
Thursday morning. She wished him a speedy recovery and said that he intended to
return to the dais on May '16 or June 6.
Staff Present: Linda Lowry, City Manager; Michael Jenkins, City
Attorney; David Liu, Public Works Director; Bob Rose, Community Services
Director; Linda Magnuson, Finance Director; Nancy Fong, Interim Community
Development Director; Marsha Roa, Public Information Manager; Kim Crews,
Human Resources Manager; Ryan McLean, Senior Management Analyst, and
Tommye Cribbins, City Clerk.
APPROVAL OF AGENDA.: As presented
1. SPECIAL PRESENTATIONS, CERTIFICATES, PROCLAMATIONS:
1.1 MlHerrera presented City Tiles to former Traffic and Transportation
Commissioner Tony Tomg and former Planning Commissioner Jack
Tanaka. Jody Roberto, representing Assemblyman Bob Huff,
MAY 2, 2006 PAGE 2 CITY COUNCIL
presented Certificates to outgoing Commissioners Tony Torng and
Jack Tanaka.
1.2 M/Herrera and Council Members presented Certificates of
Recognition to Lorbeer Middle School students for receiving the 2005-
06 CADA/CASL Outstanding Program Award for maintaining a
balance of extracurricular activities. Jody Roberto, representing
Assemblyman Bob Huff, presented Certificates of Recognition to the
students.
BUSINESS OF THE MONTH:
1.3 M/Herrera presented a City Tile to Dr. Michael S. Tracy, DVM owner
of D.B. Veterinary Clinic as Business of the Month for May 2006. A
slide presentation followed.
2. CITY MANAGER REPORTS AND RECOMMENDATIONS: CM/Lowry
announced that the Los Angeles County Registrar has asked the City to
assist in recruiting poll workers for the June 6t" Primary Election. Anyone
interested in serving is asked to call the Registrar's Office at 1-800-815-
2666, Option 7. The number will be scrolled on DBTV 3 and will be included
on the City's Website. Persons interested in obtaining more information can
visit www.lavote.net and click on the Voter/Poll Worker link or call City Hall.
3. PUBLIC COMMENTS: Vince Galloway, 300 Prospectors Rd.,
spoke about Gentle Springs Ln., being an access road that extends from the
back gate of the Fall Creek community to Diamond Bar Blvd. He stated that
because the street is a private street the residents are at the mercy of the
adjacent business owners for repair and maintenance of the street. He
asked if there was a method for the homeowners to petition the City for the
street to be made public in order to provide consistent maintenance.
Delilah Knox Rios, Chairman, Diamond Bar Chamber of Commerce stated
that the Chamber is co -sponsoring with the City, an Economic Conference
on May 10th from 7:30 a.m. to 1:30 p.m. at the Diamond Bar Center. The
Conference includes a bus tour of economic opportunities. Registration is
available through the Chamber at 909-598-3747 or interested parties may
call City Hall.
Roger Myer said that he had lived in D.B. for more than 33 years and keeps
hearing that the City needs to reduce traffic on its streets. He said he did not
understand why there were no ramps from the SR60 west to the SR57 north
and from the SR57 south to the SR60 east. He asked the City Council and - the Traffic and Transportation Commission to petition Sacramento for the
ramps.
MAY 2, 2006
PAGE 3 CITY COUNCIL
Irene Wang, D,B. Librarian, informed the public that the D.B. Library would
be closed for about: 11 working days beginning May 8 to May 22 for parking
lot resurfacing. During the closure Rowland Heights, Hacienda Heights and
La Puente libraries will be open to serve the D.B. residents. Hours of
operation and locations will be posted at the D.B. Library.
Ms. Wang also announced that the free seminar "Secrets to UC Admissions"
was rescheduled for Wednesday, May 24 from 6:30 P.M. to 8:00 p.m.
Lt. Michael Flocks, Battalion Chief, Los Angeles County Fire Department
said he looked forward to continuing to provide the highest level of
emergency service for D.B.
Leticia Pacias, Community Services Representative, Los Angeles County
Fire Department invited residents to the annual "East Region Fire Service
Day" on Saturday, May 13 from 10:00 a.m. to 4:00 P.M. at 17056 E. Gale
Avenue.
Pat Savage, Principal, Armstrong Elementary School introduced Christin
Whatley, School Librarian. A couple of weeks ago the school librarians and
school library programs were recognized at a "Friends of the Library"
luncheon. Ms. Whatley and Ms. Savage discussed the school library
program and the support it receives from the D.B. Library and "Friends of the
Library."
Rick Rogers said he supported the effort to build a new library in D.B. and
urged the Council Members to support the effort as well. This effort has been
a priority for the community for many years. Several years ago a surrey
found that the residents' first priority was a community/senior center and
number two on the list was a new library. The Community Center has been
built and it is time for the community to turn its attention to the construction of
a new library. In a recent survey more than 75% of the residents indicated
the City needed a new library. Addressing previous speakers' comments, Mr.
Rogers stated that there continued to be more and more publications and
books printed, large numbers of individuals patronizing the library and
affluent communities finding that new library facilities were warranted for their
communities. "No new taxes" was CITye's popular campaign pledge.
However, he believed that the situation deserved a second look. The
residents are asking that the measure be placed on the ballot in order to
allow the voters to decide whether or not they want to assume the liability of
funding a new library. He saw no conflict in Council Members supporting the
matter being placed on the ballot and personal views on "no new taxes." If
the measure is placed on the ballot individuals would be free to lobby and
campaign against it.. He agreed that most people would be opposed to taxes
that would go to the State. However, if residents decided to support the
Library the benefits would remain in D.B. People are rightfully concerned
about spending the City's money and he urged the Council to consider a new
Library an investment rather than an expense.
MAY 2, 2006 PAGE 4 CITY COUNCIL
Marsha Hawkins, President "Friends of the Library" and Library Task Force
member, said that because there were so many questions from the
community without response she asked to play a City produced DVD
explaining the Library Bond Measure.
M/Herrera asked Ms. Hawkins to come back in two weeks so that the item
could be placed on the agenda.
4. RESPONSE TO PUBLIC COMMENTS: CM/Lowry responded to
M/Herrera that PWD/Liu would contact Mr. Galloway regarding the process
that would be required for each of the property owners to vacate Gentle
Springs Ln. to the City.
CM/Lowry responded to Mr. Myer that she believed there were no such
ramps forthe same reason the SR57 overlays the SR60. When construction
occurred in that decade it was done inexpensively and unfortunately, D.B.
was the recipient of the aftermath of construction without appropriate long-
term investment in the infrastructure.
M/Herrera stated that both staff and Council lobby constantly with
Sacramento and Washington D.C. for transportation dollars to fix the
problems in D.B. and adjacent areas.
CM/Lowry further stated that the City has engaged in a joint venture with the
City of Industry and MTA to prepare concepts for what would be required to
remedy the interchange areas. Unfortunately, it falls to local jurisdictions to
assume the initiative to deal with a State -generated issue that impacts the
quality of life for local residents. Tomorrow, ACM/Doyle will be in
Sacramento attending a conference and representing a new entity called the
"Four Corners Transportation Coalition" on behalf of the cities of Brea, D.B.
Chino Hills and Pomona in an attempt to expand the coalition to show that
local government is prepared to take initiative and gain partnerships with the
private sector and public agencies. The interchange is significant to the
quality of life for D.B. and is of national significance with regard to delivery of
goods across the United States.
M/Herrera commended the City for taking leadership in creating the coalition
to pursue the dollars by gaining the attention of government officials in
Sacramento and Washington D.C.
5. SCHEDULE OF FUTURE EVENTS:
5.1 Neighborhood Traffic Management Program Meeting —May 4, 2006 —
7:00 p.m. (for neighborhoods of Armitos PI., Between Pantera Dr. and
Top Ct. and Pantera Dr. between Armitos PI. and Bowcreek Dr.)
Diamond Bar Community Center Pine Room, 1600 Grand Ave.
MAY 2, 2006
PAGE 5 CITY COUNCIL
5.2 Planning Commission Meeting — May 9, 2006 — 7:00 p.m., Auditorium,
AQMD/Government Center, 21865 Copley Dr.
5.3 D.B. Chamber of Commerce — "Building Success in the Southeast
San Gabriel Valley"— May 10, 2006 — 7:30 a.m. — 1:00 p.m., D.B.
Center, 1600 Grand Ave.
5.4 Traffic and 'Transportation Commission Meeting — May 11, 2006 —
7:00 p.m., Hearing Board Room, AQMDIGovernment Center, 21865
Copley Dr.
5.5 City Council Meeting — May 16, 2006 --- 6:30 p.m., Auditorium,
AQMDIGovernment Center, 21865 Copley Dr.
5.6 Neighborhood Traffic Management Program Meeting — May 17, 2006
-- 7:00 p.m. (for neighborhoods of Bent Twig Ln. and Adel
Ave./Gerndal St.) Room CC -6, AQMDIGovernment Center, 21865
Copley Dr.
6. CONSENT CALENDAR: C/Tye moved, C/Tanaka seconded to approve the
Consent Calendar as presented. Motion carried by the following Roll Call
vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye, M/Herrera
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: MPT/Zirbes
6.1 APPROVED CITY COUNCIL MINUTES:
6.1.1 Study Session of April 18, 2006 —as submitted.
6.1.2 Regular Meeting of April 18, 2006 — as submitted.
6.2 RECEIVED AND FILED PLANNING COMMISSION MINUTES
6.2.1 Regular Meeting of March 28, 2006
6.2.2 Regular Meeting of April 11, 2006
6.3 RECEIVED AND FILED TRAFFIC AND TRANSPORTATION
COMMISSION MINUTES — Regular Meeting of January 12, 2006.
6.4 RATIFIED CHECK REGISTER — containing checks dated April 14
through April 27, 2006 in an amount totaling $1,431,040.19.
6.5 REVIEWED AND APPROVED TREASURER'S STATEMENT —
Month of March 2006.
MAY 2, 2006 PAGE 6 CITY COUNCIL
6.6 DENIED CLAIMS:
6.6.1 Filed by Frances Lopez on April 4, 2006.
6.6.2 Filed by Cynthia K. Moeder on February 15, 2006.
6.7 APPROVED NOTICE OF COMPLETION FOR SULLY -MILLER
CONTRACTING CO., INC. FOR NORTH WALNUT DRIVE STREET
REHABILITATION PROJECT (BETWEEN THE WESTERLY CITY
LIMITS AND LEMON AVENUE).
6.8 APPROVED SETTLEMENTS FOR TWO (2) CLAIMS FOR
DAMAGES TO CITY PROPERTY.
6.9 (a) ADOPTED RESOLUTION NO. 2006-35 DECLARING THE
CITY'S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR
LANDSCAPE DISTRICT NO. 38 AND SETTING THE PUBLIC
HEARING FOR JUNE 6, 2006.
