2001-220RESOLUTION NO. 2001R-220
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM DENYING REINSTATEMENT OF
CONDITIONAL USE PERMIT NUMBER 1043 AND MAKING
CERTAIN FINDINGS IN CONJUNCTION THEREWITH
WHEREAS, on September 3, 1968, the City Council of the
City of Anaheim (the "City Council") adopted Resolution No. 68R-
540 to approve Conditional Use Permit 1043 ("C.U.P. No. 1043"),
to permit a 129-unit, three-story motel on the subject property
at 2748 W. Lincoln Avenue; and
WHEREAS, this property is developed with a ll7-unit,
three-story motel (the "Lincoln Inn"), in the CL (Commercial
Limited) Zone; that the Anaheim General Plan designates this
property for General Commercial land uses; and that this property
is located within the West Anaheim Commercial Corridors
Redevelopment Area and Connnunity Planning Area No. 3; and
WHEREAS, on November 22, 1999, the Anaheim Planning
Commission (the ~Planning Commission") considered revocation or
modification of C.U.P. No. 1043 at the request of the Code
Enforcement Division and Police Department; that the Planning
Commission adopted Resolution No. PC99-203 to add certain
conditions of approval including length of stay limitation and a
time limit to expire on May 22, 2000; that the Planning
Commission's decision of November 22, 1999, was appealed to the
City Council pertaining to the length of stay limitation; and
that on January 25, 2000, the City Council adopted Resolution No.
2000R-15 to amend the conditions of approval, including Condition
No. 21 which was amended to read:
That this conditional use permit shall expire six (6)
months from the date of this resolution, on May 22,
2000."
WHEREAS, the city initiated a public hearing before the
Planning Commission on May 22, 2000, to determine compliance with
conditions of approval and to consider modification to certain
conditions including the 30-day in 90-day occupancy limitation
and the expiration date; and that the Planning Commission adopted
Resolution No. PC58-2000 reinstating and approving C.U.P. No.
1043, amending the conditions of approval and providing for an
expiration date of January 15, 2001; and
WHEREAS, on January 17, 2001, the Planning Commission
held a public hearing pertaining to C.U.P. No. 1043 to determine
compliance with the conditions of approval and to consider
reinstatement of the conditional use permit by the deletion or
modification of the time limit which had expired January 15,
2001; and that the Planning Commission adopted Resolution PC2001-
4 denying reinstatement of C.U.P. No. 1043 by the deletion or
modification by extension of the time limit which had expired
January 15, 2001, and determined that the permit had not been
exercised in conformance with certain conditions of approval and
stipulations that apply to the conditional use permit; and
WHEREAS, on February 4, 2001, the owner of the Lincoln
Inn, Ben Karmelich, filed a timely appeal of the Planning
Commission's decision denying reinstatement of C.U.P. No. 1043 by
the deletion or modification of the time limit which had expired
January 15, 2001; and
WHEREAS, on February 27, 2001, by motion, the City
Council appointed a Hearing Officer to conduct a hearing on the
matter and make recommendations to the City Council pursuant to
Anaheim Municipal Code Section 1.12.110; and
WHEREAS, a Notice of the Public Hearing before a
Hearing Officer regarding the appeal of the Planning Commission's
decision was duly given by the City Clerk; and
WHEREAS, on on April 26, 2001 and June 6, 2001, the
public hearing on the appeal of the Planning Commission's
decision denying reinstatement of C.U.P. No. 1043, by the
deletion or modification of the time limit, was held. The City
of Anaheim appeared and was represented by Mark Gordon, Deputy
City Attorney. Appellant appeared and was represented by Frank
Weiser, Esq. Witnesses were presented by both sides and
evidence, both oral and written, was received. Testimony was
also received from the public. At the conclusion of the
testimony, the Hearing Officer closed the evidentiary portion of
the hearing and continued the public hearing to permit the
completion of the transcript of the proceedings and requested
each side to submit a written closing brief; and
WHEREAS, written briefs were submitted by each side.
Thereafter the public hearing was closed; and
WHEREAS, the Hearing Officer has, in accordance with
Section 1.12.110 of the Anaheim Municipal Code, prepared, or
caused to be prepared, the administrative record of the hearing;
and
WHEREAS, the Hearing Officer, having considered the
testimony of witnesses at the hearing, exhibits received at the
hearing, oral and written arguments and proposed findings of fact
2
and recommendations of counsel, prepared Findings of Fact and
Recommendations, pursuant to Anaheim Municipal Code Section
1.12.110 (the "Findings of Fact"); and
WHEREAS, on August 1, 2001, the City received the
administrative record and the proposed Findings of Fact and
Recommendations submitted by the Hearing Officer; and
WHEREAS, on August 21, 2001, the City Council did
review and consider the administrative record and the proposed
Findings of Fact and Recommendations of the Hearing Officer; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Anaheim that the City Council hereby adopts the
Evidentiary Findings as set forth in Paragraphs 26 through 98 of
the proposed Findings of Fact, and further adopts the proposed
Recommendations of the Hearing Officer to deny the appeal and
uphold the Planning Commission's decision to not reinstate
Conditional Use Permit No. 1043. The proposed Findings of Fact
and Recommendations of the Hearing Officer is attached hereto,
marked Exhibit A, and incorporated herein by this reference as if
set forth in full.
BE IT FURTHER RESOLVED that the time within which
rehearings must be sought is governed by the provisions of
Section 1.12.100 of the Anaheim Municipal Code and the time
within which judicial review of final decisions must be sought is
governed by the provisions of Section 1094.6 of the Code of Civil
Procedure and Anaheim City Council Resolution No. 79R-524.
THE FOREGOING RESOLUTION is approved and adopted by the
City Council of the City of Anaheim this 21st day of August,
2001.
