Loading...
13 Addendum - 408 N. Santa Cruz AvetowN o,MEETING DATE: 8/21/06 ITEM NO. 13 ADDENDUM !ps GAjpS COUNCIL AGENDA REPORT DATE: August 15, 2006 TO: MAYOR AND TOWN COUNCIL FROM: DEBRA J. FIGONE, TOWN MANAGER SUBJECT: CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION REGARDING MODIFICATIONS OR REVOCATION OF CONDITIONAL USE PERMIT U- 94-44 (GOGUEN'S LAST CALL) FOR THE OPERATION OF A BAR ON PROPERTY ZONED C-2. APN: 529-07-046. PROPERTY LOCATION: 408 N. SANTA CRUZ AVENUE. PROPERTY, OWNER: LOS GATOS SHOPPING CENTER, LLC. APPELLANT: CYNTHIA GOGUEN. REMARK: The attached information was received after the staff report was completed. Attachments: 1.-11. Previously Submitted 12. Fax from Kent G. Washburn dated August 17, 2006 (6 pages). Distribution: Cynthia Goguen, 408 N. Santa Cruz Ave., Los Gatos, CA 95030 Jim Zanardi, 16401 S. Kennedy Rd, Los Gatos, CA 95030 Kent Washburn, 123 Jewell Street, Santa Cruz, CA 95060 William Conners, P.O. Box 1521, Pebble Beach, CA 93953 Norman Matteoni, Matteoni, O'Laughlin & Hechtman, 848 The Alameda, San Jose, CA 95126 . NADEV\CNCLRPTS\2006\408 NSC TC 082106 c PREPARED BY: BUD N. LORTZ DIRECTOR OF COMMUNITY DEVELOPMENT Reviewed by: 9, Assistant Town Manager ,tQLTown Attorney Clerk Administrator Finance e/ Community Development KENT G. WASI[iBURN ATTORNEY AT LAW VOICE: (831) 458-9777 BAX: (831) 4594127 kn ntbwasl~bu:•t,U~dcmn puacrvaw,u 123 JCWC11 strixt SANTA CRUZ, CA41b'UN1A. 9NO60 Town Council Town of Los Gatos 110 E. Main St. 'Los Gatos, Ca. 95030 Re_ Goguen's Last Cail Respected Mayor and Council: August 17, 2006 by fax L 4:00 p.m. Due to the relatively short notice on which your staff set this matter for hearing 1 was relieved to learn this morning by telephone from Assistant Director of Planning Randy Tsuda that everything submitted on behalf of my client to the Planning Commission will be automatically included in the agenda packet you receive in preparation for Monday evening's hearing. That saves us a lot of excess copying and you the annoyance of having to wade through unnecessary duplicates. In this letter I will try to touch on arguments previously made in a way that does not waste your time and instead allows us all to focus on the real issues before you. I will also make some new arguments in response to what I understand the police and planning staff intend to do. As of this writing, despite telephone calls and letters asking for their written presentation, l have nothing, so I ain reduced to leaking educated guesses. Police Power It has been settled for decades in California law that a local legislative body such as yours has broad powers to exercise discretion in land use decision making, discretion which courts are reluctant to disturb. They Ilse something termed the "substantial evidence test" and uphold the government body's decision if there is any substantial evidence in the record to support it. . Substantial Vested Rights The holder of a "substantial vested right," however, which a; conditional use permit is, has the right to more deferential treatment. Courts will not just defer to a Council decision, but will instead apply the "independent judgment test" to weigh all the evidence and see if a fair result has been reached. Little if any deference to the government decision maker can be expected. I point this out because I feel that your police and planning Itdff have set this case up for you as if it were a "substantial evidence test" matter. It isn't. My client holds a long-standing use permit from the Town as has made a very large investment in her business and the license. The law entitles Attachment 12 90/t0 39ad NzinHHSdM91N3A ZZT96SVTEB 90:91 900Z/LT/80 her to keep it until the Town can show that the weight of the evidence (as a Superior Court would judge the matter using the above-mentioned independent j udgment test) shows that she has violated the terms of the permit and created a public nuisance. The main point of this letter is to show that while a biased interpretation of the evidence might yield some fractional support for the staff's position, an objective, independent judgment review of the evidence makes it clear that nay client has not violated her permit or created a nuisance. Existing Use Permit We are ail the victims here, my client most especially, of an impermissibly vague, and therefore legally inadequate, existing use permit. it contains a handful of specific conditions ail of which my client meets and has neut. One - the requirement of providing security if the police so require - she has done for years at peak hours even though the police have never instructed her to-do so! -In this regard she has gone above and beyond what the use permit requires. A fair and objective reading of sectioil 1 a. of the use