(b) ADOPTED RESOLUTION 2006-36: DECLARING THE CITY'S
INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR
LANDSCAPE DISTRICT NO. 39 AND SETTING THE PUBLIC
HEARING FOR JUNE 6, 2006.
(c) ADOPTED RESOLUTION NO. 2006-37: DECLARING THE
CITY'S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR
LANDSCAPE DISTRICT NO. 41 AND SETTING THE PUBLIC
HEARING FOR JUNE 6, 2006.
6.10 (a) ADOPTED RESOLUTION NO. 2006-38: ESTABLISHING A
COMPENSATION PLAN CONSISTING OF SALARY RANGES AND
BENEFITS FOR ALL CLASSES OF EMPLOYMENT EFFECTIVE
MAY 2, 2006; RESCINDING RESOLUTION NO. 2006-16 AND
RESOLUTION NO. 2005-36 IN THEIR ENTIRETY.
(b) ADOPTED RESOLUTION NO. 2006-39: SETTING FORTH
PERSONNEL RULES AND REGULATIONS REGARDING THE
PAYMENT OF SALARIES, SICK LEAVE, VACATIONS, LEAVES OF
ABSENCES, AND OTHER REGULATIONS EFFECTIVE MAY 2,
2006; RESCINDING RESOLUTION NO. 2005-36 IN ITS ENTIRETY.
7. PUBLIC HEARINGS:
7.1 CONTINUED PUBLIC HEARING—ADOPT RESOLUTION NO. 2006 -
XX: APPROVING MODIFICATION TO CONDITION NO. 5. A (3) OF
CITY COUNCIL RESOLUTION NO. 2005-60 APPROVING CUP NO.
2004-01, DEVELOPMENT REVIEW NO. 2004-19 AND VARIANCE
NO. 2004-01.
MAY 2, 2006 PAGE 7 CITY COUNCIL
ICDDIFong reported that this item was a request for Council to modify
the Conditional Use Permit approved in December 2005. The
approval is requested by the applicant and applies to only one
condition of approval. When Council approved the renovation of the
Country Hills Towne Center one of the conditions was that all of the
buildings indicated in "blue" would have to be completed prior to
issuing building permits for the two new buildings indicated in "yellow."
In addition, the market would have to be in operation prior to
releasing occupancy for the new three-story medical/office building.
At the time of approval the applicant did not have a market tenant.
Since approval, the applicant has signed a market tenant for the
building and has continued to proceed with Tenant Improvements.
Demolition permits were issued for removal and replacement of the
building. The request for the change would allow the applicant to
speed up the construction of the entire shopping center including the
renovation. Specifically, the request is to allow for the issuance of
building permits for the two new buildings as long as the "blue"
shaded areas are in plan check. The second part of the request is
that the City would not release occupancy for the new two-story
building unless there is substantial renovation of the existing buildings
and, the City, would not release occupancy for the new building until
the market was in operation. The remaining conditions would remain
intact. Staff recommends adoption.
C/Tanaka asked if there would be any conditions that the sections
marked in "blue" be completed before any of the others begin.
ICDDIFong responded that prior to the City releasing occupancy for
the two-story building the blue portion would be required to be in
"substantial" construction. Before releasing occupancy for the new
two-story building everything including the site improvements would
have to be completed.
C/Tanaka said his understanding was that as the market construction
was occurring facades and towers would be completed in the blue
area prior to any construction in the yellow areas.
ICDDIFong confirmed that C/Tanaka's understanding was in
accordance with the existing condition.
C/Chang said he shared C/Tanaka's concern. He felt the City should
have an opportunity to review the market contract to establish its
commitment to locating in the shopping center before making a
decision to reverse the original conditions. The Council and residents
most certainly want to support Mr. McCarthy's efforts and want the
process done correctly. He proposed a contingency subject to the
City's receipt of a signed contract for occupancy and indicated that
Mr. McCarthywas free to strike out confidential information as long as
MAY 2, 2006 PAGE 8 CITY COUNCIL
the name was evident.
ICDD/Fong explained that the Council had authority to impose
additional conditions.
Mike McCarthy gave a slide presentation on the progress of the
demolition and construction. He stated that the plan is to expedite the
construction of the entire shopping center. With there being only
three long-term tenants the intent is to minimize impacts to new and
existing tenants and to schedule most of the construction while the
center is basically empty. The request for the modification is to get the
incubated tenants to their proposed location as quickly as possible
and to complete the shopping center remodel in an expeditious
manner for safety concerns, to minimize the eye -sore and not
interfere with new tenant occupancy.
C/Tye said that during a December meeting he asked Mr. McCarthy if
he was okay with staff's report and its restrictions; to which, Mr.
McCarthy responded that he was. C/Tye wanted to know what had
changed in five months.
Mr. McCarthy stated that he had made a mistake in overlooking this
particular part of the Variance and in hindsight said he would have
worked with staff to have that portion modified because he was
experiencing timing problems on the job site.
C/Tye thought at the time he was very specific about asking Mr.
McCarthy if those restrictions, that there would be no new buildings
until the remodel was done, was okay with him. C/Tye said that
staffs report projected sales tax revenue of approximately $300,000
for the City according to the applicant and he wanted to know how Mr.
McCarthy arrived at that number.
Mr. McCarthy responded that he believed it was a rough projection by
estimating $150 or $200 per sq. ft. spread over 160,000 sq. ft. or
150,000 sq. ft. $200 per sq. ft. of 150,000 sq .ft. is $30 million of
sales per year and 1 percent is $300,000.
C/Tye asked Mr. McCarthy if his projections were correct given that
the majority of the square footage of grocery store would not produce
sales tax and the majority of the new square footage of medical would
not produce sales tax.
Mr. McCarthy responded that the 150,000 sq. ft does not include the
medical office building and the AAA building. The grocery store
projects sales of over $20 million per year, which equates to $500-600
per sq. ft. Approximately 30 percent of the grocery store goods are
taxable. Thirty percent of $600,000 is about $200 per sq. ft. for that
MAY 2, 2006 PAGE 9 CITY COUNCIL
space and therefore, the map is correct.
C/Tye said that staff indicated the reason for the request was for the
renovation to proceed as quickly as possible and to minimize tenant
displacement. He asked Mr. McCarthy to explain how the modification
would minimize tenant displacement since the current tenants have
already been put in an incubation area. And, by the way, there are
other empty areas that could be used such as the Warehouse Record
store area. He said he was not sure how modifying the conditions
would cause: less disruption.
Mr. McCarthy felt that a good objective was to get all tenants in place
at the same time so that when the center had its Grand Opening, for
example, everyone would be in their correct locations with no one in a
month-to-month position.
C/Tye explained that Von's recently completed a major remodel
without shutting down its store and what would prevent the
contractors from allowing the businesses to continue operating during
refurbishment.
Mr. McCarthy said that tenants would have to continue operating but
their businesses would suffer. When the safety scaffolding and
platforms go up to protect the businesses underneath, it creates a
"tunneling" effect into shop
spaces. Also, all signs come down. At Von's there were less than 10
tenants and this property will have over 35 tenants with a lot more
moving pieces. In his opinion, Von's was a lot cleaner and was able to
move the remodel forward more expeditiously without hurting but a
handful of tenants in in-line spaces.
C/Tye believed that the Council's objective was to secure a viable
tenant for the center and the center has a viable tenant in H -mart. In
the minutes of the March 28 Planning Commission meeting Mr.
McCarthy indicated that completion of the project was out of his
hands because it would depend on when H -mart would open for
business — it could be the end of 2006 or the end of 2007. So, is
there no commitment from H -mart from the signing of the lease when
they would occupy the building?
Mr. McCarthy said he would have to look at the lease but he has seen
. projects delayed for many reasons. Currently, the market is moving
forward with a target opening date of March 2007.
C/Chang asked Mr. McCarthy if he had a signed contract with H -mart.
MAY 2, 2006 PAGE 10 CITY COUNCIL
Mr. McCarthy responded, Yes, that it was signed in December; and
that he would not mind giving the City a copy of the contract.
C/Tanaka said he was concerned about the entire center being under
construction and nothing being completed. He referenced the
Planning Commission Minutes noting a statement that the whole
project may take three to four years to be completed. In his opinion,
incubation and relocation creates its own turmoil to a business owner
and a contributing factor might be the leases that the business owners
are asked to sign at a lease rate of two or three times the current rate
without a drop of paint on a building and without a single tree being
planted to improve landscaping to make it pedestrian -friendly. He felt
that to avoid some of the turmoil during construction temporary
banners could indicate that businesses were open. He said he was
afraid that once tenants were removed to incubation locations the
shoppers would assume the business had left the center rather than
trying to locate the business at its secondary location. He said it was
his understanding that a restaurant would reside in the second
building and he wanted to know where the Tae Kwon Do studio would
be located.
Mr. McCarthy responded that with respect to the timing his concern
was the same as C/Tanaka's concern, to not have a project under
construction for four years. The modification would allow him to finish
the project in a reasonable amount of time. The way that it is
currently drafted the project could take an additional three to four
years to complete. His comment to the Planning Commission was
based on the way the CUP conditions were currently drafted.
Secondly, he would make efforts to put up banner signs to keep
tenants viable occupants of the center. Relative to the financial
transactions nearly 90% of the deals under lease at this time are
conditioned upon a shopping center being remodeled and tenants will
not pay a higher rate unless he invests the money in the center.
Tenants are holding that as a condition, and the center is readily
agreeing to that condition. Relative to the incubation tenants, Tae
Kwon Do was moved and the rest of the tenants excluding the
bookstore are under Letters Of Intent negotiations for an area above
the restaurant space (second floor). Those businesses are more
service-oriented businesses. The final location of Tae Kwon Do is
under consideration.
MJHerrera asked who pays for the tenant improvements when tenants
are shuffled around to new locations?
Mr. McCarthy responded that he prepared the space for Tae Kwon Do
and gave them a month's free rent for their move. In other cases
those service tenants were already in place. Since all of the other
tenants (with the exception of perhaps one tenant) are already in their
MAY 2, 2006 PAGE 11 CITY COUNCIL
incubation locations there are no further considerations. Once the
new spaces are ready to occupy new leases will be let and the
conditions for tenant improvements, rent, credit, and use will be
determined.
C/Tye asked why it would be necessaryto modify the Conditional Use
Permit since the tenants have been moved to their incubation
locations.
Mr. McCarthy said it would be to shorten the construction time from
three to four years.
C/Tye asked how modification of the current CUP would help the
process.
Mr. McCarthy referred C/Tye back to the modification plan and
indicated that the real objective was to compress the construction
schedule by starting work on XX building as soon as possible,
relocate the current tenants to the new building, demolish the existing
building and build the new building.