~HEIM
ATTEST:
41525.1
3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss,
CITY OF ANAHEIM )
I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing
Resolution No. 2001R-220 was introduced and adopted at a regular meeting provided by law, of
the Anaheim City Council held on the 21st day of August, 2001, by the following vote of the
members thereof:
AYES:
MAYOR/COUNCIL MEMBERS: Feldhaus, McCracken, Daly
NOES:
MAYOR/COUNCIL MEMBERS: Kring, Tait
ABSENT: MAYOR/COUNCIL MEMBERS: None
~Y CLER~ OF THE CITY OF ANAHEIM
(SEAL)
IN RE: APPEAL OF BEN KARM]~LICH, O~R OF THE
LINCOLN INN, OF A DECISION OF THE ANAHEIIVI PLANNING
COMMISSION DENYING RE~STATE~NT OF
CONDITIONAL USE PERNfiT NO. 1043 UNDER W}tICH TH~
LINCOLN INN IS PERMITTED TO OPERATE A MOTEL AT
2748 WEST LINCOLN AVE~, ANAHEIM, CALIFO~A
FINDINGS OF FACT AND RECOMMENDATIONS OF
HEARING OFFICER TO ANAt-IEI2~ CITY COUNCU~
RELATI~ TO. APPEAL OF PLANNING COMMISSION DECISION
DENYING REINSTATEMENT OF CONDITIONAL USE PERMIT NO. 1043
UNDER WHICH THE LINCOLN INN IS PERMITTED TO OPERATE A MOTEL
AT 2748 WEST LINCOLN AVE~, AN~~, CALIFORNIA
This matter came on for a public hearing on April 26 and June 6, 2001, on the appeal of Ben
Karmelich, owner of the Lincoln Inn, of a decision of the Anaheim Planning Comrnission denying
reinstatement of Conditional Use Permit No. 1043 under which the Lincoln Inn is permitted to
operate a motel at 2748 West Lincoln Avenue, Anaheim, California. Frank A. Weiser, Esq.
appeared on behalf of Appellant and Mark S. Gordon, Deputy City Attorney, appeared on behalf
of the City of Anaheim. The Hearing Officer, Victor J. Kaleta, having considered the testimony,
the exhibits received at the hearing, documents judicially noticed and the arguments, oral and
written, of the parties, finds as follows:
BACKGROUND FINDINGS'
,
This hearing concerns the operation of the Lincoln Inn, a 117 unit three-story motel at
2748 West Lincoln Avenue, Anaheim, California, under Conditional Use Permit No. 1043.
.
Conditional Use Permit No. 1043 was originally approved by the Anaheim City Council
on September 3, 1968, by Anaheim City Council Resolution No. 68K-540.
(City Exhibit 1)
.
As adopted on September 3, 1968, Conditional Use Permit No. 1043' permitted a 129 unit
three-story motel to be built at 2748 West Lincoln Avenue. The property wa~ developed
as a 117 unit three-story motel rather than its fully permitted 129 units. (City Exhibit 2)
.
On November 22, 1999, the Anaheim Planning Commission considered revocation or
modification of Conditional Use Permit No. 1043 at the request of the Code Enforcement
Division and Police Department. Following the public hearing, the Planning Commission
adopted Resolution No. PC99-203 to add certain conditions of approval including length
of stay limitation and a time limit to expire on May 22, 2000. (City Exhibit 1)
Page 1 of 19
lBIT A
5~
,
.
.
10.
11.
12.
13.
14.
The Planning Commission's decision of November 22, 1999, was appealed to the
Anaheim City Council and on January 25, 2000, the City Council adopted Resolution No.
2000K-15 amending the expiration date to July 25, 2000. (City Exhibits 1 & 2)
On May 22, 2000, the Anaheim Planning Cormuission, following a public hearing,
reinstated and approved Conditional Use Permit No. 1043, by adopting Resolution No.
PC2000-58 which restated the conditions of approval for Conditional Use Permit No.
1043 and provided for a expiration date of January 15, 2001. (City Exhibit 1)
On January 17, 2001, the Anaheim Planning Coi~uission held a public hearing on a
Petition for Reinstatement of Conditional Use Permit No. 1043 by modification or
deletion of the time limitation of Januaryl5, 2001. Following the public heating, the
Planning Commission adopted Resolution No. PC2001-4 denying the Petition. (City
Exhibit 2)
On February 4, 2001, Ben Karmelich, owner of the Lincoln Inn appealed the Planning
Cm~nuission decision of 2January 17, 2001. (City Exhibit 3)
On February 27, 2001, the Anaheim City Council appointed Victor Kaleta to hear the
appeal of the Pla~ming Cormuission' s decision as permitted by Section 1.12.100 of the
Anaheim Municipal Code. (City Exhibit 4, Page 5, and Judicially Noticed Document VI)
On April 5, 2001, the Anahehu City Clerk mailed a Notice of Public Hearing Before a
Hearing Officer on the subject appeal to be held on April 26, 2001, to various persons.
'(City Exhibit 6)
On April 12, 2001, the Anaheim City Clerk mailed a Notice of Public Hearing Before a
Hearing Officer on April 26, 2001, to Ben Karmelich, owner of the Lincoln Inn. (City
Exhibit 5)
On April 12, 2001, a Notice of Public Hearing Before a Hearing Officer on April 26,
2001, was published in the Anaheim Bulletin. (City Exhibit 7)
On April 26, 2001 and June 6, 2001, a public hearing on the appeal of Ben Karmelich,
owner of the Lincoln Inn, was held before Victor J. Kaleta, Hearing Officer. The City
was represented by Mark S. Gordon, Deputy City Attorney, and the Appellant was
represented by Frank A. Weiser.
The hearing was continued after June 6, 2001, to permit preparation of the transcript and
closing arguments of the parties. The transcript was delivered on June 22, 2001.
Arguments were due and completed on and the hearing was closed on July 13, 2001.
Page 2 of 19
GROUNDS FOR TERMINATION OR MODIFICATION OF CONDITIONAL USE
PERMITS AND FOR EXTENSION, MODIFICATION OR DELETION OF A TI2VIE
LI/VlITATION ON A CONDITIONAL USE PERMIT
15.
Anaheim Municipal Code 18.03.091, TERMINATION OR MODIFICATION OF
AMeNDMeNTS, CONDITIONAL USE PERMITS OR VARIANCES (PROCED~),
sets forth the procedures for termination or modification of conditional use permits.
(Judicially Noticed Document I)
16.
