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98-138 RESOLUTION NO. 98R-138 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM AMENDING CERTAIN CONDITIONS OF APPROVAL OF RESOLUTION NO. PC94-41, AS AMENDED BY RESOLUTION NO. PC94-103 AND ADOPTED IN CONNECTION WITH CONDITIONAL USE PERMIT NO. 3662 WHEREAS, on March 21, 1994, the Planning Commission of the City of Anaheim adopted its Resolution No. PC94-41 approving Conditional Use Permit No. 3662 ("CUP 3662") to authorize and permit a three-unit two story commercial complex consisting of a commercial office building, a 4,416 square foot private educational facility (pre-school to third grade), and a 4,372 square foot church, on three parcels of property, with a waiver of minimum landscaped setback adjacent to a residential zone boundary; and WHEREAS, the petitioner subsequently submitted a revised site plan (Revision No. 1 of Exhibit No.1) and, on August 8, 1994, the Planning Commission adopted its Resolution No. PC94-103 amending said CUP 3662, and amended and restated the conditions of approval as theretofore set forth in Resolution No. PC94-41, to permit a three-unit, two-story, 18,048 square foot commercial complex consisting of an 8,240 square foot office, a 5,392 square foot church, and a 4,416 square foot private school (pre-school to third grade), with waivers of maximum fence height, minimum setback of institutional uses adjacent to a residential zone boundary and minimum structural setback abutting a Scenic Expressway (the "Project"); and WHEREAS, the petitioner subsequently submitted modified plans to increase the church square footage to 7,232 square feet, to reduce the office building to 5,490 square feet, and to reduce the number of off-street parking spaces from 82 to 79 (the "modified plans"); and WHEREAS, on June 9, 1997, the Planning Commission determined that the modified plans were in substantial conformance with the previously approved plans for the Project with the exception that, any proposed playground equipment in conjunction with the private school would require a further revised plan to be submitted to the Planning Commission for review and approval; and WHEREAS, on July 8, 1997, the City Council also determined that the modified plans were in substantial conformance with the previously approved plans for the Project subject to the further review of the location of the playground equipment for the private school; and 1 WHEREAS, the petitioner, Doug Browne, on behalf of the owner of the school parcel, has heretofore requested approval of the location of the playground equipment for the private school; and WHEREAS, the Planning Commission did review said further modified plans regarding the location of the playground equipment at its meeting on March 30, 1998, and, due to concerns by the public expressed at that time relating to (i) possible misrepresentations by the petitioner as to the necessary heights and the number of habitable stories of the buildings, and (ii) possible modifications or additions to the existing conditions of CUP 3662 which may be necessary to protect the public peace, health, safety or general welfare, did continue said matter until its meeting on April 13, 1998, and further did cause notice of a public hearing to be given pursuant to the provisions of Section 18.03.091 of the Anaheim Municipal Code to consider the possible modification or revocation of CUP 3662 for the reasons hereinabove set forth; and WHEREAS, on April 13, 1998, the Planning Commission did hold a public hearing to hear and consider evidence relating to the possible modification or revocation of CUP 3662 and, after hearing and considering all evidence presented, did adopt its Resolution No. PC98-56 modifying CUP 3662 by amending the conditions of approval of CUP 3662 as theretofore adopted by Resolution No. PC94-41, and amended and restated by Resolution No. PC94-103; and WHEREAS, thereafter, within the time permitted by law and in accordance with the appeal and review procedures set forth in Section 18.03.080 et seq. of the Anaheim Municipal Code, the requisite number of City Council members caused the review of the aforesaid decision of the Planning Commission at a duly noticed public hearing; and WHEREAS, on May 12, 1998, and continued to May 19, 1998, June 2, 1998, June 16, 1998, and June 23, 1998, the City Council did hold and conduct said public hearing, and did receive evidence, reports and testimony concerning the possible modification or revocation of CUP 3662; and WHEREAS, after careful consideration of all of the evidence, reports and testimony presented at said public hearing, the City Council does hereby find and determine as follows: 1. The approval of CUP 3662 was obtained by fraud of the petitioner based upon the following facts: (a) The petitioner, Mr. Doug Browne, at all times during the permit process in 1994 represented that he was seeking 2 approval for the construction and use of three two-story buildings. (b) The three buildings as constructed are In actuality three-story buildings. (c) At the Planning Commission public hearing held on March 7, 1994, at which time the petitioner was seeking the approval of CUP 3662, the Planning Commission expressed its concern regarding the proposed 35 foot height of the three buildings and inquired of the petitioner as to whether such height could be reduced. In response, the petitioner affirmatively represented to the Planning Commission that the upper nine feet of the proposed 35 foot height of the three buildings was necessary to accommodate and service the HVAC and other necessary equipment which was proposed to be located on a third (attic) level