C/Tye felt the old warehouse building would serve the purpose, and
what Mr. McCarthy was proposing seemed to him more convoluted.
He asked what other tenants would need to be removed from the
current area scheduled for remodel.
Mr. McCarthy responded the Bank of America Ready Teller.
Mr. McCarthy explained that he has leases and letters of intent signed
with existing tenants and new tenants so as certain areas are full
there is no room left to incubate tenants. There are other leases
currently being negotiated for space. He is in a bind to get a new
building constructed in order to relocate the tenants. It could verywell
be three to four years before tenants could be located to their new
areas so that he could proceed to demolish the current building and
build the medical/office building. The dilemma is that there is no more
space, and leases call for certain occupancy dates, and the objective
is to get them in and up and running.
M/Herrera opened the Public Hearing at 8:25 p.m
Marie Buckland wanted to know why the Council would prevent the
center from moving forward more quickly because she felt delays
would hurt the existing businesses.
Yumi Branstad, a construction lender, explained that there would be a
great savings in construction costs and shortening of the timetable if
the Council approved the modification. Whenever there is
MAY 2, 2006 PAGE 12 CITY COUNCIL.
construction the merchant suffers and in three to four years most all
of the current merchants would almost certainly be gone from the
center. If there is away for the developer to shorten the construction
period at a significant savings it would be good for the center and for
the community.
M/Herrera closed the Public Hearing.
ICDDIFong explained that the contractor was obligated to provide
renovation for all of the buildings. If the project were in plan check the
City would give the applicant a permit to build the two new buildings.
If the applicant has substantial construction occurring defined as
completion of framing, towers, etc. occupancy would be granted so
that tenants could move into the north side of the two-story building.
Occupancy would not be granted for the three-story building until
everything else was completed and the market was operating.
C/Chang moved to Adopt Resolution No. 2006 -XX: Approving
modification to Condition No. 5. A (3) of City Council Resolution No.
2005-60 approving Conditional Use Permit No. 2004-01,
Development Review No. 2004-19 and Variance No. 2004-01 upon
delivery of a copy of the signed lease agreement between the
applicant and H -mart for the market space anchor store. The motion
died for lack of a second.
C/Tye said he had not heard anything to indicate the City should
change the Conditional Use Permit approved five months ago
because the Council was concerned about two new buildings being
constructed before the current shopping center was renovated. Now
that demolition is underway the City needs to keep that leverage to
make sure that the renovation is accomplished. He appreciated the
applicant's presentation. However, if the idea was to modify the
Conditional Use Permit in order to move a B of A ATM machine, it
was to him not an overriding concem and would not delay renovation
of the shopping center. The City needs the center to be renovated
and up and running as soon as possible and he views the confusion
and extraneous issues with the two new buildings as a separate
issue.
C1Tye moved, C/Tanaka seconded to direct staff to return with a
Resolution of denial at the May 16, 2006 meeting.
C/Tanaka said he would be more comfortable to grant the applicant's
request once the market was completed. And were the applicant to
make such a request, it should be made to the Planning Commission.
MAY 2, 2006 PAGE 13 CITY COUNCIL
C/Chang commented that the proposed resolution would give the
applicant a little flexibility to render the center efficient at the least
cost. He said he saw little difference and believed that staff would
adequately imonitor the situation. The Council should not kick this
back to the Planning Commission.
C/Tye said his observation was that if there was no difference the
original approval should remain in effect. This matter is not being
kicked back to the Planning Commission. If Mr. McCarthy wants to
come back to the City for modification at some future date it would go
through the Planning Commission. If he (C/Tye) were the developer
and he wanted to build a three-story building on the south end of the
property and a two-story building on the north end, he would hustle to
complete the remodel so that he could carry on with the rest of the
program.
Motion carried by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Tanaka, Tye, M/Herrera
NOES: COUNCIL MEMBERS: Chang
ABSENT: COUNCIL MEMBERS: MPT/Zirbes
7.2 APPEAL THE PLANNING COMMISSION'S DECISION TO MODIFY
CONDITIONAL USE PERMIT NO. 2003-01 ELIMINATING THE
ENTERTAINMENT USE ASSOCIATED WITH SCRIBBLES GRILLE
AND RESTAURANT LOCATED AT 245 GENTLE SPRINGS LANE.
ICDD/Fong stated that three years ago the Planning Commission
issued a Conditional Use Permit for Scribbles Grille and Restaurant
based on a bar and limited entertainment consisting of a jazz band,
guitarist or pianist within the small stage. In addition, a DJ and
dancing were allowed for private parties within the banquet room.
Since the approval and more especially within the past year and
recent couple of months there has been a lot of public safety incidents
that required Los Angeles County Sheriffs Department to significantly
increase its public safety resources to respond to that location. As a
result, staff recommended that the Planning Commission consider a
modified CUP. The first public hearing was scheduled for March 14'h
and at the request of the applicant, the Public Hearing was continued
to April 11. At that meeting the Planning Commission received staffs
report, testimony from nine Fall Creek condominium complex
residents, the Sheriff Department, the applicant and the applicant's
attorney. Following deliberation the Planning Commission determined
that Scribbles was not operating in conformance with the approved
Conditional Use Permit and that the business operation threatened
the public health and safety of the community. As a result, the
Planning Commission revoked the entertainment use on April 11,
2006. Since then the applicant has appealed the Planning
MAY 2, 2006 PAGE 14 CITY COUNCIL
Commission's action. In the appeal the representative claims that the
City has falsely accused Scribbles of having a well-known DJ provide
entertainment, and running a nightclub and charging admission fees.
After the Planning Commission's revocation of the entertainment use,
Scribbles continued to have entertainment on Thursday nights. Staff
issued citations on April 13, April 20 and April 28 for non-compliance.
Today residents living near the facility provided staff with a copy of a
Scribbles website that clearly demonstrates the club advertising
entertainment as a nightclub in defiance of the approved CUP.
ICDD/Fong provided the applicant with a copy of the website
information she included in staffs report. Scribbles also claims that
there is no evidence that the facility caused any alleged public health
and safety concerns and incidents.
Lt. Joe Maxey stated that over the last couple of years there have
been many, many calls for service at Scribbles and that D.B. deputies
respond to these calls constantly. As a result of input from Sgt. Sachs
and other deputies, it came to his attention that the crime and acts of
violence have escalated to the point that the deputies are
apprehensive. A large volume of individuals congregating in and
around the club and in the K -mart parking lot have posed such a
threat that the deputies remain apprehensive even though they are
able to utilize all of the resources available at the D.B./Walnut station.
A calculated response to 500, 600 and even a thousand people
between the hours of 11:00 p.m. and 2:00 and 3:00 a.m. in an
isolated area such as the K -mart parking lot poses a horrendous
threat to the deputies. Since the Planning Commission rendered its
decision on April 11, deputies have responded to additional calls for
service at Scribbles, and there has been no discernable change in the
operation. He showed a video made by Sgt. Rivera and Sgt. White as
they drove by the area on April 20.
Sgt. Elizabeth Sachs said she works as a field supervisor for the
Walnut/D.B. Sheriffs Station between the hours of 10:00 p.m. and
6:00 a.m. When she worked the Thursday night shift there were
times that five to nine units were stationed in the K -mart lot that
provides overflow parking for Scribbles between the hours of 1:00
a.m. and 2:00 a.m., primarily 1:30 to 2:00 a.m. when there was an
influx of 400 to 450 individuals returning to their cars parked in the K-
mart parking lot. The problems encountered during thattime included
under -aged drinking, adults drinking in the parking lot area, a sea of
bottles on the parking surface, individuals driving under the influence
of alcohol, fights, reports of weapons, shots fired, etc. Many times
victims were unwilling to reportthe crime perpetrated against them for
fear of reprisal and as a result she had no police reports to support
what she witnessed. In addition to fights and injuries, there were
traffic collisions, exhibition of speed and many problems during those
hours. As a public safety officer she was concerned about five to nine
MAY 2, 2006 PAGE 15 CITY COUNCIL
units trying to control a congregation of approximately 500 unruly
people consuming alcohol and scantily clad women involved in
boy/girl issues. Overall, the presence of these factors is a mixture of
bad chemistry. She and the Department feel that without getting the
situation in check, there will be serious problems especially with
Summer approaching. She said she was not so concerned about
what was going on inside the club as she was with what was going on
outside the club. The security people at the club have acted
responsibly and cooperated with the Department. Scribbles' appears
to function as a nightclub and does not appear to be conducive to the
family businesses that surround the facility. The problems she has
witnessed, especially on Thursday night are very serious.
M/Herrera asked where the individuals in the K -mart parking lot
procured their bottles of liquor and whether they were holding bottles
as they left the nightclub.
Sgt. Sachs said she did not believe the individuals took liquorfrom the
nightclub. She believed they brought it to the destination in their
vehicles. She has observed hard liquor bottles, beer and wine bottles
and did not believe the club would sell a bottle of whiskey, for
example. Because these individuals are patrons of the business, the
business is drawing this problem into the City. She has served on the
Sheriff's Department for 17 years and has encountered this scenario
before and is therefore very concerned from a public safety standpoint
in its totality. She feels that if the problem is not curtailed something
bad will happen.
M/Herrera said the video showed people standing in line and
wondered if people were drinking while standing in line.
Sgt. Sachs said she was not there when the video was taken.
M/Herrera asked if the deputies who took the video observed people
standing in line drinking while they were waiting to enter Scribbles.
Lt. Maxey responded that the deputies did not mention patrons
drinking while waiting in line to enter the building. His experience is
that that never occurs. What happens in and around the entrance to
Scribbles is well controlled by their security. The problems occur on
the street, the surrounding areas and in the K -mart parking lot. Lt.
Maxey said there are two issues: 1) the safety of the deputies and
the community and 2) the expectation of the citizens of D.B. regarding
their safety and security. Between those hours he questions the
Department's ability to provide that safety and security because all of
the Department's resources are in one area of the City, the K -mart
parking lot. If there is another emergency in the City, the deputies
must respond from that location. The City has an expectation that the
MAY 2, 2006 PAGE 16 CITY COUNCIL
deputies will be out in the community and visible in order to be a
deterrent to crime. Deputies are unable to meet that expectation when
they are called to the K -mart parking lot to deal with 400 to 500
people exiting Scribbles.
Sgt. Sachs responded to M/Herrera that she has seen individuals age
18-20 who were drinking. She has seen some individuals' IDs and
other deputies call her over to witness under aged drinkers. A lot of
the problems are with the young adults, not just with individuals
between the ages of 18 and 21.
MlHerrera said she would allow the applicant equal time of 20
minutes for his presentation.