Anaheim Municipal Code Section 18.03.092, TERMINATION OR MODIFICATION OF
CONDITIONAL USE PERMITS OR VARIANCES (GROUNDS), provides for the
modification or termination of conditional use permits and variances on one or more of the
following grounds'
".010 That the approval was obtained by fraud;
.O20
That the use or variance for which such approval is granted is not being exercised
within the time specified in such permit;
.030
That the use or variance for which such approval was granted has ceased to exist
or has been suspended for one year or more;
.040
That the permit or variance granted is being, or recently has been exercised.
contrary to the terms or conditions of such approval, or in violation of any statute,
ordinance, law or regulation;
.05O
That the use or variance for which the approval was granted has been so exercised
as to be detrimental to the public health or safety, or so as to constitute a nuisance;
.055
That the use or variance for which the approval was granted has not been
exercised, and that based upon additional information or due to changed
circumstances, the facts necessary to support one or more of the required
showings for the issuance of such entitlement as set forth in this chapter no longer
exist.
.060
That any such modification, including the imposition of any additional conditions
thereto, is reasonably necessary to protect the public peace, health, safety or
general welfare, or necessary to permit reasonable operation under the conditional
use permit or variance as granted." (Judicially Noticed Document II)
Page 3 of 19
17.
Anaheim Municipal Code Section 18.03.093, CONDITIONAL USE PER_MITS AND
VARI~CES APPROVED WITH TIM~ LIMITATIONS, sets forth procedures for the
extension, modification or deletion of time limitations on conditional use permits or
variances. The process is initiated by filing a request with the Planning Department and
tendering a fee. A noticed public hearing is held. Subsections 18.03.093.040 et seq. set
forth the grounds for extension, modification or deletion; they reads as follows'
.040
Reinstatement of the approval by extension, modification or deletion of any time
li~rdtation shall be granted only upon the applicant presenting, evidence to establish
the following findings:_ (emphasis added)
.041
The facts necessary to support each and every required showing for the. issuance of
such entitlement as set forth in this chapter exist;
.042
Said permit is being exercised substantially in the same manner and in conformance
with all conditions and stipulations originally approved by the approval body;
.043
Said permit or variance is being exercised in a manner not detrimental to the
particular area and surrounding land uses, nor to the public peace, health, safety
and general welfare; and
.044
With regard only to any deletion of a time limit, such deletion is necessary to
permit reasonable operation under the permit or variance as granted."
(Judicially Noticed Document III)
18.
Anaheim Municipal Code Subsection 18.03.093.041 refers to "[t]he facts necessary to
support each and every required showing for the issuance of such entitlement as set forth
in this chapter exist." The facts necessary to support the issuance of a conditional use
permit are set forth in Section 18.03.030 of the Anaheim Municipal Code.
19.
Anaheim Municipal Code Section 18.03.030, CONDITIONAL USE PER_MITS
(C.U.P.' s) - GENERAL, sets forth the required showings in Subsections .030 through
.036 which read:
".030 Required Showings. All conditional use permits may be granted by the City
Council or Planning Cmmuission after the required public hearings. Before the
City Council or Planning Cmmnission may grant any request for a conditional use
permit, it must make a finding of fact, by resolution, that the evidence presented
shows that all of the following conditions exist' (emphasis added)
.031 That the proposed use is properly on for which a conditional uie permit is
authorized by this code, or is not listed as a permitted use;
Page 4 of 19
.032 That the proposed use will not adversely affect the adjoining land uses and
the growth and development of the area in which it is proposed to be located;
.033 That the size and shape of the site proposed for the use is adequate to allow
the full development of proposed use in a manner not detrimental to the particular
area nor to the peace, health, safety and general welfare;
.034 That the traffic generated by the proposed use will not impose an undue
burden upon the streets and highways designed and improved to carry the traffic in
the area;
.035 That the granting of the conditional use permits under the conditions
imposed, if any, will not be detrimental to the peace, health, safety and general
welfare of the citizens of the City of Anaheim.
.036 Notwithstanding the provisions and limitations of the foregoing subsections
.032, ..033..034, and .035, the Planning Commission or City Council may grant
any request for a conditional use permit if the City Council or Planning
Commission finds and determines either in the resolution approving the conditional
use permit or any other finding pertaining to the use (including enviromuental
documentation) that the concerns addressed by subsections .032, ..033..034, and
.03 5 are (1) mitigated to a level of insignificance or (2) that overriding
considerations Warrant the approval of.the conditional use permit in the event that
either (a) one or more of the findings of fact required by subsections .032, .033.
.034, and .03 5 is not made or (b) insufficient evidence is set forth in the record to
support one or more of the findings of fact." (Judicially Noticed Document IV)
RUI,~GS ON EVlDENTIARY OBJECTIONS:_
20.
City Exhibits 1 - 9,11 - 20 and 22 were received into evidence without objection.
21.
City Exhibit 10, a letter from John Schwartz to David See supporting denial of the
reinstatement of Conditional Use Permit No. 1043, was objected to on the ground that it
is hearsay. The Rules of Evidence are less stringent for administrative hearings than formal
court proceedings. The letter will be entered into to evidence for the limited purpose of
establishing that Mr. Schwartz at 2731 Lincoln Avenue, Anaheim, was opposed to the
reinstatement of Conditional Use Permit No. 1043 and not for the truth of any other
matter asserted therein.
22.
City Exhibit 21, a Substandard Housing - Inspection Log for the Lincoln Inn prepared by
Don Yourstone, was objected to on the ground it was hearsay. The City argued the
inspection log was covered by the business record exception to the hearsay role. The
Hearing Officer so rules and the inspection log will be entered into evidence.
Page 5 of 19
23.
City Exhibits 23 - 25, graphs of police activity at the Lincoln Inn and other motels, were
objected to on grounds of lack of foundation and hearsay. The City argued it had
provided a foundation and the graphs were covered by the business records exception.
The Hearing Officer agrees a foundation was laid but does not agree the graphs come
within the business records exception. Although the underlying records from which the
graphs were prePared are records prepared and retained in the regular course of the City's
business, these graphs were specially prepared for this hearing. Further, the nexus
between the police activity and the grounds for denying reinstatement of Conditional Use
Permit No. 1043 was never clearly established to the satisfaction of this Hearing Officer.