of each building rather than locating such equipment on the roofs of the buildings or on the ground outside the buildings. (Planning Commission Minutes, March 7, 1994, pages 10-11.) (d) The petitioner constructed, or was responsible for the construction of, the Project and of all three buildings. Petitioner did not locate all of the HVAC equipment on the third levels of the buildings but located some of the HVAC on the ground outside of the three buildings. (e) On or about June 12, 1998, at the request of the City, and as part of the City Council public hearing to consider modification or revocation of CUP 3662, the petitioner caused to be prepared and submitted to the City a proposed architectural rendering showing how the height of the three buildings could be lowered to a height of 32 feet and the roof redesigned in a manner more consistent with the architecture of the surrounding property and neighborhood while still accommodating the existing HVAC and other necessary equipment on the third level of each building. (Exhibit 7, City Council meeting of June 23, 1998.) (f) Petitioner could have proposed such a lowered and more esthetically compatable height and roof design of the three buildings similar to that depicted on said Exhibit 7 In response to the Planning Commission'S stated concerns and questions at the public hearing on March 7, 1994. (g) Petitioner, however, misled the Planning Commission and the City into believing that no lower building height was feasible due to the space required to meet the Planning Commission'S desire to accommodate the HVAC and other necessary equipment within the third (attic) level of each of the three buildings. Said representation was false, and was known to petitioner to be false, and was made for the purpose of 3 creating a usable third story in each building which third story could be used, or marketed to potential purchasers or lessees, or lead potential purchasers or lessees to believe that the third story of each building could be used or occupied as either habitable area or storage space when, in fact, said areas had been approved by the City solely as attic areas for the enclosure of the HVAC and other necessary equipment. (h) their intention and building. Current owners of the building have indicated desire to use the third floor of the (i) petitioner sold the buildings on the representation that the third floor could be occupied. 2. Modification of the height of the buildings in accordance with Exhibit No. 7 is necessary to protect the public peace, health, safety or general welfare for the following reasons: (a) The Project is surrounded by single-family residential homes on the north, south and west and the Anaheim Hills Shopping Village on the east. (b) The current height of each of the three buildings which compose the Project is approximately 35 feet which greatly exceeds the height of any of the surrounding single-family homes. (c) The current height and roof design of each building in the Project is dissimilar to, and grossly out of character with, the height and design of the surrounding single- family homes. (d) The current height and roof design of each building in the Project adversely affects the value of the surrounding single-family homes. (e) The current height and roof design of each building in the Project adversely affects the quiet enjoyment of the residents of the surrounding single-family homes. (f) The third floor of each building has been constructed in a manner which would permit occupancy with minimal modifications and without notice to city enforcement officials. Restrictive covenants would be ineffective to prevent current occupants or potential purchasers or lessees from occupying the third floor and enforcement would require constant inspection and observation. (g) The ease in which the third floor of each building could be occupied, the strong potential that current 4 occupants and potential future purchasers and lessees would use the third floor area for storage and other uses, and the difficulty of enforcing the restriction not to use the third floor area requires the need to physically reduce the height of the third floor in order to remove the availability of the third floor space. (h) Use of the third floor increases useable floor area of the building changing the parking requirements and requiring additional building code standards be applied. Use of the third floor would result in an overuse of the buildings and of the parcels. 3. Modification of the private school's permitted operating hours, playground hours, activities and location, balcony ingress and egress, and maximum permitted enrollment are necessary to protect the public peace, health, safety or general welfare for the following reasons: (a) The proposed private school will be located on one of the three parcels of the Project and will be adjacent to properties zoned for and used as single-family homes on the north, south and west of the Project. (b) The proposed private school will involve 93 children (pre-school through third grade) who will require adult transportation to and from the school daily. The noise which will be generated from the arrival and departure of the vehicles transporting the children will be heard by the residents in the surrounding homes. (c) The proposed private school will involve daily playground activities by young children who can reasonably be expected to demonstrate normal youthful exuberance during such periods of outdoor play. (d) Limiting the hours of operation and the hours, location, maximum number of participants in playground activities at one time, and playground accessways is reasonably necessary to protect the peace and quiet enjoyment of the surrounding residents in the single-family homes. 