Frank Weiser, 3460 Wilshire Blvd., Suite 903, Los Angeles, attorney
forthe applicant stated that he believed due process was not followed
during the Planning Commission Public Hearing. Even though this
matter was continued from March 6 to April 11 he was hired at the last
minute because the applicant did not receive a copy of the Planning
Commission packet until two days before the Public Hearing. In
addition, the business owner was out of the country at the time of the
original continuance. No one received actual formal charges and
underlying evidence. Even to this date the applicant does not have
the Sheriff's reports that supposedly support the allegations of a
public nuisance. When he spoke to the Planning Commission, he
indicated that the matter should be considered in the spirit of
fundamental due process. Mr. Weiser said that Justice Roberts
recently wrote an opinion about what was fundamentally required for
due process procedure before one could be deprived of a property
interest, and that is what the City is doing when it modifies this CUP.
Notice provides that the applicant be given formal charges in advance
so that he knows how to prepare his defense. In addition, the
applicant is required to be provided the evidence to support the
charges. In this case, the applicant was not given the evidence.
According to the officers the problem is occurring outside of the facility
and across the street in the K -mart lot. The applicant does not have
the reports and cannot verify the truth of the matter. When the
Planning Commission was asked for a continuance one
Commissioner agreed that it would be a violation of the procedure of
due process if the applicant was not given the evidence and given
sufficient time to prepare. The applicant said that had he had
sufficient time and been given the reports he would have brought in
rebuttal evidence. On that ground alone the Council, in his opinion,
would have to reverse the Commission's decision and allowforfurther
hearings and grant the applicant his right to receive a copy of the
reports. Mr. Weiser said he filed an appeal on April 18 and asked that
it be made a part of the public record. He assumed that the Council
Members had reviewed the appeal and noted the underlying
MAY 2, 2006 PAGE 17 CITY COUNCIL
allegations as the basis for why the Planning Commission's decision
should be reversed.
Mr. Weiser stated that with respect to the issue about whether
Scribbles was in violation of its CUP, he pulled the certified copy of
the minutes on April 27, 2006 from the Business License Commission
for the County of Los Angeles indicating there was a hearing on May
25, 2005 wherein Scribbles applied for a business license and
received on June 1, 2005 three County business licenses, one for
entertainment with dance, one for public eating and another for an
annual dance. Ms. Fong was present representing the City at the
hearing on May 25, 2005. Nothing in the minutes indicates that
Scribbles cannot charge at the door; nothing indicates that there was
an indication that Scribbles was operating as a public nuisance; and
in fact, the Commission approved unanimously for Scribbles to have a
license, and gave them the license that runs until June 1, 2006, and
indicated that they assured all parties that any conditions or
regulations previously set forth by any licensing requirements should
be enforced. He asked that the document be entered into the record.
On legal grounds of collateral estoppel the Council cannot take two
different positions. If the evidence that went back to 2004 and 2005
was not presented to the licensing commission, and there has been a
finding by the County Licensing Commission that Scribbles is not
operating in violation of its CUP, the City never appealed that finding.
Under Administrative Collateral Estoppel Principles the City cannot
now come buck and re -litigate that issue. The City must go back to
the Licensing Commission in June, and get the Licensing Commission
to find that there was a violation of the licensing requirements, and
then go back to the Planning Commission for modification. He
believed that: the City Council was legally barred from being able to
just reverse the process.
Mr. Weiser said he asked Scribbles for evidence of the video. Firstly,
he did not know what that proved. Scribbles' has an entertainment
license and they are still operating. The reason they are still operating
is because they have a right under the Municipal Code to appeal this
matter, and under General Administrative Principles a matter is not
final even from an administrative standpoint until the appeal rights are
exhausted. The Council has not yet ruled. The resolution proposed
for adoption by staff says that Scribbles has a right to appeal under
State law under California Code of Civil Procedure 1094.5. He asked
Scribbles to take pictures of the parking lot across the street and of
the condominiums to see what it looks like at night. He asked that the
photographs be entered into evidence. As far as he could see from
the pictures, Scribbles was not in anyway contributing to any alleged
public nuisance, and Scribbles would like to know where the hard
evidence is that links Scribbles to any alleged nuisance across the
street. Someone's livelihood cannot be taken away on that kind of
MAY 2, 2006 PAGE 18 CITY COUNCIL
hearsay without evidence. Mr. Astavakra told him that there is a
bowling alley in town where homicides and multiple crimes have
occurred, and his reason for bringing up that matter was to indicate
that constitutional principles dictate that people must be treated the
same, and cities cannot pick and choose who is put out of business.
As far as he knows, the bowling alley owners have not been brought
before the Council. He said he related that story because Mr.
Astavakra told him that Lt. Maxey appeared at his place of business
and told him "Hey, I'm going to put you out of business", and it
appears that there is a clear agenda because Lt. Maxey believed
there was some continuation between the Platinum Club and
Scribbles, and there is absolutely not. Scribbles never got any kind
of citations from the Sheriffs Department, Scribbles has never
received any evidence, nobody has ever gone to Scribbles during all
of this time and told them they had better get their act together, or
we'll have to go before the Planning Commission. Scribbles never got
even a warning, and now they get three citations after the Planning
Commission hearing. They claimed evidence going back to 2004, so
if this property was contributing as badly as the City claims during the
past three years or two years, the normal course would be for the
Sheriff to sit down and first give them a warning, or sit down and try to
work with the property owners. In Los Angeles if someone is operating
a public nuisance, Mr. Delgadillo and his staff haul the owners in to an
informal hearing, have the Police Department representatives sit
down with the owner and tell the owner that the City does not want to
put them out of business, but this is the problem, give the owner a list
of suggested improvements, and then if the business owner does not
comply with the list of suggested improvements, and the conditions
are still bad, and the business is operating as a public nuisance, they
take the owner to court or before the zoning administrator. That never
happened here. All of a sudden his clients get the notice that they are
operating as a nuisance and their CUP is going to be modified.
Without the ability to operate as an entertainment center; the
business will not be able to survive. So what the City is doing in effect
is putting Scribbles out of business. The property owner entered into
evidence at the Planning Commission level that he has invested more
than $900,000 on the ability to operate as they have. The owner
invested a lot of money after he obtained the license from the County
Commission last year. State law indicates that the City has to give
the owner prior notice, not just fundamental federal due process
principles, and the State law says that even if a property is operating
with some problems as a nuisance, the City has to weigh the public
interest versus the private interest. The City can call it a
"modification" but in effect, it is a revocation. At the Commission
hearing one of the Commissioners proposed a continuance on the
condition that the parties get together and try to work this out to the
satisfaction of all parties. He proposed to the Council that there were
better ways to work out this situation. Mr. Weiser said he really did
MAY 2, 2006 PAGE 19 CITY COUNCIL
not mean this as a threat because he respects the City of D.B., but
obviously the two parties will be involved in litigation if it cannot be
resolved at this level, and from experience he knows that it will be
costly for all sides. This should have been resolved in a much more
amicable manner. The City did not have to haul Mr. Astavakra before
the Commission. The City could have found an alternative source,
and certainly the Commission did not have to take action right away.
Mr. Astavakra said he wanted to have a copy of the Sheriff's call log
for the past two weeks to see if there was a single incident that
happened in the K -mart parking lot and at Scribbles. He would like to
get a copy of the logs indicating that the Sheriff's Department had 10
vehicles at the scene because of disturbance calls. There has not
been a single incident that they can prove except for four incidents in
the last two and one-half years. He asked for the Council to accept
photographs. with times indicated of the K -mart parking lot, Gentle
Springs Ln. and Scribbles. One photograph showed the Fall Creek
gate with not one single car parked there. One photograph was taken
at 10:30 p.m. on Thursday evening. Another photograph was taken of
the area at 12:30 a.m. and there was not one single car parked at the
gate of the Fall Creek community. Another photograph was taken at
1:03 a.m. and another was taken at 2:01 a.m. One photograph of the
K -mart parking lot was taken at 10:05 p.m., another photograph
shows the entrance to the Best Western with not a single car parked
in the area and nothing is happening. Another photograph showed a
trailer parked in the K -mart parking lot. Other photographs showed
trucks parked in the K -mart lot. Mr. Astavakra said he had no idea
why allegations were made that the Fall Creek gate was broken.
Someone mentioned that his car was vandalized and that he spent
$8,000 to $11,000 to repair his vehicle, but there is no evidence that
the damage was done by a Scribbles patron. Scribbles has never
received a citation from the Fire Department, nor has Scribbles had a
single citation from the Sheriffs Department. There has been no
noise alleged by the residence of Fall Creek. The owner of Best
Western is here with Mr. Astavakra to testify that he and his
customers do not hear noise from Scribbles. How could Fall Creek
residents hear noise from Scribbles? He asked the Council to
investigate the matter further and give him a chance to continue
operating.
C/Tye directed Mr. Astavakra to the minutes of the May 27, 2005
Planning Commission meeting during which he served as Chairman
and C/Tanaka served as a Commissioner. He said he knewthat Mr.
Astavakra was aware of the Platinum Club legacy. Mr. Astavakra
indicated he was aware that the structure of the parking led to
loitering and that he indicated that Scribbles would be "upscale dining
with a jazz band playing," Mr. Astavakra indicated "there would be no
DJ music or any dancing except for private events if they want to
MAY 2, 2006 PAGE 20 CITY COUNCIL
dance, like graduation parties or things like that." C/Tye said the
reason he brought up those points was because as a Planning
Commissioner he would make a different decision in approving a
nightclub versus approving an "upscale restaurant with a jazz band
playing." C/Tye said he appreciated what Mr. Weiser shared, and he
may not mean it as a threat, but anytime somebody says they are
going to go to litigation over an issue, he takes it as a threat. The job
of the Council is to sort this all out as to how it will be handled. C/Tye
said he was not sure what difference it made that in this process that
"we don't have evidence of Sheriffs allegations. What are the formal
allegations?" This is not a court and there are no formal charges.
There has been an issue over whether or not Scribbles can charge at
the door. C/Tye said he believed the applicant could do anything he
wanted to do at the door, and if he (C/Tye) as a patron wanted to pay
$15 to get in, he could do so. C/Tye said he was not aware that
Scribbles was conditioned that it could or could not charge at the door
and that, to him, was not the issue. The issue is, is Scribbles a
nightclub? And he said he believed it was a nightclub, and that he
thought the evidence regarding what the City has witnessed is taking
place at the location is not an upscale dining establishment with a jazz
band playing, or with a piano playing or with soft music. The idea was
that the City did not want to duplicate Platinum in 2003 when the
Planning Commission approved the Scribbles CUP. And today in
May 2006 there is essentially the same type of activity taking place
that the City wanted to avoid. All of the other matters are to him
extraneous — the decibel levels, folks at Fall Creek and folks parking
in the K -mart parking lot is irrelevant to him with regard to the issue at
hand. The question is whether Scribbles is operating within its
Conditional Use Permit. The answer is No, and that is what the
applicant should discuss with his lawyer. He believed it was not
incumbent upon City staff to go to the applicant or the property owner
or to the attorney to advise Scribbles that it was operating outside of
its Conditional Use Permit. Mr. Astavakra knew what the conditions
were. Mr. Astavakra knew when he said there would be no DJ music
or any dancing except for private events. C/Tye said he did not
believe that Thursday nights were private events at Scribbles; he did
not believe that when an event was advertised on KIIS-FM, it was a
private event; he did not believe that when it was advertised on
Scribbles website that it was a private event. He again asked Mr.