In addition, the appropriateness of comparing the Lincoln Inn to the other motels was
never clearly established to the satisfaction of this Hearing Officer. Therefore City Exhibits
23 - 25 are not admitted into evidence and will not be considered by this Hearing Officer.
24.
No objections were raised as to exhibits offered into evidence by the Appellant.
Therefore, all such exhibits are entered into evidence.
!,IMITATIONS ON HEARING OFFICER'S AUTHORITY:
25.
It is this Heating Officer's understanding that his authority is limited to analyzing the
evidence set forth at the public hearing against the standards set forth in the ordinances of
the City of Anaheim regulating the modification or termination of conditional use permits.
Such authority does not permit this Hearing Officer to determine the validity or
constitutionality of the City of Anaheim's ordinances regulating the modification or
termination of conditional use permits. Neither does such authority permit this Hearing
Officer to balance the City of Anaheim's ordinances regulating the modification or
termination of conditional use permits against other state and federal laws that may be
argued to apply to the facts of the case.
EVIDENTIARY FINDINGS'
26.
The standards set forth in Findings 16 and 17 are both arguably applicable to the instant
case. The Planning Commission resolution refers to denial of the Petition for
Reinstatement of Conditional Use Permit No. 1043 but said Petition was not introduced
into evidence in the instant case, If the Petition only requested extension, deletion or
modification of the time limitation, then Section 18.03.093 of the Anaheim Municipal
Code would be the appropriate standard. However, if it also requested deletion of the
condition that no person occupy a room at the motel for more than 30 days in any 90 day
period (the 30 - 90 day condition), then Section 18.03.092 would also apply.
27.
Since both issues were argued and this is a de nova hearing, the deletion of the 30 - 90 day
condition will be analyzed with the standards in Section 18.03.092 and the time limitation
deletion will be analyzed with the standards in Section 18.03.093. Section 18.03.093 puts
the burden of proof on the Appellant to present evidence to establish the findings.
Page 6 of 19
28.
29.
30.
31.
The issues in the instant case can be grouped into areas as follows:
Is the Lincoln Inn being operated as an apartment complex rather than a motel
which relates to Condition No. 18, the 30 - 90 day role?
b,
Has Conditional Use Permit No. 1043 been exercised contrary to the conditions of
approval?
Has Conditional Use Pen~t No. 1043 been exercised so as to be detrimental to the
public health or safety or so as to constitute a nuisance?
d,
Is the deletion of the time limitation, January 15, 2001, as set forth in Condition
No. 1, necessary to permit reasonably operation under Conditional Use Permit No.
1043 as granted?
e.
Does the proposed use, operation of the Lincoln Inn at 2748 West Lincoln Avenue
adversely affect the adjoining land uses and the growth and development of the
area in which it is located?
The conditions of approval, other than the time limitation, primarily focused on in the
public hearing were as follows:
Condition No. 3 - Appliances for the heating and preparation of food shall not be
permitted in guest rooms.
bo
Condition No. 8 - Every occupied room shall be provided with daily maid service.
Condition No. 13 - Maintain the premises free of Code violations.
d,
Condition No. 18 - 30 - 90 day role.
David See, Senior Planner, testified on the necessity of a conditional use permit for
operation of the Lincoln Inn and the different development standards for apartments vis-a-
vis the Lincoln Inn as developed. (Transcript, Volume II, Pages 94-1Z0).
With respect to the necessity of a conditional use permit, Mr. See testified that the zoning
and General Plan designation for the property, a 1.7 acre parcel at 2748 West Lincoln
Avenue, is Commercial Limited which allows for motels with a conditional use permit.
(Transcript, Volume II, Page 96, line 2, through Page 97, line 4)
Page 7 of 19
32.
33.
With respect to the development standards for apartments vis-a-vis the development of the
Lincoln Inn, Mr See testified as follows'
The development standards for medium-density (RM-1200) were selected for
comparison as RM-1200 is the most dense in Anaheim. (Transcript, Volume II,
Page 106, lines 10-18) (City Exhibit 8)
b,
Apartments require a fully landscaped set back of 3 5 feet. The Lincoln Inn has a 3 5
foot set back but it includes parking and driveway encroachments. (Transcript,
Volume II, Page 106, line 25, through Page 107, line 5) (City Exhibit 8)
The maximum height for apartments is two stories while the Lincoln I~m is tlu-ee
stories. (Transcript, Volume II, Page 107, lines 6-8) (City Exhibit 8)
d,
The maximum density allowed for apartments is 1200 square feet of land per unit
which, for the 1.7 acres (74052 square feet), would permit 61 units. The Lincoln
I~m is developed with 117 units. (Transcript, Volume II, Page 107, lines 9-15)
The minimum recreation/leisure area per unit for apartments is 200 square feet.
The Lincoln Inn only provides 93 square feet per unit. lit should be noted that the
25,800 square feet reflected in the testimony and City Exhibit 8 is incorrect as it is
based on 200 square feet per unit for a 129 units rather than the 117 mzits actually
built.] (Transcript, Volume II, Page 107, linesl 6-21) (City Exhibit 8)
The minimum private recreational/leisure area per unit for apartments is 100
square feet for first floor units and 50 square feet for second floor units. The
Lincoln Inn has none. (Transcript, Volume II, Page 107, line 22, through Page
108, line 2) (City Exhibit 8)
g,
The minimum parking requirement for apartments is 200 spaces; the 234 on the
City Exkibit 8 is incorrect. The Lincoln Inn provides only 100 spaces. (Transcript,
Volume II, Page 108, lines 3-7) (City Exhibit 8)
The minimum size for apartments is 550 square feet for ~tudio unit~ which are
limited t° 20 percent of total units and 700 square feet for one bedroom units. The
Lincoln Inn's units are approximately 395 square feet. (Transcript, Volume II,
Page 108, lines 8-14) (City Exhibit 8)
Mr. See, on cross examination, testified that the 30 - 90 day rule is not a provision of the
Anaheim Municipal Code. (Transcript, Volume II, Page 116, line 23, through Page 117,
line 2)
Page 8 of 19
34.
