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1982-209-Denying Appeal From Planning CommissionRESOLUTION NO. 1982 -209 RESOLUTION DENYING APPEAL FROM PLANNING CUTMESSION (445 Leigh Avenue - Stop -N -Go Market) 1. Harry F. Williams has appealed a decision of the Planning Commission, as follows: certain conditions imposed in the approval of Conditional Use Permit Application U- 82 -18; and 2. A public hearing was held by the Council on November 1, 1982; IT IS HEREBY RESOLVED: A. The Council hereby finds as follows: 1. The findings of the Planning Comission were correct. 2. The current operation of the market constitutes a severe and long - standing nuisance to the neighborhood, particularly between the hours of 9:00 p.m. and 6:00 a.m., as follows: a. The market has a history of attracting trouble- making teenagers, who, in connection with their patronizing the market, (1) make loud noises late into the night; (2) drive recklessly; and (3) litter and vandalize neighboring homes. b. The aforesaid problems have persisted off and on for 16 years, with periodic promises and efforts by the market to solve the problem being followed by periods of inaction and correspondingly - increased nuisance. c. The incidence of nuisance complaints from the Stop -N -Go market is sub- stantially greater than any of the other three convenience stores in the Town, as indicated by (1) comparative calls for police service, and (2) the fact that whereas there has been a strong and repeated neighborhood protest regarding Stop -N -Go, no neighbor appeared to request that any special conditions be imposed on the use per- mits granted to the other convenience stores. d. Many of the evening problems at Stop -N -Go are related to the sale of alcohol, and in particular to the established pattern of adults buying alcohol for minors. 3. Prohibiting the sale of liquor after 9:00 p.m. and requiring the market to be closed between 11:00 p.m. and 6:00 a.m. will greatly alleviate the afore- said nuisance conditions, by removing the attraction for teenagers to congregate in the area during the specified hours. 4. The amortization periods established by the Planning Con=ssion would con- stitute a reasonable accommodation between the public gains to be derived from the speedy removal of the non - conforming use and the private loss wimich removal of the use would entail, for the following reasons: a. As indicated above, the nuisance caused to the neighborhood in the evening hours is very severe, and there is therefore a compelling public need to brine it under control as quickly as possible. b. The history of the market indicates that measures other than requiring closure during evening hours are unlikely to be effective in mitigating the nuisance. c. While the market claims that the limitation on hours will cause it to became unprofitable, this was countered by evidence that (1) the market has operated at a profit in the past while being open only 18 hours /day; and (2) mitigation of the nuisance may, by reducing neighborhood resentment against the market, increase patronage during the allowed hours. d. Since projections of profit or loss are of necessity speculative (in contrast to the nuisance, which is quite real), the provision for review of the conditions in one year (or less on application of either the market or an interested citizen) will allow time to do the following: (1) Verify whether the hours limitation in fact causes the market to operate at a loss, or whether the limitation will be overcom by other positive factors. (2) Consider alternative methods of controlling the nuisance, which may be explored by such means as using the efforts of professional mediators. If losses are proven and less damaging alternatives are proposed, consideration may be given to modifying the hours limitation. -2- B. Based on the foregoing findings, the appeal is denied, and Conditional Use Permit U -82 -18 is approved, as follows: 1. The findings required by the Zoning Ordinance are as follows: a. The proposed use of the property is desirable to the public convenience because the market 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 a cam-ercia.11y -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. 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. 2. The conditions of operation shall be as follows: a. The hours of operation shall be limited to between 6:00 a.m. and 11:00 p.m. b. No liquor shall be sold between 9:00 p' m. and 6:00 a.m., c. Approximately 15 additional juniper or other shrubs shall be planted along the Hershner Drive frontage of the property, to the satisfaction of the Superintendent of Parks and Forestry. d. The store shall contain no more than two game machines. e. The approval includes the sale of beer and wine for consumption off premises. f. New landscaping shall be provided subject to the approval of the Planning Director. 3. The amortization or compliance period for the aforesaid conditions shall be as follows: a. Conditions c and f, within six months of this approval. -3- b. Conditions a, b, d and e, within 30 days of this approval. 4. The approval shall be reviewed in one year. PASSED ADID ADOPT AT A OF THE TOWN OF LOS GATOS THIS 1982, by the following votes: ATTEST: REGULAR 15th MEETING OF TES? TMN COUNCIL day of November AYES: COUNCII,0 HERS Ruth Gannon, Thomas J. Ferrito, Marlyn J. Rasmussen, Peter W. Siemens and Mayor Brent N. Ventura NOES: COUNCIT1Mv1BERS None ABSTAIN: COUNCITLM HERS None ABSENT: COUNCILIM11BFRS None SI=: Clerk-of t Town of Los Ga -4-