1988-089-After Court Decision To Modify Decision In Resolution No. 1984-221 Denying Decision Imposing Certain Stop-N-Go marketRESOLUTION NO: 1988 -89
RESOLUTION AFTER COURT DECISION TO MODIFY TOWN COUNCIL DECISION IN
RESOLUTION NO. 1984 -221 DENYING APPEAL OF PLANNING COMMISSION DECISION
IMPOSING CERTAIN CONDITIONS ON THE GRANTING OF CONDITIONAL USE PERMIT
FOR CERTAIN STOP -N -GO MARKET; MODIFYING CONDITIONS OF APPROVAL;
DETERMINING AMORTIZATION PERIOD; AND DETERMINING THE STORE CONSTITUTES
A PUBLIC NUISANCE; REPEALING RESOLUTION NO. 1984 -221
(445 LEIGH AVENUE - STOP -N -GO MARKET)
WHEREAS:
1. National Convenience Stores, Inc. (Stop -N -Go Market) [ "NCS "]
appealed a decision of the Planning Commission granting Conditional Use
Permit Application U -82 -18 subject to certain conditions for the property
located at 445 Leigh Avenue;
2. Public hearings were held by the Town Council on November 19,
1984 and on November 26, 1984;
3. The decision of the Town Council on said appeal was final and
adopted by Resolution No. 1984 -221; adopted on December 3, 1984;
4. NCS filed a lawsuit in Santa Clara Superior Court (Action No.
563488) in December, 1984 challenging the Town's action with respect to
the Conditional Use Permit;
5. The trial court decision vacated a portion of Resolution No.
1984 -221 relating to the amortization period. The decision was appealed
by the Town to the Sixth Appellate District Court (H001402). The court
issued an opinion on March 28, 1988 which held the permit conditions valid
and proper and held the amortization period commenced from December 3,
1984. The court noted there was substantial evidence in the record to
support the advisory opinion of the trial court that a 3 -year amortization
period was appropriate.
6. The appellate court upheld the trial court decision which
remanded the matter for a reconsideration of an appropriate period to have
commenced on December 3, 1984.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
1. The Town Council hereby finds that certain findings of the
Planning Commission were correct as follows:
a. A number of persons loiter on the store premises and
engage in antisocial behavior;
b. The store's customers drop liquor bottles and other trash
on store premises and on adjacent property in the
residential neighborhood;
c. Store customers or persons loitering in the store's
parking area vandalize the landscape;
d. Persons on the store's premises publicly use alcohol and
drugs;
e. Violations of the State Alcoholic Beverage Control laws
involving sale of alcoholic beverages to minors have
occurred on the premises;
f. Numerous police incidence reports indicate that incidents
involving police response have occurred for many years at
the store. Although the 7-11 on Main Street has had
almost as many police calls, it is fair to impose more
rigorous conditions on the Stop -N -Go because the 7-11 is
in a less residential area and therefore causes less
disturbance to neighbors, as indicated by the fact that no
neighbors have asked for more stringent conditions on the
% -11.
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g. Virtually all of the factors that disturb the neighborhood
emanate from the premises of the store and are subject to
its reasonable control by enforcement of its "no
loitering" sign; however, the store had little or no
enforcement of its "no loitering" sign. The disturbance
of the neighborhood is therefore attributable to the
store's operation;
h. Store personnel easily fill up 33- gallon trash bags when
picking up trash on store premises and the surrounding
neighborhood;
i. The store is a focal point attracting persons that cause
problems to the residential neighbors of the store;
j. The evidence supports a two -year amortization period;
k. The evidence showed that Appellant could sublease the
store at $.75 - .85 per square foot; and
1. The store constitutes a public nuisance.
2. The Town Council further finds as follows:
a. Store customers, persons loitering and persons driving
through the store's parking lot make noise (including loud
radios or portable stereos, firecrackers, arguments and
profanity), which is especially disturbing to the
neighborhood after 9 a.m.;
b. The current operation of the store constitutes a severe
and long- standing nuisance to the neighborhood,
particularly between the hours of 9:00 p.m, and 6:00 a.m.;
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c. The problems that the neighbors relate to the operation of
the store, such as litter, vandalism and reckless driving,
have occurred intermittently for eighteen years;
d. The history of the operation of the store indicates that
measures other than requiring closure during evening hours
and the posting of security guard at other critical times
are unlikely to be effective in mitigating the nuisance;
e. Most problems at the store occur mornings, noontimes,
after school lets out, at nights and on weekends; however,
the evening problems are more disturbing because more
people are at home, and they and their children are trying
to sleep.
f. The neighbors have given up calling the police to report
incidents because the persons causing the disturbances
disperse before the police arrive;
g. Game machines are an attraction to juveniles causing
groups of juveniles to congregate; and
h. The landscaping on the premises has been poorly
maintained; some landscaping has died; and the property is
not in keeping with the aesthetic standards of Los Gatos.