Astavakra to answer whether he was operating within his CUP.
Mr. Astavakra said the website did not belong to Scribbles, that the
website was owned by the band that came once or twice to Scribbles
to perform. So the website is not Scribbles. It is with Luna
Entertainment that has nothing to do with Scribbles. The second thing
is that somebody rents the place for an event and they hire a DJ.
Scribbles complies with the food, they use the place and leave. So if
there is a DJ, the DJ performs, and it is for a private party. He cannot
MAY 2, 2006 PAGE 21 CITY COUNCIL
stop someone who says they want to rent his place. There are bands
playing, and the bar is open and dancers perform. He needs to rent
his place to survive. He said he has contributed almost $137,000 to
the City of D.B. in sales tax and property tax revenues over the past
two and one. -half to three years. That location is difficult. He spent a
lot of money on the place to make it survive. He got into it with his
eyes open, but if someone wants to rent the place he does not say
No. He promised to have his own security guards, and he has his
own security, guards that are doing a very good job. He has never
had a citation from ABC for under aged drinking.
C/Tanaka said he too sat on the Planning Commission when Mr.
Astavakra came to the Commission with his application for a
Conditional Use Permit, and at that time the Commission was very
careful to articulate the conditions under which Scribbles would
operate. The conditions that Mr. Astavakra proposed and guaranteed
that the residents at Fall Creek would not suffer through the problems
they endured when the Platinum Club was open. When the applicant
asks for evidence from the Sheriffs Department, one must ask if the
applicant has been at the premises. During the Planning Commission
meeting Mr. Astavakra stated he was at Scribbles. Apparently Mr.
Astavakra was inside the premises and was oblivious to what was
happening outside of the premises. There really is no need to
produce evidence if the owner was present. For the record, C/Tanaka
said he passed by on Thursday evening after the Planning
Commission made its decision. At that point there was no appeal in
process and yet the owner continued to operate as if Scribbles still
had the Conditional Use Permit. This does not lend credence to the
assertion that Mr. Astavakra is willing to modify his operation or
change the conditions under which he has been operating, and
it does not appearthat Mr. Astavakra is trying to be the good neighbor
he is asserting he is. C/Tanaka said he does not believe the
residents of D.B. should have to suffer through this type of
"business/entertainment." When Mr. Astavakra first proposed his
upscale restaurant , one of the first questions C/Tanaka had as a
Planning Cornmissionerwas about the large crowds that the business
attracted; and Mr. Astavakra guaranteed him that there would be no
outside music. If one stands in the K -mart parking lot, one can easily
hear the music from across the street. Mr. Astavakra guaranteed
there would be no crowds in the patio area, and Mr. Astavakra counts
the attendance including the individuals in the patio area. He
specifically asked Mr. Astavakra the capacity of the upstairs banquet
room, and Mr. Astavakra responded "85-90 people." And then he
asked Mr. Astavakra the capacity of the restaurant, and Mr. Astavakra
responded 125. If he adds those figures it amounts to about 215
patrons, and how 600 people get into the facility he does not
understand without using the patio area, the downstairs cellar, the
kitchen, etc. Whether the Fire Marshall has recently reviewed the
MAY 2, 2006 PAGE 22 CITY COUNCIL
capacity he was not aware and perhaps that was why there had been
no citation issued. It appeared to him that with the size of the facility
600 people could not safely assemble. He invited the attorney to visit
the facility to view the activity if it continued.
Mr. Astavakra stated that the Fire Department and Fire Marshall have
authorized a total capacity of 582 people. He does not use the cellar
and the exterior patio is used strictly for smoking. No one hangs
around outside — they go out to smoke and then go back inside. He
said the Fire Department had visited his premises numerous times,
and he had always been under -capacity, never over -capacity.
C/Tanaka said he believed that Mr. Astavakra misled the Planning
Commission when he applied for the CUP when he stated the
capacity would be about 215, no music outside, and when he knew
about the problems that existed with Platinum and guaranteed that
would not happen with his club, and that he would be a good
neighbor, and help D.B. with its economic development. He told Mr.
Astavakra that he did not believe Mr. Astavakra had lived up to his
agreement.
Mr. Weiser said he was unaware that C/Tye and C/Tanaka had sat on
the Planning Commission at the time the CUP was approved and he
believed there was an inherent conflict of interest for them to now vote
on this appeal. He asked that C/Tye and C/Tanaka recuse
themselves from this matter. In addition, caselaw supports that
contention and even the appearance of bias. C/Tanaka passing by
the premises after the Planning Commission rendered its decision
does not negate the 10 -day appeal process allowed by code. If the
two Council Members recuse themselves there would not be a
quorum, and he would request an independent hearing officer hear
the matter. He asked for a vote on the matter so that there was a
clear record when he takes this matter to court if the applicant has to
go to court.
CA/Jenkins responded to M/Herrera that there was no basis
whatsoever for a recusal of C/Tye and/or C/Tanaka. The fact that they
served on the Planning Commission at the time the original CUP was
granted subject to conditions ,in no way causes them to have any
prejudice whatsoever in this matter. The only basis for a conflict of
interest of the kind mentioned by counsel would be if Mr. Tye and Mr.
Tanaka had been on the Planning Commission that revoked or
modified the CUP, and then were elected to Council and sat in on the
appeal thereby denying the appellant a fair hearing panel on an
appeal because two members had already adjudicated the issue
sitting on the subordinate Council body. Whereas C/Tanaka and
C/Tye were on the Planning Commission several years ago, and
whereas they voted to grant the Conditional Use Permit, a completely
MAY 2, 2006 PAGE 23 CITY COUNCIL
different matter than is before the Council tonight, only serves to give
them some enhanced information about what occurred at that time
and what representations were made by the applicant to the Planning
Commission as reflected in the meeting minutes. Mr. Weiser's
request for recusal has no basis whatsoever in the law, and he
counseled C/Tanaka and CITye that they were perfectly qualified to
participate in this appeal. With respect to Mr. Tanaka's visit to the
site, C/Tanaka indicated that he drove by the establishment.
CA/Jenkins suggested that if any other Council Members had visited
the site or had witnessed any of the matters being addressed here
tonight that they should so indicate on the record. After the public
speakers have been heard the Council should give the owners an
opportunity for rebuttal during which time they could comment on
anything that Council Members may have observed that they felt was
incorrect or inaccurate. CA/Jenkins respectfully requested that
Council Members refrain from further comment until all of the public
testimony was heard.
M/Herrera opened the Public Hearing at 9:34 p.m.
Samuel Kazarian, 318 S. Prospectors Rd. #40, said he heard a
statement that the capacity allowed by the Code was 215 and he
heard the owner say it was 582. Which figure is correct? He said that
it was his opinion that having a nightclub like Scribbles draws a lot
people. The type of crowd the facility draws is unfortunate for the
owner. He said he does not like what he sees and things do get out of
hand. He said he had not taken time to check at night, but he knows
that there has been vandalism at his complex. Whenever there are
large groups of young people drinking they manage to get into trouble.
He said he would like to say "No" to the whole issue.
Vince Galloway, 300 Prospectors Rd., said that he could give the
Council specific incidents, but the bottom line was that Mr. Astavakra
continues to refer to this matter as "modifying the CUP." There is no
modification proposed. The City is asking why Mr. Astavakra is not
adhering to the original conditions. In no way has he adhered to the
conditions, and he is therefore in violation of the CUP. Fall Creek is a
community of 144 units in 12 buildings and about 73% of the
community consists of homeowners. Fall Creek is not an apartment
unit. He has lived in the community for 25 years and there is a diverse
group of individuals who reside compatibly in the complex. He
provided Council Members with a notice posted for the Planning
Commission meeting and fortonight's meeting. Every day for six days
notices of tonight's meeting were torn down and again as recently as
this afternoon. Scribbles' continues with business as usual, and every
day they are open there are beer bottles thrown up along the ivy along
the side of the street and inside of the complex. Mr. Astavakra pooh-
poohed the idea of repairing the gate. The Association spent a few
MAY 2, 2006 PAGE 24 CITY COUNCIL
thousand dollars trying to avoid confrontation and having people from
the club follow homeowners inside the gate to park. Late at night
when people are unable to get into the complex to retrieve their
vehicles they break open the gate. The Association paid to have a
timer installed to prevent the gate from being opened from 10:00 p.m.
to 4:00 a.m. on Thursday, Friday and Saturday nights. During the 25
years he has lived in the complex there have been more vehicle
break-ins in a one-month period since the last Planning Commission
meeting than during that entire previous 25 -year period. Since the last
Planning Commission meeting, a unit was burglarized. There has
never been a burglary in the entire history of Fall Creek until recently.
People come in and park in the complex and have sex. The
Association met with Mark St. Amant and Sandy Clark on February 12
because there were concerns about drug dealing inside of the gated
community. The officers recommended a Neighborhood Watch
program, said they would follow through with the Narcotics
Department and the POP Team. Fall Creek continues to have these
types of problems. One of the club promoters told the residents that
they want to get inside of the complex so that they can exit out onto
Prospectors Rd.and avoid a DUI contact with the police. While the
Platinum Club problems were mostly noise related, the clientele that
Scribbles attracts is a very different group. Fall Creek residents are
afraid to walk around their community.
Yumi Branstad, 394 S. Prospectors Rd., #107, said she appreciated
that the City looked out for the interest of its residents, and whenever
this type of application comes before the City the officials do their best
to evaluate the situation and make a fair decision. She believed that
C/Tanaka and C/Tye did just that in 2003. The problems have
escalated since that time, and she believed the applicant coerced the
Planning Commission to grant the CUP, and later the situation
changed. Of course, the community supports businesses that are
interested in conforming to the existing businesses and residents. The
fact that residents have waited until 9:30 tonight to speak about this
matter is evidence that there is a problem. CUP's and Variances are
based on privileges that are granted and not based on the law. If it is
time for the City and residents to re-evaluate the permit - it is a new
chapter. Threatening the City with a lawsuit clearly demonstrates that
this business is not willing to be a good neighbor. She said she was
very happy that the City had granted due process. She located the
website. Due process means that one has respect for the law, so why
would Mr. Astavakra allow an "unrelated" website to continue to
advertise services contrary to the CUP. This is a demonstration of
disrespect for the community. She said that she counted on the City
to protect innocent bystanders.