35.
Don Yourstone, Senior Code Enforcement Inspector, testified as to Code compliance
inspections of the Lincoln Inn and enforcement actions relative thereto. (Transcript,
Volume II, Pages 121 -174)
With respect to Code c0mpliance inspections, Mr. Yourstone testified as follows:
He has conducted 25 to 30 inspections of the Lincoln Inn, formerly the Seville Inn,
over the past several years. (Transcript, Volume II, Page 122, lines 2-6)
He conducted an inspection on September 23, 1999, and thereafter on September
29, 1999, sent a Notice of Violation to the Seville Inn. Violations on the exterior
and interior ( Rooms 102, 207, 220, 227, 228, 307,.304, 303,201, 110 and 231)
were noted. (Transcript, Volume II, Page 123, line 2, through Page 124, line 16)
(City Exhib it 11 )
bo
He conducted an inspection on January 20, 2000, and thereafter on January 27,
2000, sent a Notice of Violation to the Lincoln Inn. Violations on the exterior and
interior were noted. (Transcript, Volume II, Page 125, line 12, through Page 126,
line 6) (City Exhibit 12)
He conducted an inspection on February 16, 2000, and thereafter on February 18,
2000, sent a Notice of Violation to the Lincoln Inn. Violations on the exterior and.
interior were noted. (Transcript, Volume II, Page 127, lines 5-15) (City Exhibit
~3)
do
He conducted an inspection on March 2, 2000, and thereafter on March 7, 2000,
sent a Notice of Violation to the Lincoln Inn. Violations on the exterior and
interior were noted. (Transcript, Volume II, Page 128, line 17, through Page 129,
line 1) (City Exhibit 14)
eo
He conducted an inspection on October 12, 2000, and thereafter on October 23,
2000, sent a Notice of Violation to the Lincoln Inn. Violations on the exterior and
interior were noted. (Transcript, Volume II, Page 131, lines 3-22) (City Exhibit
~5)
He photographed Code violations on the exterior and interior of the Lincoln Inn.
Exterior violations such as broken asphalt, graffiti, missing fire extinguisher are
depicted. Interior violations depicted include lack of daily maid service,
deteriorated wails and ceilings, plumbing problems, missing air conditioner face
coverings, broken glass, mold, etc. (Transcript, Volume II, Page 132, line 17,
through Page 134, line 4) (City Exhibit 18)
Page 9 of 19
36.
3¸7.
38.
39.
40.
41.
g.
He conducted an inspection on April 23,2001, took photographs and prepared a
Substandard Housing Inspection log. Exhibit 21 shows interior violations including
cooking appliances (Rooms 111,117, 236, 229, 219, 216, 215, 205, 204, 326,
333), no daily maid service ( Rooms 208, 326, 329), deterioration in bathrooms
(Rooms 112, I14, 115,116, 117, 118,246, 235,233,232, 231,229, 226, 220,
202, 305,307, 311,314, 326, 327, 329, 332, 333,342, 343,345, 346, 349) and
electrical shorts (Room 203). The photographs in Exhibit 22 show significant
personal household items in rooms which is inconsistent with operation as a motel.
(Transcript, Volume II, Page 136, line 6, through Page 148, line 20) (City Exhibits
21 and 22)
With respect to the 30 - 90 day role, Mr. Yourstone testified that the Rainbow Inn had
such a rule imposed about 1 ~A-2 years ago but it was deleted in September or October
2000 after the Rainbow Inn had come into compliance with respect to the rule. He further
testified that subsequent inspections indicate the Rainbow Im~ is not allowing guests to
stay for more than 30 days in a 90 day period even though the 30 - 90 day rule is no
longer a condition of approval of its conditional use permit. (Transcript, Volume II, Page
151, line 22, through Page 156, line 21)
On cross examination, Mr. Yourstone testified that there were no discussions of closing
the Lincoln Inn as a result of the criminal complaint for Code violations nor Ben
Karmel/ch's nolo plea. lie further testified that, after the probation conditions were
reinstated, the objective was to bring the building into compliance and not shut it down.
(Transcript, Volume II, .Page 160, line 22, through Page 163, line 16) (City Exhibits 15
and 16)
On cross examination, Mr. Yourstone further testified that barring further inspections, the
Lincoln Inn was in compliance with the interior conditions as of his last inspection.
(Transcript, Volume II, Page 164, lines 16- 20)
On cross examination, Mr. Yourstone further testified that he did not have specific
information on violations of the 30 - 90 day role at the Lincoln Inn but that Ben Karmelich
had admitted he was not adhering to such rule but specific violations were not discussed.
(Transcript, Volume II, Page 167, .line 6, through Page 168, line 8)
On cross examination, Mr. Yourstone further testified that the criminal Complaint and
Petition to Revoke Probation did not include violations of the 30-90 day rule. (Transcript,
Volume II, Page 168, lines 13- 16)
On re-direct examination, Mr. Yourstone confirmed Ben Karmelich admitted violations of
the 30 - 90 day rule. (Transcript, Volume II, Page 170, line 22, through Page 172' line 1)
Page 10 of 19
42.
43.
44.
45.
46.
47.
48.
49.
On re-cross examination, Mr. Yourstone testified that the Lincoln Inn is better maintained
now than under prior ownerships. (Transcript, Volume II, Page 174, lines 2-20)
Lieutenant Kahl Greg Switzer testified on direct and cross examination as to the
preparation of City Exhibits 23, 24 and 25 and to police activity at the Lincoln Inn.
(Transcript, Volume II, Page 175, line l 3, through Page 204, line 23 ) For the reasons
stated in Finding 23, City Exhibits 23, 24 and 25 are not admitted into evidence.
Similarly, the testimony of Lt. Switzer will not be considered by this Hearing Officer
because of the failure to clearly establish a clear nexus between the police activity testified
to and the grounds for denying reinstatement of' Conditional Use Permit No. 1043 .and the
failure to clearly establish the appropriateness of comparing the Lincoln Inn to the other
motels.
