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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. -2- 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.; -3- 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 -4- 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 -5- 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 -7- 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 M