Tricia Guinto, 364 S. Prospectors Rd. said that for the applicant to
claim he does not operate a nightclub is completely false. There are
MAY 2, 2006 PAGE 25 CITY COUNCIL
Wen- Hui Su, 364 S. Prospectors Rd., #134, believed the Council
had the list of complaints from residents who spoke before the
Planning Commission. She said that when she moved into Fall Creek
a couple of years ago, she felt it would be a wonderful environment
for her parents. However, when her parents first moved in, they could
not sleep because of the loud booming noise. In the mornings her
parents refused to go outside because they could see all of the beer
bottles strewn about the community, and at night her parents are
afraid to even take out the garbage. Basically, she and her parents
are prisoners in their own home. In addition, one of the gates has to
be shut down and if there was an emergency the community would
have only one gate to use as an exit. One neighbor told her that one
Monday morning she took her eight year-old child to wait for the
school bus and saw a lot of used sex objects on the ground. The
woman told her son to look up, and her son questioned why he had to
look up and his mother told him there were bad things on the ground
and he should not look at them. Ms. Hui Su felt it was very sad that
children and elderly people could not enjoy their beautiful community.
She is a college professor and has had to cancel her evening classes
to come before the Planning Commission and City Council. Where do
about 30 Fall Creek homeowners present this evening who will attest
to the fact that Scribbles is a nightclub. The nightclub is promoted on
KISS -FM 102.7, 99.1 KGGI, Super Estrella 107.1, and it advertises
college nights on Thursday nights. There is a junior high school two
blocks from the club, there are flyers disbursed throughout this
beautiful City and on poles as well as freeway postings advertising a
club with $3 drinks. What does that say to the community? This club
attracts undesirable elements into her neighborhood. Mr. Galloway
pointed out that Gentle Springs Ln. is a private street and because it
is a private street the excessive number of vehicles erodes the
asphalt even more. As much revenue as this club brings in, they are
not upgrading the street. This club tarnishes the City and increases
the crime rate. For Best Western to claim they cannot hear the music
emanating from Scribbles is absolutely ridiculous. Her house is one of
the closest Ito the club, and in the Summer she has to close her
windows and use the air conditioner in the evening to drown out the
music, and she felt it was unfair to the community to have to take
those kinds of measures to ensure their quality of life. In the future,
the Planning Commission should not allowthese kinds of permits and
should be very stringent about what uses are permitted. She hoped
that this situation would not be a problem for the City in the future.
Henry Lee showed a Scribbles' flyer. He said he did
not see any sign
of a fine dining restaurant or grill. The advertisement quotes prices for
alcoholic beverages and refers to "Drinko de Mayo" and this attitude
spills into the community and proves what kind of activities are
conducted on-site.
Wen- Hui Su, 364 S. Prospectors Rd., #134, believed the Council
had the list of complaints from residents who spoke before the
Planning Commission. She said that when she moved into Fall Creek
a couple of years ago, she felt it would be a wonderful environment
for her parents. However, when her parents first moved in, they could
not sleep because of the loud booming noise. In the mornings her
parents refused to go outside because they could see all of the beer
bottles strewn about the community, and at night her parents are
afraid to even take out the garbage. Basically, she and her parents
are prisoners in their own home. In addition, one of the gates has to
be shut down and if there was an emergency the community would
have only one gate to use as an exit. One neighbor told her that one
Monday morning she took her eight year-old child to wait for the
school bus and saw a lot of used sex objects on the ground. The
woman told her son to look up, and her son questioned why he had to
look up and his mother told him there were bad things on the ground
and he should not look at them. Ms. Hui Su felt it was very sad that
children and elderly people could not enjoy their beautiful community.
She is a college professor and has had to cancel her evening classes
to come before the Planning Commission and City Council. Where do
MAY 2, 2006 PAGE 26 CITY COUNCIL
the 600 patrons park? One of her neighbors who had to watch his
child this evening and could not attend the meeting asked her if she
found it strange that a couple of nights ago there were no cars parked
in the complex and no beer bottles on the ground. Perhaps that was
the night the owner took his pictures. People believe that after working
hard all day they can go to their homes to relax. When they hear the
noise all evening and into the early hours, people get depressed
because there is no relief. She thanked the Council for their wise
consideration.
Abraham Tuyeb, 348 S. Prospectors Rd., #2 said that last Saturday
he was coming home about 2:00 a.m. and could not get through the
gate. He became concerned when he tried to turn around to go
through the front gate because people were drinking and staring at
him. The area has become a hangout for gangs. The previous
speaker brought up a good point about safety concerns and
emergencies because the complex was forced to close its gate.
Residents are prisoners in their homes.
Michael Case, 328 S. Prospectors Rd., #52, said the core issue was
that Scribbles was operating outside of the bounds of its Conditional
Use Permit. If one views the website and looks at the flyers that litter
the ground in the mornings or if one drives by the club and witnesses
the crowds standing outside, it is obvious that this place's primary
interest is not as a restaurant, but as a nightclub. As forthe pictures, a
time and date stamp on a picture is trivial to mock up. All one needs
to do is to change the date on the camera or on the computer. He is
not accusing Mr. Astavakra of lying, but the evidence needs to be
taken with a grain of salt. He said he had driven by Scribbles
countless times at different times of the evening and night and there
was always a line of cars packed into the corner of K -mart that is not
shown in the applicant's pictures.
Eddie and Andrea Martinez, 328 S. Prospectors Rd., have lived in the
complex for five years. Andrea Martinez said she was personally
assaulted by one of the Scribbles patrons at 11:00 p.m. on Thursday
night when she was coming home from school. The individual was
cursing at her, banging on her door and telling her to let him in
through the gate because he and his girlfriend had to get their car.
She called the Sheriff and two squad cars arrived to speak to the
individuals. It was a very frightening experience. Groups have
patrolled the area in order to witness what occurs, and they have seen
girls dressing on the street and people urinating in the bushes. The
Fall Creek complex is a very nice community and to not be able to use
the security gate is a real invasion of privacy. Eddie Martinez said that
the past year and a half had been hell for them. Not only have they
had to take time to patrol their areas they have to be home before the
nightclub opens to avoid being involved in the traffic and the people
MAY 2, 2006 PAGE 27 CITY COUNCIL
who patronize the establishment. For the owner to say Scribbles is not
a club is ridiculous because it is a club. Driving to work in the morning
she hears announcements on KISS -FM inviting people to come to
Scribbles. The Planning Commission denied the CUP, and the
following Thursday Scribbles was open for business. These are not
the type of people she wants in her City, and she strongly urged the
Council to deny the appeal.
Danoush Tehrani, 364 S. Prospectors Rd., said that when he moved
to D.B. two years ago he knew it to be a safe and quiet place.
However, Scribbles is neither safe nor quiet. He was once inside the
club and paid the owner $10 to enter. There are three different stages
with three different types of music with young people dancing. He did
not see a restaurant and did not know how they could call it a
restaurant. Fie asked the Council to please take action. His car was
vandalized and he paid $8,000 to have it repaired. He has proof of the
repair payment and stated that the vandalism occurred the same day
that 15 other cars were vandalized.
Fred DeNellis, Internal Security Consultant for Scribbles stated that
he has heard many false accusations about Scribbles. He is also a
security professional with a law enforcement background. His job is to
survey establishments before he puts his team into operation to make
sure it is safe for him and his staff. Scribbles is a dining facility. A lot
of things that people have not seen is that there are numerous
amounts of people inside the establishment for sit down dinners on
both sides of the dancing areas. Dining services are provided up until
at least 10:00 p.m. The type of people that visit the establishment —
again, it is not a nightclub. He said they have people that like to go
there for music, for entertainment and for socializing and that is what
this establishment is, it is not a nightclub. A nightclub is what you
consider nightclubs in downtown Los Angeles. This establishment is
very concerned about who it allows in. He has heard from the tenants
of their neighbors nothing but gang affiliation claims. That is a zero
tolerance with this establishment. He said he was the liaison with the
Los Angeles County Sheriffs Department and with the owners of the
establishment, and they look to him to preserve the right of those
individuals that are allowed into the establishment, what they want,
and also provide escort services out of the establishment when those
individuals do not fit the criteria of what the establishment wants as far
as visitors. The establishment has many outside agency individuals
that come in to the establishments to entertain their wives, their
boyfriends, their girlfriends, etc. This is the type of atmosphere
Scribbles has portrayed, and he has been with Scribbles dinner
establishment for the past year and a half. If he did not feel
comfortable working there he would not have started this whole thing.
All he could say was that he would like for the Council to reconsider
what it had been hearing as far as hearsay and what is fact.
MAY 2, 2006 PAGE 28 CITY COUNCIL
Ken Manusia has lived in D.B. for many years. He and his wife visit
the Scribbles Restaurant. Scribbles' serves good Indian food and
American food. He and his wife have visited the establishment more
than 12 times since 2004, never had their cars damaged, never
experienced rude treatment and never were caused any kinds of
problems. He has remained at the establishment late and always felt
safe. There is a good mix of age group. He is 49 and he has seen
older people at Scribbles. He wanted to say something positive about
the facility.
Richard Acosta said he has been going to Scribbles for about two
years and taken a lot of his dates for dinner. He said he did not
understand a lot of the speakers because Scribbles does not let them
close to the gate area. The gentlemen direct patrons to parking at the
back of the club. There are no gangs at Scribbles, and he has never
had any bad experience in all, of the times that he has gone to the
establishment. He has seen the Sheriffs there and he has seen them
inside. He does not know how the gentleman can say the Sheriffs are
afraid. They are there every so often, and nothing happens to them.
Every time he has gone to Scribbles he has had a good time, and he
has never seen anything negative at Scribbles. He has only positive
things to say about Scribbles. He has taken his family there, and he
has taken his son there. They have a great security that takes care of
everyone, and he feels very safe there when he goes in and when he
comes out.
Jing Se Choi (James) said he saw two guards on the video and that
although they may block the people, they do not block the music to
the community. The applicant said that the website was not their
website, but isn't the website a reflection of what the establishment
does and what service it provides? He said he believed that when the
City first issued the Conditional Use Permit, it was like an agreement;
and the applicant knows what should and should not be done. It is not
to say that the City wants to put them out of business, the City is
saying that the applicant does not comply with the CUP. If the
business is projected to be successful, it should be projected based
on the conditions of the permit. If the business cannot find a legitimate
way to earn money, he is sorry about that, but perhaps the applicant
made a wrong investment. The applicant cannot modify the permit to
suit his own needs. He should first analyze what can be done with the
CUP and earn the money from the business. The Planning
Commission hearing was two months ago and Scribbles is stili
conducting business as usual. If the applicant wanted the people to
give his establishment a chance, he should be willing to change his
attitude to warrant being given a chance. With all of the recent
activities it does not appear that the applicant wants a chance to
remedy the situation because he is still continuing the nightclub
business knowing that it disturbs the community. The applicant can
MAY 2, 2006 PAGE 29 CITY COUNCIL
argue that outside of the premises is not his responsibility, but he has
advertised to draw the type of people to his establishment that cause
safety concerns in the community.