Ben Karmelich, appellant and owner of the Lincoln Inn, testified that "[w]ith the help of
the cormuunity police and the City's Code Enforcement Division, we turned an old
rundown motel that was full of drugs and crime into a renovated motel that offers clean
and affordable rooms in safe enviromuent. The motel also offers services that fit the needs
of the clientele, and the clientele is made up of mostly low income families and low income
seniors." (Transcript, Volume I, Page 7, lines 9-16) (Appellant Exhibit A)
Mr. Karmelich further testified as to the updating of the interiors of the motel, pest control
work, landscaping replacement, pool repainting and water heater replacement, security
addition and elimination of. problem tenants. (Transcript, Volume I, Page 7, line 21,
through Page 10, line 21) (Appellant Exhibit A)
Mr. Karmelich further testified that in the next few months he intends to repair and paint
the stucco, pave to parking lot and add some landscaping. (Transcript, Volume I, Page 11,
lines 1-6) (Appellant Exhibit A)
Mr. Karmelich further testified his motel is home for families that can't get an apartment,
that his rooms are large and every room has a kitchenette, the motel has a community
room for parties, Bible studies, church services and after school activities. (Transcript,
Volume I, Page 11, line 7, through Page 12, line 1) (Appellant Exhibit A)
Mr. Karmelich further testified on the housing crisis facing low income families, the
problem with the 30-90 day role, his 28 day check out rule that requires tenants to check
out every 28 days for one day and the transient occupancy tax his motel produces.
(Transcript, Volume I, Page 12, line 2, through Page 20, line 15) (Appellant Exhibit A)
Mr. Karmelich further testified he could live with the 30 day check out requirement but
wanted the 90 day no return requirement omitted. (Transcriptl Volume I, Page 20, line 16,
through Page 21, line 12.) (Appellant Exhibit A)
Pagellof 19
50.
51.
52.
53.
54.
55.
56.
57.
Mr. Karmelich further testified that he would like to appeal the no cooking appliances
condition of approval and the two security guard condition. He testified that "every room
in my motel has a kitchenette which means the guest could cook over the stove, but they
are not allowed to heat food in the microwave or toaster." He testified there is no need for
two security guards as one will do. (Transcript, Volume I, Page 21, line 17, through page
22, line 15.) (Appellant Exhibit A)
Mr. Karmelich further testified that he had spent about $600,000 on the property since he
purchased it- back taxes, interest and refurbishing expenses, that he requires tenant to
check out every 28 days and that he pays about $85,000 in Transient Occupancy Tax
yearly. (Transcript, Volume II, Page 208, line 3, through Page 212, line 14)
Mr. Karmelich further testified that his tenant mix is about 25 percent senior citizens with
the rest mostly families with children. (Transcript, Volume II, Page 216, lines 5-14)
On cross examination, Mr. Karmelich testified that 10 to 15 guests (senior citizens,
security guard, desk clerk) are not required to check out every 28 days and that
individuals are staying at the Lincoln Inn for more than 30 days in a 90 day period.
(Transcript, Volume II, Page 220; line 13, through Page 222, line 9)
On redirect examination, Mr. Karmelich testified that he cannot sell the property or obtain
financing on it without a permit [conditional use permit], with.a permit that expires in six
months, or has a 30 -.90 day rule as part of the permit. (Transcript, Volume II, Page 223,
line 19, through Page 224, line 24)
On questioning by the Hearing Officer, re-cross examination and re-direct examination,
Mr. Karmelich testified that there are instances where guests do not remove their
belongings from the rooms when they check out every 28 days. (Transcript, Volume II,
Page 228, line 24, through Page 232, line 17)
Najee Williams, manager of the Lincoln Inn from about October 2000, testified he has
been working hard with Code E~ff'orcement and the Police Department to clean up
problems at the Lincoln Inn. He further testified that the City is not considering the
social impact of closing the Lincoln Inn and that there is a negatlve impa~t on &ilclren ~ncl
seniors from the 30-90 day rule. (Transcript, Volume I, Page 24, line 24, through Page
27, line 1.)
Mr. Williams further testified that comparing the Lincoln Inn to the Rainbow Inn, Covered
Wagon and Silver Moon would be hirer than comparing the Lincoln Inn with the Comfort
Inn, the Travelodge, the Ramada and Parkway as they are part of chains.(Transcript,
Volume II, Page 236, line 11, through Page 237, line 9)
Page 12 of 19
58.
59.
60.
61.
62.
63.
On cross examination, Mr. Williams testified that, since October 2000 when he was lfired
as the manager of the Lincoln Inn, a majority of the tenants have been there more than 30
days in a 90 day period. (Transcript, Volume II, Page 241, line 16, through Page 242, line
4)
On cross examination, Mr. Williams further testified that the Anaheim Police were at the
Lincoln Inn in March 2001 to investigate a possible methamphetamine lab, that a
functional lab was not found but chemicals for the manufacture of methamphetamine were
found. (Transcript, Volume II, Page 247, line 9, through Page 248, line 3)
On re-direct examination, 1Vh'. Williams testified to the tenant mix at the Lincoln Im~ as
follows'
There are about 105 of 117 rooms rented.
bo
About 80 pe. rcent is occupied with families with children from a few months to
15,16,17 years of age.
Co
They are low income individuals.
d,
They are about half Caucasian, half Hispanic with a few Filipino and Black.
(Transcript, Volume II, Page 248, line 10, through Page 249, line 2)
Andrea Williams, guest at the Lincoln Inn, testified about her concern over the 30-90 day
role and the effect its enforcement would have on her children. She further testified she
can't afford a deposit for an apartment. (Transcript, Volume I, Page 27, line 6, through
Page 28, line 11)
Jim Mattio, pastor of Calvary Christian Fellowship, testified that his Fellowship holds
services and Bible studies in the Lincoln Inn's cormuunity room. He further testified that
the Lincoln Inn has become a community and how enforcement of the 30-90 day rule will
negatively impact the guests - causing homelessness and disrupting the schooling of
children. (Transcript, Volume I, Page 21t, line 13, through Page 32, line g)
Bob Rodriguez, guest at the Lincoln Inn, testified that he has been at the Lincoln Inn for
seven years, is 66 years old and on a fixed income of $1300 a month from Social Security.