4. Modification of the building colors and the planting of additional view screening vegetation (broadleaf trees) is reasonably necessary to protect the public peace, health, safety or general welfare for the following reasons: (a) The three existing buildings of the Project have not as yet been painted in their finished color scheme. Requiring City review and approval of the final color scheme of the three buildings due to the massive size and height of the three buildings will assure that such building colors are 5 compatible with the colors of surrounding structures and minimize the detrimental effects such buildings may have on the value and enjoyment of the homes in the surrounding area. (b) Requiring additional landscaping in the form of view screening broadleaf trees will mitigate the adverse effects such massive buildings may have on the value and enjoyment of the homes in the surrounding area. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim that, for the reasons set forth in Findings of Fact Nos. 1 and 2 above, Condition No. 11 of CUP 3662, as heretofore adopted by Resolution No. PC94-56, as amended and restated by Resolution No. PC94-103, is hereby amended to read as follows: U11. That subject property shall be developed substantially in accordance with plans and specifications submitted to the City of Anaheim by the petititioner and which plans are on file with the Planning Department marked Revision No. 1 of Exhibit No.1 and Exhibit Nos. 2 through 6, except that the height, roof lines and design of the three buildings on the property shall be modified, reconstructed and maintained (the "Roof Modifications") substantially in conformance with Exhibit No.7 approved by the City Council on June 23, 1998, and on file in the Planning Department and as follows: (a) Final plans and drawings for the Roof Modifications (including color and materials samples) (the "Final Roof Plans") shall be submitted to the Planning Department not later than July 31, 1998, for review and approval by the Planning Commission as a UReports and Recommendations" agenda item at a public meeting. (b) Not later than thirty (30) days following the approval of the Final Roof Plans as to conformance with Exhibit No.7, the property owner of each building shall obtain building permits from the City and commence construction of the Roof Modifications. (c) The Roof Modifications for each building shall be diligently pursued to completion provided said Roof Modifications shall be completed and the property owner of each building shall obtain final building and zoning inspections and approvals for each building not later than ninety (90) days following the date of issuance of the building permit for each such building. (d) A final certificate of occupancy for each building shall be issued by the Building Division following final building and zoning inspections and approvals for each building. A temporary certificate of occupancy may be 6 issued, renewed, or reissued by the Building Division for each building prior to final building and zoning inspections provided (i) such a certificate is otherwise permitted pursuant to the Anaheim Building Code and (ii) the owner of the building is either in compliance with the conditions and requirements of this Conditional Use Permit or has commenced litigation for which no final judgment has yet been entered concerning the validity of any provision of this resolution. (e) The time limits set forth in subsections (b) and (c) of this condition may be extended by the Planning Director for good cause shown, provided that the total extension of time by the Planning Director for compliance with subsection (b) shall not exceed 14 days and the total extension of time by the Planning Director for compliance with subsection (c) shall not exceed 30 days. (f) Except as set forth in subsection (e) above, the time limits set forth in this condition shall not be extended or amended except following a duly noticed public hearing amending this condition in accordance with the procedures otherwise set forth in Chapter 18.03 of the Anaheim Municipal Code." BE IT FURTHER RESOLVED that, for the reasons set forth in Findings of Fact NO.3 and 4 above, new Condition Nos. 17 through 31, inclusive, are hereby added to CUP 3662, and Resolution No. PC94-41, as amended by Resolution No. PC94-103, are amended by the addition of said new conditions, to read as follows: "17. That on or before July 31, 1998, the property owner shall submit a letter requesting termination of Conditional Use Permit No. 3701 (permitting a child day care facility in two temporary trailers with waiver of minimum structural setback from a Scenic Expressway) to the Zoning Division. 18. That on or before July 31, 1998, a comprehensive sign program including address numbers shall be submitted to the Zoning Division for review and approval by the Planning Commission as a "Reports and Recommendations" agenda item. All signage shall be maintained in conformance with the approved sign program. The existing Montessori school sign shall not be illuminated prior to approval of the sign program and said sign shall be removed and replaced as part of, and in conformance to, the approved sign program. 19. That the school operating hours shall be limited to Monday through Friday from 7 a.m. to 6:30 p.m. 7 20. That the maximum enrollment of children, infants through third grade, shall not exceed ninety-three (93) students. 21. That the use of the outdoor playground area shall be limited to 8:00 a.m. to 6:00 p.m. and the total number of children on the outdoor playground at anyone time shall not exceed 24 in the west playground and 50 overall. 