1984-221-Denying Appeal Of Planning Commission Decision Imposing Certain Conditions On The Granting Of Conditional Use Permit For Certain Stop-N-Go-MarketRESOLUTION NO. 1984 -221
RESOLUTION DENYING APPEAL OF PLANNING COMMISSION DECISION
IMPOSING CERTAIN CONDITIONS ON THE GRANi'ING OF
CONDITIONAL USE PERMI"i FOR CERTAIN STOP -N -GO MARKET;
MODIFYING CONDITIONS OF APPROVAL; DETERMINING
AMORTIZATION PERIOD; AND DETERMINING THE STORE
CONSTITUTES A PUBLIC NUISANCE
(445 Leigh Avenue -- Stop -H -Go Market)
WHEREAS:
1. National Convenience Stores, Inc. (Stop -N -Go Market) has appealed
a decision of the Planning Commission granting Conditional Use Permit
Application U -82 -1b subject to certain conditions for the property located
at 445 Leigh Avenue; and
2. Public hearings were held by the Town Council on November 19, 1984
and on November 26, 1984.
IF 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;
D. 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 7 -11.
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 p.m.;
b. The current operation of the store constitutes a severe and
long - standing nuisance to the neighborhood, particularly
between tine hours of 9:UO p.m. and ii:00 a.m.;
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 a security guard at other critical times
are unlikely to be effective in mitigating the nuisance;
e. flost 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
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h. The landscaping on the premises has been poorly maintained;
some landscaping has died; and the property is not in
keeping with tte 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
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 neighborhod;
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
$25,361, 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
C. The period of amortization commenced on June 30, 1962, the
effective date of Town Ordinances 1531 and 1532 by which the
store became a nonconforming use subject to Conditional Use
Perrni t.
6. The Town Council makes further findings regarding public nuisance:
M
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 1566; and
(2) Previous Town Councils have tried unsuccessfully other
measures to abate the nuisance, short of closing down
the store.
(3) The detriment to the public outweighs the desirability
for a longer amortization period.
/. Based on the foregoing findings, the Town Council makes the
following decision pursuant to Zoning Ordinance Section 5.3U.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:
('t) The hours of operation shall be limited to between
6:OU a.m. and 9:00 p.m.;
(2) New shrubbery and ground cover shall be planted to
the satisfaction of the Director of Parks, Forestry
and Pviaintenance 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 goon 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; and
(d) To discourage and/or prevent noise, littering and
vandalism; and
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(6) The Conditional Use Peyrnit shall be reviewed by the
Planning Commission on March 13, 1985.
b. The amortization or compliance periods for the respective
conditions shall expire at midnight on the following days:
(1) Conditions 3 and 5: December 3, 1984;
(2) Condition 1: December 11, 1984; and
(3) Condition 2: March 1, 1965.
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 field on the 3rd day of December 1984
by the following vote:
AYES: COUNCILMEMBERS Terrence J. Daily, Thomas J.
Ferrito, Brent N. Ventura and Mayor Joanne Benjamin
NOES: COUNUILMEMBERS None
ABSTAIN: COUNCILMENBERS Eric D. Carlson
ABSENT: COUNCILMEMBERS None
SIGNED:
MAYOR UP IFIL 1014fi UP LOS GAIUS
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ATTEST:
CLERVOF THE TOWN OF LOS rS
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