He further testified he fears the Code Inspector and being written up and that he fears
being on the street if the Lincoln Inn closes. (Transcript, Volume I, Page 32, line 14,
through Page 37, line 17)
Page 13 of 19
64.
Linda Dunlap of Project Dignity testified that she works in the field with low income
families in motels and has known Ben Karmlich for two years, that he is better than the
owners of other motels and that he has let her organization park its medical van at the
Lincoln Inn when it is no being used elsewhere. She further testified on the negative
impact on schooling of children from the 30-90 day rule and on the fear of tenants from
the inspections. (Transcript, Volume I, Page 38, line 3 through Page 40, line 4)
65.
Paula Santos, guest with two children at the Lincoln Inn, testified that mothers need the
microwave to warm baby bottles and that her 16 year old is two years behind in school
from moving every 28 days. (Transcript, Volume I, Page 40, line 7 through Page 41, line
~7)
66.
Gina Hall, guest with her husband at the Lincoln Inn, testified that Ben Karmelich cares,
that the 30 - 90 day role is hard in children, and that microwaves are needed to warm
food. (Transcript, Volume I, Page 41, line 22, through Page 43, line 7)
67.
Robert Spirko, guest at the Lincoln Inn, testified that he and his wife and son have stayed
in many motels and that the Lincoln Inn is better than the others. He further testified that
his son has been in three different schools, that the son now attends Albert Schweitzer
Elementary School around the corner and that he is doing better because oft he tutoring at
the Lincoln Inn. He further testified that microwaves allow the preparation of balanced
meals, that the security at the Lincoln Inn is fine and that the children shouldn't have to
worry about moving because of the 30-90 day role. (Transcript, Volume I, Page 44, line 1,
through Page 47, line 25)
68.
Kathleen Huntington, guest at the Lincoln Inn, testified that she and her daughter who has
two children live at the Lincoln Inn and that she provides day care for her daughter. She
further testified against the 30 - 90 day role and had her grandchildren state they didn't
want to move. (Transcript, Volume I, Page 48, line 3, through Page 49, line 16)
69.
Cornelia Vennell, guest at the Lincoln Inn, testified she has lived there 10 years, is on a
fixed income and that is all she can afford. (Transcript, Volume I, Page 49, line 21,
through Page 51, line 12)
70.
Anne Dowen, guest at the Lincoln Inn, testified she lives there with her husband and eight
year old daughter and is five months pregnant and on disability. She further testified that
they have lived in seven motels in nine months and that, because of the problem of
changing schools, she home schools her daughter since she has a degree. She further
testified that allowing guests to cook in their rooms is better than 39 cent hamburgers.
(Transcript, Volume I, Page 51, line 22, through Page 55, line 8)
71.
James Murray, a motel owner, testified against the 30 - 90 day role. (Transcript, Volume
I, Page 55, line 11, through Page 56, line 5)
Page 14 of 19
72.
73.
74.
75.
76.
77.
78.
79.
Melissa Hodge, guest and employee at the Lincoln Inn, testified that she's proud to live
and work at the Lincoln Inn. (Transcript, Volume I, Page 56, line 7, through Page 57,
line 1)
Linda French Van Voorhueen, guest at the Lincoln Inn, testified that she lives there with
her daughter, that she couldn't move every 28 days without her daughter as she is in a.
wheelchair and that Ben is doing a good job. (Transcript, Volume I, Page 57, line 3,
through Page 58, line 18)
Robert Armstrong, guest at the Lincoln Inn, testified that he lives there with his wife and
two boys, that the 30-90 day rule is a hardslfip on families trying to better themselves and
that he has the "impression that the City of Anaheim doesn't care about low income
people". (Transcript, Volume I, Page 58, line 2I, through Page 61, line 4)
Jennifer Cameron, guest at the Lincoln Inn, testified that she lives there with her husband
and twin boys, that they can't afford other housing, that she needs the microwave to heat
bottles for he one year old twins and that the Lincoln Inn is a safe clean motel.
(Transcript, Volume I, Page 61, line 7, through Page 65, line 16)
Robin Keller, guest at the Lincoln Inn, testified that she lives there with her husband and
baby and that the Lincoln Inn is like a little community. (Transcript, Volume I, Page 65,
line 18, through Page 67, line 3)
Judy Martinez, guest at the Lincoln Inn, testified that she lives there with her husband and
children, that she tried to find an apartment for five months with a housing voucher and
that this is their home until they can get their lives together. (Transcript, Volume I, Page
68, line 24, through Page 70, line 25)
Jodi Armstrong, guest at the Lincoln Inn, testified she lives there with her husband and
two boys, that her ten year old has had two open heart surgeries, that the Lincoln Inn is a
safe tightknit community and that the school and Orange County Children Social Services
doesn't bother them there. (Transcript, Volume I, Page 71, line 3, through Page 73, line
The Closing Brief for the Appellant, Ben Karmelich, owner of the Lincoln Inn, 'requests
that Conditional Use Permit No. 1043 be reinstated for a period of not tess than 10 years
and that the 30-90 rule be deleted. In his testimony, Appellant, Ben Karmelich, also
requested deletion of the no cooking appliance rule and modification of the security rule to
require one guard rather than two. See Finding 50. Since these requests were not
included in Appellant's Closing Brief, they will be considered abandoned.
Page 15 of 19
80.
81.
82.
83.
84.
85.
The City of Anaheim's Closing Brief argues that there is substantial evidence to uphold
the Planning Cormnission's decision to not reinstate Conditional Use Permit No. 1043
which is the Lincoln Inn's permit to operate. It should be noted that City's witness, Don
Yourstone, testified that the objective of the City's Code enforcement efforts was to bring
the Lincoln Inn into compliance and not shut it down. See Finding 37. This Hearing
Officer believes the City of Anaheim's position is best represented by its Closing Brief
prepared by its City Attorney's Office.
Since the request to delete the 30-90 day rule will be moot if Conditional Use Permit No.
1043 is not reinstated; reinstatement will be addressed first.