3. The Town Council finds that the Planning Commission erred as
follows:
a. There is no rationale for distinguishing between hours for
alcohol sales and hours of operation because the evidence
does not show that the gathering of persons at the store
after 9 p.m. is solely an alcohol- related activity; and
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b. The evidence does not show that there is a need for a
twenty -four hour security guard, provided the store is
open less than twenty -four hours per day.
4. The Town Council further finds the following, pursuant to Town
Zoning Ordinance Section 5.20.210:
a. The proposed use of the property is desirable to the
public convenience because the store offers a wide variety
of general merchandise to a generally localized
neighborhood;
b. The proposed use as limited will not impair the integrity
and character of the zone, since it is on
commercially -zoned site;
c. The proposed use will not be detrimental to the public
health, safety or general welfare in that, with the
conditions imposed, the activity will be in the nature of
normal commercial use; and
d. The proposed use of the property with the conditions
imposed is in harmony with the various elements or
objectives of the General Plan and Zoning Ordinance.
5. The Town Council makes further findings regarding the
amortization period:
a. Based on the fair market value of the store in 1982 of
$26,361, Appellant's investment will be completely
amortized by the end of 1984;
b. Based on the $41,000 investment made in 1982, Appellant's
investment will be completely amortized by the end of
1984; and
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c. The period of amortization commenced on June 30, 1982, the
effective date of Town Ordinances 1531 and 1532 by which
the store became a nonconforming use subject to
Conditional Use Permit.
6. The Town Council makes further findings regarding public
nuisance:
a. Based on the evidence and the findings set forth in
sections 1 and 2 of this resolution, the operation of the
store is and has been a public nuisance; and
b. If a longer amortization period is justified based on
dollar amount of investment, such amortization period is
appropriate for shortening because:
(1) The nuisance created by the operation of the store
has continued since 1966;
(2) Previous Town Councils have tried unsuccessfully
other measures to abate the nuisance, short of
closing down the store; and
(3) The detriment to the public outweighs the
desirability for along amortization period.
%. Based on the foregoing findings, the Town Council makes the
following decision pursuant to Zoning Ordinance Section 5.30.090:
a. Deny the appeal and uphold the Planning Commission
decision to reinstate Conditional Use Permit U -82 -18 with
the conditions modified as follows:
(1) The hours of operation shall be limited between 6:00
a.m. and 9:00 p.m.;
MM
(2) New shrubbery and ground cover shall be planted to
the satisfaction of the Director of Parks, Forestry
and Maintenance Services and the Director of
Planning;
(3) The store shall contain no more than 2 game machines;
(4) This approval includes the sale of beer and wine for
consumption off premises;
(5) A uniformed, unarmed security guard shall be
stationed on the premises during the time Leigh High
School is in operation, specifically 12:00 noon
through 9 :00 p.m. The objectives of the guard will
be as follows:
(a) To vigorously disperse loiterers on foot or in
the cars around the premises;
(b) To report to authorities public drunkenness,
drinking, drug use and reckless driving;
(c) To aid in the prohibition of sale of drugs and
liquors to minors;
(d) To discourage and /or prevent noise, littering
and vandalism; and
(e) The Conditional Use Permit shall be reviewed by
the Planning Commission on December 14, 1988.
(6) The amortization or compliance periods for the
respective conditions shall expire at midnight on the
following days:
(a) Conditions 1, 3 and 5: June 16, 1988
(b) Condition 2: August 16, 1988
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BE IT FURTHER RESOLVED that Resolution No. 1984 -221 is hereby
repealed.
Pursuant to Los Gatos Town Code Section 1 -15, the time for seeking
judicial review for the Town Council decision is governed by California
Code of Civil Procedure Section 1094.6.
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Los Gatos, California, held on the _ 6 day of May
l988 by the following vote.
AYES: COUNCIL MEMBERS Joanne Benjamin Thomas J. Ferrito
Brent N. Ventura and Mayor Eric D Carlson
NOES: COUNCIL MEMBERS Robert L. Hamilton
ABSTAIN: COUNCIL MEMBERS None
ABSENT: COUNCIL MEMBERS None
SIGNED: 'l _
MAYOR OF THE TOWN OF LOS GATOS
ATTEST:
r
CLERK OF THE TOWN OF LOS GATOS
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