22. That use of the attic area (third level) of each building shall be restricted to mechanical equipment associated with the underlying building(s) only; access to this attic area shall be provided by ladder only and stairway access to this area shall not be permitted nor constructed at any time in the future. 23. That 24-inch box broadleafed trees with root barriers shall be planted and maintained twenty feet on-center adjacent to the west property line. The existing Italian Cypress trees shall also be maintained on 28-inch centers except for the locations of said 24-inch broadleafed trees adjacent to the west property line. 24. Deleted. 25. That a plan specifying the color scheme (together with color samples) for a painted finish for the three buildings shall be submitted to the Planning Department not later than July 31, 1998, for review and approval by the Planning Commission as a "Reports and Recommendations" agenda item at a public meeting. The buildings shall be painted or finished in accordance with the approved color scheme prior to issuance of a final certificate of occupancy for any of such buildings. The exterior finish of each building shall be maintained in accordance with the approved color scheme. 26. That, on the school parcel, the south facing balcony and the doors leading to it shall be restricted to emergency exiting use only. 27. That the block wall at the westerly property line shall not be utilized as a playing surface for ball games or other outdoor activities. 28. That on or before September 1, 1998, the property owner(s) shall submit covenants to the Zoning Division, for review and approval by the City Attorney, which covenants shall bind future owners of the properties to the obligations set forth in the conditions of this conditional use permit. Said covenants shall be recorded in the Office of the County Recorder as to each parcel prior to issuance of a final certificate of occupancy for such parcel but in no event later than October 15, 1998. 8 29. That all conditions contained in this resolution shall be complied with prior to issuance of the first final certificate of occupancy issued by the City for any of the buildings. 30. That any decision of the Planning Commission which is required or permitted by any condition of this Conditional Use Permit as a "Report and Recommendation Item" shall be subject to appeal to or review by the City Council in the same time and manner otherwise specified for the appeal or review of Planning Commission decisions as set forth in Section 18.03.080 et seq. of the Anaheim Municipal Code except that any such appeal or review shall be held at a public meeting without the formal requirement of a public hearing. 31. That, on the school parcel, the children's play yard shall be set back a minimum of 15 feet from the west property line provided said 15 foot area may be used for storage purposes, and further provided that an area equal in size to the reduction in the play yard caused by such setback may be added to the play area subject to approval of the location of such added area by the Planning Commission as a Report and Recommendation Item." BE IT FURTHER RESOLVED that, except as expressly amended by the provisions of this resolution, the provisions of Resolution No. PC94-41, as amended by Resolution No. PC94-103 (collectively the "Prior Resolutions") shall remain in full force and effect; and, in the event any provision of this resolution which purports to amend any provision of the Prior Resolutions is held to be invalid or unenforceable by a final judgment of any court of competent jurisdiction, the provision of the Prior Resolutions which the invalid provision had purported to amend shall remain in full force and effect. BE IT FURTHER RESOLVED that, in the event any litigation is filed challenging the validity or enforceability of this resolution or any of the provisions hereof which establishes a time limit for the performance of such provision, said time for performance shall be deemed tolled for the period from the date of service of the complaint upon the City to the date a final judgment is entered upholding the validity or enforceability of this resolution or said provision. Thereafter, the property owner or permit holder shall be allowed an equal number of days to perform said provision as were originally set forth in this resolution as measured from the date of adoption of this resolution. BE IT FURTHER RESOLVED that the time within which a rehearing must be sought is governed by the provisions of Section 1.12.100 of the Anaheim Municipal Code and the time within which 9 judicial reVlew must be sought is governed by Section 1094.6 of the Code of Civil Procedure and Section 18.02.060 of the Anaheim Municipal Code. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 23rd day of June, 1998. ~~ MAYOR OF T E CITY ANAHEIM A~TTE~ ~e{ '4 ~ CITY CLERK OF HE CITY OF ANAHEIM 0027098.01 10 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 98R-138 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 23rd day of June, 1998, by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: McCracken, Zemel, Lopez, Daly NOES: MAYOR/COUNCIL MEMBERS: Tait ABSENT: MAYOR/COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 98R-138 on the 23rd day of June, 1998. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 23rd day of June, 1998. ~7tS4- CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 98R-138 was duly passed and adopted by the City Council of the City of Anaheim on June 23rd, 1998. ~7fS~ CITY CLERK OF THE CITY OF ANAHEIM