As noted in Finding 27, the burden of proof is on the Appellant to present evidence to
establish the necessary findings under Section 18.03.093, CONDITIONAL USE
PERMITS OR VARIANCE APPROVED WITH TIME LIMITATIONS, of the Anaheim
Municipal Code which incorporates the provisions of Section 18.03.030, CONDITIONAL
USE PERMITS (C.U.P.' s) - GENERAL, of the Anaheim Municipal Code.
The first finding under Section 18.03.093 requires the Appellant to present evidence to
support the all the findings for issuance of a conditional use permit. (Judicially Noticed
Document IH, Subsection 8.03.093.041)
For a conditional use permit to be issued, .Subsection 18.03.030.031 requires that "the
proposed use is properly one for which a conditional use permit is authorized by this code,
or is not listed as a permitted use." This requirement is satisfied by David See's
testimony. See Finding 30.
There is little or no evidence in the record on the other requirements for issuance of a
conditional use permit. Specifically, the following'
".032 That the proposed use will not adversely affect the adjoining land uses and
the growth and development of the area in which it is proposed to be located;
.033 That the size and shape of the site proposed for the use is adequate to allow
the full development of propogecl uge in a manner not detrimental to the particular
area nor to the peace, health, safety and general welfare;
.034 That the traffic generated by the proposed use will not impose an undue
burden upon the streets and highways designed and improved to carry the traffic in
the area;
.035 That the granting of the conditional use permits under the conditions
imposed, if any, will not be detrimental to the peace, health, safety and general
welfare of the citizens of the City of Anaheim."
Page 16 of 19
86.
87.
88.
As to Subsection 18.03.030.032, the only evidence in the record is the letter to David See
from John Schwartz, City Exhibit 10, which was admitted for the limited purpose of
showing that Mr. Schwartz was opposed to reinstatement. Since his business or residence
is listed as 2731 Lincoln Avenue, it can be reasonably inferred that he believes that there is
an adverse affect on adjoining land uses.
As to Subsection 18.03.030.033, there is no specific evidence in the record. Since the
proposed use has been fully developed for many years, it is reasonable to infer that the size
and shape of the site is adequate for the proposed use.
As to Subsection 18.03.030.034, there is no specific evidence in the record. However, the
photographs in City Exhibit 22 show there is a divided multiple lane road in front of the
Lincoln Inn. Considering the road and the fact that there only 100 parking spaces at the
Lincoln, it is reasonable to infer that the proposed use would not cause an undue traffic
burden.
89.
90.
91.
92.
As to Subsection 18.03.030.035, there is no specific evidence in the record.
The second finding under Section 18.03.093 requires the Appellant to present evidence to
establish that Conditional Use Permit No. 1043 is "being exercised in the same manner and
in conformance with all the conditions and stipulations originally approved". Tkis Hearing
Officer believes "originally approved,' must be interpreted to include subsequent
amendments to the conditions of approval. This is the heart of the instant case.
It is clear from the record that there is substantial evidence to show that Conditional Use
Permit No. 1043 is no___[t being exercised in conformance with the conditions of' approval.
Specifically, Condition Nos. 3, 8, I3 and 18, which provide:
ao
Condition No. 3 - Appliances for the heating and preparation of food shall not be
permitted in guest rooms.
bo
Condition No. 8 - Every occupied room shall be provided with daily maid servicc.
Condition No. 13 - Maintain the premises free of Code violationg.
do
Condition No. 18 - 30-90 day role.
The third finding under Section 18.03.093 requires the Appellant to present evidence to
establish that Conditional Use Permit No. 1043 is "being exercised in a manner not
detrimental to the particular area and surrounding land uses, nor to the public peace,
health, safety and general welfare." The Appellant has not carried its burden of proof to
establish this finding. The evidence in the record indicates the contrary.
Page 17 of 19
93.
The operation of the Lincoln Inn as housing of last resort for low income persons has
resulted in such persons residing in substandard housing. Considering that families of four
are living in 3 95 square feet motel rooms when the minimum square footage for a studio
apartment is 550 square feet, leads to an inference of overcrowding which is detrimental
to the public peace, health, safety and general welfare. Likewise, families living in housing
with substantial Code violations. It should be noted that interior Code violations have
been abated at this time but exterior violations continue to exist. See Finding 3 8.
94.
The City presented statistical evidence of police activity at the Lincoln Im~ but such
evidence was not received into evidence for the reasons stated in Finding 23.
95.
The only direct evidence on crime at the Lincoln Inn in the record is the investigation of a
methamphetamine lab in one of the rooms. See Finding 59.
96.
The fourth finding under Section 18.03.093 requires the Appellant to present evidence to
establish that the deletion of the time limit is necessary to permit reasonable operation
under Conditional Use Permit No. 1043. Appellant has presented substantial evidence to
support this finding. See Finding 54.
97.
For the reasons set forth in Findings 85 through 96, Appellant has not carried its burden of
establishing all of the findings under Section 18.03.093 of the Anaheim Municipal Code
for extension, modification or deletion of the time limitation on Conditional Use Permit
No. 1043.
98.
Since the findings for reinstatement of Conditional Use Permit No. 1043 were not met, the
issue of deleting the 30-90 day role is moot.
99.
It should be noted that not reinstating Conditional Use Permit No. 1043 eliminates its
permit to operate, the effect of which is to shut it down. Shutting down the Lincoln Inn
will have a significant adverse impact on the tenants of the Lincoln Inn as this Hearing
Officer believes the testimony of the tenants that this is housing of last resort for them.
However, tltis is a policy matter to be addressed that is not within the authority of this
Hearing Officer.
RECO~ENDATIONS
Based on the foregoing Findings of Fact and evidence, the Hearing Officer recommends that the
City Council deny the appeal and uphold the Planning Conunission's decision to not reinstate
Conditional Use Permit No. 1043. Under Anah.eim Municipal Code Section 18.03.093, the
Page 18 of 19
burden of proof is on the Appellant to establish evidence to satisfy the findings set forth in
Subsections I8.03.093.041, 18.03.093.042, 18.03.093.043 and 18.03.093.044. Appellant failed
to satisfy said burden.
Respectfully submitted thislst day of August 2001.
Victor J. Kaleta
Hearing Officer
Page 19 of 19