permit, a reading which a judge would surely employ, is that to the extent it is perceived there is aproblem with recurrent alcohol-related incidents, the Chief of Police must communicate the same to the permit holder, give the owner a chance to resolve them, and then impose an increased security requirement if the owner's efforts do not resolve the problem. In response to direct questioning by the Planning Conunission Chief Seaman admitted that this had never been done and had never been attempted. Goguiens' position You will note from review of the Planning Commission record that we have always taken the position that my client must operate responsibly. We do not believe that she or anyone else operating under an alcohol license can ask or expect anything else, in loos Gatos or anyplace else. Despite our firm contention that there had been no showing ofjustification bor a new set of permit conditions, it was our position at the Commission level that we would acquiesce in every suggestion made except one: a reduction of late night business hours. 'We even agreed to take a careful look at the balance of receipts between late and early hours, but that check revealed that she would gradually go out of business on reduced hours. The existing permit allows my client to remain open until 2:00 a.m., and with a name like the Fast Call and a two decade history as the local place for people to get a late nightcap, the only way it can survive is with.that market iuehe. Town alcohol policy One of the constraints with which niy client and 1 and the Council must grapple in seeking a reasonable resolution of this matter without a waste of time and expeaise is the letter and spirit of the Town's alcohol policy. As it was construed by your counsel at the Planning Commission level, I believe, any change in the conditions of the use permit would trigger an automatic reduction in the operating hours. Some of the Commissioners seemed to feel a sense. of constraint to literally follow this interpretation at their level and leave the possibility of a different interpretation or application to your discretion. 90/Z0 3~Jdd N 9HSVM91N3A LZT969VTCB 90:9T 90aZ/LT/eO Goguuen's recommendation Our recommendation for resolving this problem and living the Town a clear-cut and mutually agreed avenue of effective enforcement is through conditions 1 b and c of the existing use permit. These terms in my opinion give room for the police, in conj unction with their express duties to require and oversee employee training and performance, to impose the kind of conditions of operation that the Planning Commission considered reasonable. We would propose to sign agreeing to operate by those conditions in substantially the form the Commission approved except for the earlier closing. Coupled with that we propose an express enforcement agreement with the Town stating that a material failure; by Goguen's to meet the objective criteria in such standards would be grounds for revocation. It has been called by various terms, but people seemed to think that the title "last chance agreement for the Last Call" had a certain cachet. - - - - --The third and final main featureof our proposal would be_th€tt-you continue this- hearing open for a time certain, whether shorter or longer, to see if Goguen's actually is performing to the defined standards. If it does it should survive; if it doesn't it should end. We proposed this set of terms not because we think my client guilty or because we believed that a court would impose it against Goguens' will. We proposed it demonstrate as clearly as we could while staying open for business that this is a responsible operator willing to be held to account so long as there are objective criteria. Objective analysis shows planning staff and police are giving biased and false testimony. The alternative to giving Gog wen's a chance to perform under its existing permit and be judged by clear, fair and objective analysis of the evidence according to clearly stated and objective criteria will be to engage in a very pointed and unpleasant inquiry into not only the misinterpretation and falsification of the evidence against Goguen's, but also the likely reasons why. I feel constrained not to put that latter contention as tot he underlying reasons in writing at this time because I think it will be such a unpleasant and difficult inquiry to conduct. Obviously we will so state at the hearing if need be. 1 prefer instead to point out the glaring holes in the substance and procedure of what the Town police and planning staff members are doing to Goguen's by means of police reports. 