Tony Benowitz said he went to Scribbles when it first opened and
enjoyed an amazing rack of Iamb dinner. He is a bartender, server,
band member and student. His Dad is a caterer, and he understands
it is tough to make a living in the food business. He wanted the
restaurant to make it. He told people about Scribbles, and when he
went back for another visit it had turned into a club. He said he was
present with friends in the community, and he felt he had to stand up
for women, children and the elderly and the potential for having a
problem. The applicant's attorney mentioned a homicide in front of the
bowling alley, and Mr. Benedito said he was sure there could be a
potential hornicide in front of Mary's Hallmark, for example, but the
potential with 500 people who do not know each other and are
drinking is a potential for problems. The City cannot sit around and
wait for something bad to happen. He does not personally have a
problem with the establishment, but he cannot stand on the sidelines
and watch his community suffer. He feels for Mr. Astavakra, but he is
not living up to the CUP, and he must. Fall Creek is a very diverse
community that has no problem with its diversity and with people.
However, the residents have a problem with activities, and that is
what is being addressed tonight. He hoped the Council would make
the right decision.
Mr. P.N. Patel, had invested money in the establishment but had not
done so until he went through the entire process with Los Angeles
County. He sat through the meeting and has a copy of the minutes,
and they are allowed to have private parties. He does not know that
private parties mean only weddings, anniversaries and birthday
parties. After he obtained the license he invested more money into
lining up other private parties -- fraternities. He has had 31 fraternity
parties, and to get them it took him a long time. From CalPoly
Pomona and Cal State Fullerton, he has had 31 parties within the last
year. As soon as he hears the promotion is not valid, he tries to track
it down to tell them not to advertise that way because the City does
not like it. He! was allowed posters before, but LA County said not to
do the posters, and they are not doing posters. Although a memberof
the City said he could not charge admission, he was told by LA
County that he could. He said D.B. was calling it a nightclub and the
remarks he got from Los Angeles County officials was, "well, just don't
call it a nightclub if you know what I mean. If you want to call it a day
club, or call it a dance club if you want." It's in the minutes, and he
was joking about it, so I said okay, I won't call it a nightclub. He said
"Call it anything you want because you do have an entertainment
license." Based on that CUP — based on that license, I invested all the
money; and I made sure that the establishment never crossed the
MAY 2, 2006 PAGE 30 CITY COUNCIL
boundary ever. And there are things that otherwebsites reflect about
the restaurant. He does not tell them what to do, and as soon as he
catches them he tells them. Unfortunately, he did not have everything
figured out when Lt. Maxey was there on March 2, and he said there
would be 2000 or 3000 people. That was a private event sponsored
by Camel cigarettes — RJ Reynolds event. He has all of the records. It
was a three-week event and it was a private party. The fraternity
parties are also private, and they bring their own DJ's. On any given
Thursday night Scribbles has multiple fraternity parties. It is very hard
to have them come again and again. There are 45,000 students at
CalPoly, and there are 38 fraternity and sorority clubs. He has access
to 16. That does not even include Cal State Fullerton. Those are the
private parties, and that is why he decided to come here and speak.
He was present during the last hearing, but he did not take the stand
even though he had invested a lot of money because whenever other
people said something it was fact, and whenever he would try to say
something, it was allegations. He was trying to make sure that he was
abiding by the CUP as he understands it. He went to the meeting, and
afterthat meeting he invested $900,000. More than anything he wants
to protect his investment and that is the reason he is present this
evening. He took the photographs, and a Sergeant who works for D.B.
saw him taking the pictures. Every picture was taken of every corner
that was in question. He has a letter coming from Carl's Jr. that will
state there has been no harm to his employees, that they have not
been threatened and do not feel threatened and that Scribbles is
actually good for their business.
ICDDIFong said that one of the comments by the applicant was that
he was not afforded due process. Staffs report refers to this
allegation. The applicant was properly noticed about the March 14
Public Hearing by Certified Mail, Staff contacted the applicant, and the
applicant told staff that he would be out of the country and requested
a continuance. Staff complied with the request and continued the
matter to April 11. Since the applicant was first notified, he was aware
of the Public Hearing to consiiderwhether he was operating within the
Conditional Use Permit. Regarding the comment about the Los
Angeles County Business License, she attended the Commission
hearing. It took Scribbles two years to obtain a business license as a
condition of the CUP. As stated in staffs report and as the Council
knows, D.B. contracts with LA County for the issuance of business
licenses. Staff attended the hearing to make certain that the Business
License Commission Members were aware that the Conditional Use
Permit approval was for a dinner house with very light entertainment
and that there is no nightclub use permitted. The hearing was
frustrating, but staff made it clear that the business license should not
be approved for a nightclub, only as a dinner house. As far as
selective enforcement and the bowling alley, she was unable to
address that concern and directed the Council to the Sheriffs
MAY 2, 2006 PAGE 31 CITY COUNCIL
Department. The Los Angeles County Fire Department approved the
maximum occupancy at 582 according to the applicant, and that is
different from the application provided to the City by the applicant.
Lt. Maxey said that he and his colleague spoke about taxing the
Department's resources and about the clientele that patronizes
Scribbles. It would seem to him that in the City Council chambers his
Department would be free from those issues. However, he and Sgt.
Sachs were subjected to an intoxicated individual who sat behind
them waiting to testify in defense of Scribbles tonight. When the flyer
showing the naked woman was produced, this individual began
making sexual innuendoes to Sgt. Sachs, and because he created a
disturbance, Lt. Maxey was forced to request a unit to pick up the
individual and escort him out of the building. The unit escorted the
individual out of the City. Lt. Maxey said that if this isn't a prime
example of what this facility brings to the City, he does not know what
is.
C/Tye said he had breakfast at Continental Burger last Saturday, and
Continental Burger is next door to Scribbles.
M/Herrera said that over a year ago she was driving on the SR 60 into
East Los Angeles and took the off ramp at Garfield and Wilcox where
she saw a bright fluorescent poster advertising Scribbles. She
wondered at the time why there would be a scribbles poster in East
Los Angeles. She thought it could not possibly be advertising the D.B.
Scribbles, but as she got closer to the poster she saw clearly that it
was Scribbles on Gentle Springs Ln, in D.B. She fails to understand
why if, as the owner maintains, the events are only private parties,
that posters would be displayed in East Los Angeles inviting people to
attend the facility on Thursdays, Fridays and Saturdays for drinking
and dancing.
C/Chang said it is the obligation of Council Members as
representatives of the people to drive around the City to make sure
that the City is safe and well maintained. He has heard enough to
know that he does not need to visit the area. He has had people call
him, and he has seen the advertisement at the freeway exit. He has
heard enough and does not believe he needs to check inside the
facility.
Mr. Weiser expanded his recusal motion to include M/Herrera and
C/Chang. He thought it was absolutely clear that they represented the
public, but had constitutional standing in these hearings, and that's
what courts of law are for, to enforce those constitutional standards.
He cited the ease Stivers v. Pierce that says that you can't even have
an appearance of bias. Certainly the remarks he has heard here go
beyond the appearance of bias, they go to the issue of actual bias. He
MAY 2, 2006 PAGE 32 CITY COUNCIL
said that he thought when people make remarks about saying I saw
this poster a year ago, and they are wondering why this poster is out
there in East Los Angeles, that goes to the issue of whether one can
be a fair adjudicator at this hearing. With Council Member Chang's
remarks he felt it went to the question of even being a fair adjudicator.
And that is what a Council Member's constitutional duty is.
Regardless of whether the Fall Creek members think this is a buddy -
buddy club and this is their home, a court is going to look at what the
United States Constitution says and what State law requires and not
what people come up here and say based on hearsay, or Lt. Maxey,
maybe we should put a CUP for any patron of Scribbles not to be able
to attend the City Council. Lt. Maxey has come up with a whole new
issue here. But that is what is required, and I'm going to ask that the
whole Council recuse itself. As far as C/Tye and C/Tanaka, he
seriously disagreed with the City Council's analysis. One of the
conditions being appealed here is a finding by the Planning
Commission that the original Planning Commission issued the CUP
based on misrepresentations and fraud. C/Tye stated earlier that if he
had known that Mr. Astavakra was going to operate in the way he is
currently operating, that he would have not voted for this original CUP.
So these Council Members are absolutely in a conflict of interest in
terms of being able to vote on this appeal, and he asked that for the
record it be stated that he wanted a motion on his recusal whether in
fact the individuals were going to recuse themselves or not before
voting on the actual substance. Now as far as ICDD/Fong goes,
notice does not mean just notice. Mr. Weiser cited case United States
v. James Good Realty, a 1965 U.S. Supreme Court case. It states
that you must have knowledge of the specific charges and meaningful
time to respond. Giving somebody the specific charges two days
before the hearing and expect them to respond in two days. And you
do have the duty to give them the underlying evidence and not just
rely on double hearsay, triple hearsay coming up here. Because that
is what a court of law is going to require. As far as the equal
protection challenge that we made as far as the bowling alley, there is
a police log and that police log will tell the story of whether in fact
Scribbles is being treated deferentially. He said he has heard nothing
here as far as the evidence that supports that there is a violation of
the CUP. There is a business license in place from the County of Los
Angeles. It is effective until May 31, 2006. It is still operative. You
have an opportunity to raise your challenges of public nuisance and
violation of your CUP at that business license hearing. You lost at that
hearing. ICDD/Fong indicated that she raised issues about the
nightclub. You never appealed it to a court of law. You are
administratively collaterally stopped from putting the cart before the
horse and saying that they are in violation of their CUP. You have to
go first to the County and get them not to renew that business license
and then go back and do your land use planning. They have a
business license. They have an absolute legal right to operate as they
MAY 2, 2008 PAGE 33 CITY COUNCIL
have. And one thing I'm seriously concerned (about) is what's the
definition of a nightclub? Nobody has defined what a nightclub is here.
C/Tye said he thought the owner could charge at the door. There is
no evidence they are operating as a nightclub. What is the definition?
What is your standard of a nightclub? They have an entertainment
license from! the County of Los Angeles. You were there at the
hearing so how could they be in violation of what the County has
given them and has told them is permissible. There is not substantial
or any kind of evidence to support the Planning Commission's
findings. There is no evidence here to support a modification of the
CUP, and as; he said, there is a jurisdictional problem of the Council
voting on something aside from the recusal on something where the
County of Los Angeles permits them to do what they do. And in final
remarks he heard a lot of hearsay and a lot of emotionalism from
testimony from t=all Creek members about doing the right thing. We'll,
do the right thing under the Constitution. We live in a country of laws.