1. Sheer number of supposed calls- At the Commission level both planners and police officers repeatedly sought to use the sheer member of supposed calls to the Last Call as evidence of wrongdoing and the existence of a nuisance. I and others pointed out some of the absurdities in such contentions and demanded access to the reports to see what they really said. Some commissioners seemed to realize that there was a certain amount of staff gulling behind the waving around of those numbers;. others didn't and seemed to have been so prejudiced by it:we could not overcome the prejudice without access to the reports to demonstrate that they are almost all innocuous and show little if any evidence of any fault by Goguen's. Since the transcripts and the documentary record of the Commission process is being 90/60 3Jdd N~nEHSdM iN3A LtT969b168 90:9Z 900Z/LT/80 transmitted to you at this time; the same overstated, highly prejudicial figures necessarily will be part of the evidence you consider. We are entitled to and demand once again the opportunity to obtain copies of these reports, redacted if necessary to protect privacy, etc, so as to prove my client's innocence. We are more than willing do the work to analyze the reports and present the written,results to you so that you can see the police reports show that Goguen's is not now a nuisance. 2. The true question is this: Is Goguen's NOW a nuisance or in violation of the permit? Stag and the landlord or his favorite witnesses will want to try to distract you into thinking about and deciding a question that is not really before you. That question would be this: did Goguen's or its patrons ever make any mistakes in the last six years'? If they can distract you into focusing.or~ that question then they can hope for an adverse result. If instead you focus on the real and only question lawfully before you, "Is Goguen's now in violation - - - - or-now a nuisance?," the decision must be far us. - I focus on the present because ifa nuisance ever existed, and we do not believe it ever did because until the landlord, Mr. Zanardi, lost his eviction in March and had to pay the better part of ten thousand dollars in attorneys fees, there was never the slightest peep from any representative of the Towle whatsoever that there might be a problem, let alone of nuisance proportions, a nuisance that has already been cured and no longer exists cannot form the basis for a revocation. You must focus on the present and, we would agree, on any unbroken chain of events that stretches form the past to the present. In doing so, however, you should be guided by the express testimony of Captain Alana Forrest in the June 14 session of the Planning Commission. 'There she testified at about page ten of the transcript that a reduction of serious incidents at others bars in response to police dernwids was perfectly OK with the police. In order to avoid a charge of unlawful discrimination against my client as a woman bar owner, therefore the same standard of working for reduction rather than prosecuting as a nuisance, must be applied. 3. Captain Forrest falsely testified that Goguen's incidents have increased or stayed level Staff tells me you will be receiving a small selection of police reports that the chief will be relying on to advocate for revocation on August 21. We have been given such a set of reports. By Monday I will have a chart to show you on the projector that dissects these reports in detail. For the moment I want to focus on just one feature of what these reports reveal in stark contrast to Captain Forrest's allegations. At pages 8 to 11 of the June 14 transcript you can read that she told the Commission that unlike other bars which were worthy of police, cooperation and fair treatment because in response to police contacts they reduce the level of service calls, Goguen's was on track for a hypothetical total of 24 serious incidents for 2006, If that is true, and the reports produced are the ones which suplxisedly form the basis for the Chief's conclusion that Goguen's is a presently existing nuisance, why have the police produced only two reports for all of 2006 to elate! And why do those two reports show no fault on the part of the Last Call or its employees? 90/b0 30Vd NdnEHSdMJiN3A LZT969PTEB 90:5T 9006/LT/80 These are of course rhetorical questions. The reason that no other reports have been produced and the two produced are not damning to the Last Call is because the evidence does not back up what Captain Forrest told the Planning Commission. 