We live in a country where people cannot just come up and deprive
another person of a livelihood without due process of law. Thank God
we have courts of law that are final adjudicators of these issues. And I
would hope that we don't have to end up there. As I said, there's a
practical issue here that you have to consider. This is going to be
very, very costly to the City and to my clients if we have to fight this
out in a court of law,and my experience is that we'll be back here in
two or three years, and we'll get nowhere. Now maybe this is a
political hot potato, and maybe politically you vote based on what you
have to do for your constituents, but that's not the right thing for the
City and the ultimate goal here. So I would urge you, find a middle
ground. The wisdom here is to find a middle path. Send this back to
the Commission. See if there's a way of working this out before you
make a final decision on this.
M/Herrera closed the Public Hearing at 10:42 p.m.
CA/Jenkins commented on the record regarding assertions made by
counsel for the business owner. First, with respect to the procedural
due process issue, he would note that as ICDD/Fong indicated the
business owner was given ample opportunity and notice to prepare for
the Planning Commission hearing. In any event, this hearing before
the Council this evening is a de novo hearing, meaning that the
Council is hearing the evidence all over again and weighing the
evidence, not examining whether the Planning Commission was right
or wrong. The property owner has appealed the matter to the City
Council, and the City Council is hearing the evidence anew and
weighing that evidence as Council Members. The property owner has
had more than sufficient notice of this hearing, and in fact, several
weeks ago asked for copies of the police reports and was advised in
writing how he could obtain copies of those police reports should he
MAY 2, 2006 PAGE 34 CITY COUNCIL
wish to review them. With respect to the County Business License
Commission, the City's Business License Ordinance is a completely
separate set of regulations than its land use ordinances. When
consideration is given to the issuance of a Business License,
consideration is based on completely different criteria. The Business
License Commission looks to a very narrow range of issues pertaining
to the character of the operator of the business, whether that person
is a legitimate person, whether that person has a criminal record,
making sure that there is ample security for the operation. It is not a
land use hearing. The City's Zoning Ordinance provides a completely
separate opportunity for the City to evaluate operations through the
Conditional Use Permit process. The City is in no way estopped from
modifying or revoking a land use permit based on the criteria
contained in the code merely because a business license has been
issued or, for that matter, a business tax has been paid. A property
owner gains no rights simply by complying with completely different
aspects of the Municipal Code. Much has been made of the fact that
the business was cited in the intervening period between the Planning
Commission hearing and this hearing and that once the Planning
Commission action was appealed it was stayed, hence it is not in
effect. That is true. The citations are based on the existing CUP, not
any modified CUP. The existing CUP limits entertainment to private
parties in the banquet room only of the restaurant and only allows
light entertainment in the form of jazz or piano in the bar area only of
the restaurant. That is what the current existing CUP actually says.
With respect to the issue of "bias", decision -makers are disqualified by
bias only if they are influenced by factors outside of the merits of the
matter. If the Council's decision is tonight based on the evidence that
has been brought, based on the staff report, based on the testimony
that has been received, and the Council is making its decision based
on that evidence and only that evidence that the Council has taken in
during the Public Hearing, then the Council is not biased. Council is
biased only if Members have prejudged the matter by virtue of some
issue that is unrelated to the merits that are before the Council
tonight. Mr. Weiser has raised a lot of legal terms that are applicable
to trials in courts of law but that are inapplicable to an administrative
proceeding such as this. The Council is permitted to hear testimony
from residents — people who are neighbors of the business; Council is
permitted to consider the testimony that Members have received; and
the Council's duty is to determine whether or not there has been
substantial evidence presented to support whatever decision the
Council makes. The Council's decision must be based on substantial
evidence so that Members can make findings based on that evidence.
The standards applicable to a court of law, the prohibition against
hearsay, and some of the other rules are not applicable to this
hearing. If the Council's decision is ultimately judged by a court of law,
it will be judged on whether or not the Council's decision was based
on substantial evidence in the record now before the Council.
MAY 2, 2006 PAGE 35 CITY COUNCIL
C/Chang thanked CA/Jenkins for his input. Council Members are
afforded the right under the Constitution to allow the people to provide
input so that the Council Members are able to make an informed
decision. The bottom line is whether this operation is in compliance
with the conditions under which the owner was granted a permit
regardless of extraneous issues. The CUP was issued based on a bar
and entertainment use and more precisely "a jazz band, a guitarist or
a pianist on a small stage within the bar and a DJ with dancing for
banquets and private parties held within the banquet room." The CUP
is quite clear and the conditions stated at the time were quite clear,
and the applicant was quite clear. The record indicates that the
property owner was committed to abiding by the conditions of the
CUP. The owner of the establishment, which was supposed to be
used as a "restaurant" turned the establishment into a business that
was no longer in compliance with the approved CUP. As a result, the
City gave the applicant proper notice and ample time in accordance
with due process. When the applicant violated the CUP he caused the
City to respond accordingly. The Council heard from the public and
law enforcement officials that the safety of the public has been
compromised as a result of the operation, and Council bears the
responsibility to provide a safe environment for its residents.
C/Tye clarified for Mr. Weiser that "had I known in May of 2003" — he
did not say he would vote against the CUP, he would have considered
it differently. A fine dining restaurant is different than a nightclub; a
fine dining restaurant is different than a dayclub; it is different than
what exists at Scribbles on Gentle Springs Ln. in D.B. Mr. Weiser
made reference to a County hearing that he thinks C/Tye attended.
C/Tye was not in attendance at any County hearing. He wanted to
make certain everyone was clear that he would not put the recusal
issue to a vote and that he would not recuse himself from voting on
this matter. In November 2005 more than 7,000 people in the City of
D.B. voted for him to serve on their City Council, and more than 5,000
people voted' for C/Chang, and he could not imagine that a single
person who voted for either of them thought it would be a problem for
them to make a decision on behalf of the citizens. He reiterated that
he had no intention of recusing himself. The applicant has referenced
hearsay time and time again and in his opinion, it is moot and so
much background noise. The issue is whether Scribbles is operating
within its Conditional Use Permit and de novo or otherwise, he
believed he could make that decision tonight. Having come to the
table with no opinion, he believed that based on the evidence he did
not believe that Scribbles' was operating within the Conditional Use
'
Permit. Mr. Weiser said he was an advocate, and C/Tye said that he
too is an advocate — he is an advocate for the Fall Creek residents
whose peace is being disturbed and whose solitude is being ruined.
He is an advocate for the citizens of D.B. who on Thursday nights
have their safety compromised when all of the City's public resources
MAY 2, 2006 PAGE 36 CITY COUNCIL
have to be marshaled to the Scribbles area to be prepared to deal
with large crowds. His daughterworks at a local business in D.B., and
when she calls the Sheriff, as she did the other day, she needs to be
able to depend on their quick response. Any resident and any
business owner must be able to depend on adequate response from
the Sheriffs Department, and that assurance is not available with the
kind of resources that are being spent on Thursday night outside of
Scribbles. And, he did not believe those resources would be required
for an upscale dining established. He believed Scribbles was a
nightclub, and he was not sure about the definition of a nightclub, but
felt Scribbles came pretty close.
C/Chang said that an operation with two massage tables and two
masseuses providing VIP treatment is not allowed underthe CUP and
is absolutely a violation of the City's Code.
C/Tanaka said that he was present on the Planning Commission
when the applicant initially applied forthe Conditional Use Permit and
believed he understood the application process and what the property
owner proposed. Tonight he will not recuse himself ,and he will make
his decision based on the evidence provided to the Council this
evening. Further, he will base his decision on whether the business is
operating in conformity to the approved CUP, whether it is a public
nuisance, whether it is threatening the health and safety of the
community and whether to revoke the entire Conditional Use Permit.
M/Herrera stated that this City spends $5 million a year for its public
safety budget and to have, as has been mentioned, all of the public
safety resources in one location because it is difficult to maintain law
and order is a travesty. The adjacent businesses are having difficulty
with business being chased away because there is a lack of parking in
their lots, and there are so many individuals loitering and using the
parking lots of fast food establishments as outdoor restrooms, it was,
she believed, a public nuisance. There was a comment that the
information from the residents was "hearsay." The individuals that
spoke observed things happening, and that is not hearsay, it is
eyewitness testimony.
C/Chang moved, C/Tanaka seconded to adopt Resolution No. 2006-
40 denying the appeal and upholding the Planning Commission
decision. Motion approved by the following Roll Call vote:
AYES: COUNCIL MEMBERS: Chang, Tanaka, Tye,
M/Herrera
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: MPT/Zirbes
MAY 2, 2006 PAGE 37 CITY COUNCIL
8. COUNCIL CONSIDERATION None
9. COUNCIL SUBCOMMITTEE REPORTSICOUNCIL MEMBER COMMENTS:
C/Chang thanked everyone present for participating in tonight's meeting and
wished everyone a good evening.
C/Tanaka attended the Lorbeer Middle School Evening of the Stars Open
House and Student Recognition and attended the Soroptimist Awards
Banquet on behalf of the City.
C/Tye attended a Neighborhood Traffic Management meeting with AE/Molina
presenting an excellent program. Traffic is the City's number one concern
and he encouraged everyone to invite friends and join with the City in future
meetings and become engaged in the process. He encouraged everyone to
also become involved with the Lemon Ave. Scoping meetings, a long and
involved process. He hoped to see many people at the Brahma Foundation
Casino Night on Friday. He congratulated Congressman Gary Miller, a co -
recipient of the League of California Cities Congressional Leader of the Year
Award. Congressman Miller was recognized primarily for his support of
Community Development Block Grant funding. C/Tye congratulated
Assemblyman Huff who was reappointed as a Whip in the State Assembly.
MPTIZirbes is in Sacramento and will check into the hospital tomorrow for
surgery at 7:30 a.m. on Thursday morning. He asked that everyone keep
MPTIZirbes in theirthoughts and prayers and encouraged everyone to flood
his room with cards at Sutter General Hospital, 2801 L Street, Sacramento,
CA 95816. He said he could think of nothing better than to have the hospital
administration complain about the flood of mail to Bob Zirbes. He thanked
everyone for participating tonight and said he appreciated being allowed to
serve on the City Council.
ClChang said that MPTIZirbes requested no flowers.
M/Herrera thanked everyone for participating in this evening's meeting.
ADJOURNMENT: With no further business to conduct, M/Herrera adjourned the
Regular City Council meeting at 11:05 p.m.
MAY 2, 2006 PAGE 38 CITY COUNCIL
The foregoing minutes are hereby approved this 16thday of may , 2006.
14�4valll�
CAROL HERRERA, MAYOR