4. The police admit to making no effort to a) communicate orb) work with Goguen's. Let's look at another startling fact: it took direct admonitions to other bar ownens and repeated meetings between the police and their staffs to achieve even the gradual reduction in incidents which the police chief and captain subjectively -find satisfactory in those bars' numbers. In response to repeated question- from the Commission the police admitted to not even trying this successful program with Goguen's because they didn't think my client would "cooperate." This is unequal treatment. The startling fact. even in the absence of any police effort or ccooperatiom whatsoever in a call - reduction program for Goguen's, there has been a night and day difference in serious call figures and the contents of the reports as to Goguen's since my client learned of the surreptitious drug sales in 2004. New vigilance on her part, better personnel and security measures, and employee training have markedly reduced the number and magnitude of calls at Goguen's. I will present you with a chart on Monday evening that shows the line of demarcation in 2004 and documents for you that the last two years of Last Cal l operations have more than met the standards that the police apply to other establishments. The only possible reason for misstating the evidence as to my client and applying a different standard is the kind of bias 1 am reluctant to publicly charge. if . you look at the evidence objectively instead of simply rubber stamping your planning, and law enforcement staff, T respectfully submit the only objective conclusion, the conclusion that a Superior Court applying the "independent judgment test" would reach, is that Goguen's is not now a nuisance. -5. There is a lot more evidence of planning and police bias. a. Captain Forrest testified with no evidehtiary support whatsoever to the absurd belies' that local teenagers were asking transients to illegally buy them high priced single drinks fiom Goguen's instead of in bulk at the liquor store next door. There is not one single shred of evidence that this ever happened or that the teens of Los Gatos are that careless with money. b. The- staff seems eager to blame Goguen's for broader social problems that the Town has totally apart from Goguen's and which have no logical nexus with Goguen's. i. Litter in the nearby Town parkin; lot. The evidence showed that it was Safeway and fast food litter or alcohol containers. Goguen's sells no food and no alcohol for takeout. The staff photos showed a neat, orderly trash are behind Goguen's. ii. Lack of a coherent and effective policy for dealing with mentally ill transients. We all know, and the evidence all shows, that these people live in the bushes by the trail and go to Safeway to shop and or buy alcohol, not Goguen's. We also all know that they adversely affect businesses in the nicer part of downtown Los Gatos on the other side of Highway 9 and are not allowed to congregate there. 90/90 39dd NdnEHSVM91N3A LZT9690T88 90*9T 900Z/LT/80 iii. Lack of lighting in the Town parking lot behind Goguen's. By contrast my client immediately after the Commission hearing had a new security light put on the back of her premises. I do not know if the Town has done anything yet. iv. Staff blames public urination by the transients in the Town parking lot on Goguen's while claiming that they are Gogucn's customers. The first 4surdity in this charge is that the transients smell and behave badly and drive away other customers. They are not welcome in the Last Call. And if they were they would be allowed to make their last toilet calls there and there would be no public urination problem. The public urination is no fault of Goguea's. Conclusion Perhaps that is a good note on which to wrap up this discussion. We have not been given access by the Town officials to the evidence that will fully exonerate my client despite the ostensible use of and reference to that very evidence by the police to justify their failure to work with Goguen's. We deserve a level playing field. We are willing to help define and then be held to criteria as strict and clear as, if not more than, the criteria other Los Gatos establishments are required to meet. We are not asking for any exemption from the rule of law and good sense. Instead we are petitioniag you to apply law and good sense to this situation instead ol'the biased and contrived arguments that are being presented against us. There is a certain cyaicism about the exercise of government power embodied in sayings like "you can't fight City Hall." We don't want to tight it or to escape the legitimate exercise of Town Hall power. We are standing up Jbr the kind of equal and unbiased, treatment that vindicates the powers you hold and increases public confidence that both civil and criminal law enforcement in this Town are fair and unbiased. By making a fair analysis of the facts and treating Goguen's as everyone else is treated you will only enhance and solidify the proper rule of law in your Town. Very truly yours, t~~" V y Kent G Washburn 90/90 :19vd NwaHSVM9iN2A LZI969VT68 90:5T 900Z/LT/•80