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2002/08/20 ANAHEIM, CALIFORNIA - CITY COUNCIL MEETING AUGUST 20, 2002 The City Council of the City of Anaheim met in regular session. PRESENT: Mayor Tom Daly, Council Members: Frank Feldhaus, Lucille Kring, Tom Tait and Shirley McCracken. STAFF PRESENT: City Manager David Morgan, City Attorney Jack White, Assistant City Clerk Cynthia Daniel-Garcia, Public Works Operations Manager Doris Roush. A copy of the agenda for the meeting of the Anaheim City Council was posted on August 16, 2002 at the City Hall inside and outside bulletin boards. Mayor Pro Tem Frank Feldhaus called the regular meeting to order at 3:40 P.M. in the Council Chambers of the Anaheim City Hall, 200 South Anaheim Boulevard. WORKSHOP: Sanitation District 301 H Waiver City Manager David Morgan introduced Blake Anderson of the Orange County Sanitation District who presented information regarding the Sanitation District 301 H Waiver on a power point presentation. He said that the Sanitation Board's decision was to treat all wastewater discharges into the ocean to secondary treatment standards and he then explained the decision making process. He spoke about financial implications and regulatory requirements and explained treatment technologies. He said it would take approximately eleven years to implement the plan for secondary treatment and explained the maintenance of existing operation. It would cost $1.6 billion for other facility improvements and $270 million for secondary upgrades, he informed, and there would be considerable site challenges. He noted the rates for business and residential customers were about $38 per year and in the year 2020, would be approximately $200 per year for full secondary and $163 year for a 50/50 blend. The business rates varied accordingly to flow and strength of discharge, he noted. He spoke about other initiatives such as water reclamation, urban runoff, biosolids, recycling, local sewer infrastructure cooperative funding and source control and he added that a majority of the funding would come from state funds. ADDITIONSIDELETIONS TO CLOSED SESSION: City Attorney White announced that it was recommended that Council, by motion, find that there was a need to take immediate action, which came to the attention of the City subsequent to the posting of the Council agenda, and add one item" Council Member Feldhaus moved, seconded by Council Member Kring, to add Closed Session Item 9 to the agenda. Roll call vote: Ayes - 4, Mayor Daly and Council Members McCracken, Feldhaus and Kring. Noes - O. Abstained - 1, Council Member Tait. Motion carried. PUBLIC COMMENTS - CLOSED SESSION ITEMS: None. ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 2 Mayor Daly moved to recess to Closed Session, seconded by Council Member McCracken. Motion carried. The Council recessed to Closed Session at 4:10 P.M. 1. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Section 54956.9 of the Government Code) Name of case: Kord Group v. The Fieldstone Company, et aI., Orange County Superior Court Case No. 76-32-58. 2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Section 54956.9 of the Government Code) Name of case: City of Yorba Linda v. City of Anaheim, Orange County Superior Court Case No. 01 CC09320. 3. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Section 54956.9 of the Government Code) Name of case: In re: Ogden New York Services, Inc. et aI., U.S. Bankruptcy Court No. 02-40846-cb (SDNY). 4. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Section 54956.9 of the Government Code) Name of case: South Coast Cab Co. v. City of Anaheim, Orange County Superior Court Case No. 80-03-59. 5. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Subdivision (a) of Section 54956.9 of the Government Code) Name of case: Vista Media Group, Inc. v. City of Anaheim, Orange County Superior Court Cases Nos. 814050 and 00CC08157. 6. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION (Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9 of the Government Code) Number of potential cases: one 7. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Section 54956.8 of the Government Code) Property: 2200 E. Katella Avenue, Anaheim, California Agency negotiators: Greg Smith Negotiating parties: SMG, a partnership and the City of Anaheim Under negotiation: Price and terms ANAHEIM REDEVELOPMENT AGENCY 8. CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Section 54956.8 of the Government Code) Property: 130 S. Beach Boulevard, Anaheim, California Agency negotiators: Joel H. Fick, Elisa Stipkovich Negotiating parties: Anaheim Redevelopment Agency and Dorothy Lillian Brunson as Trustee under Revocable Trust Agreement dated January 12, 1987 Under negotiation: Price and terms ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 3 9. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION (Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9 of the Government Code) Number of potential cases: one Existing facts and circumstances: Statements of threatened litigation against the City and/or City officials made by or on behalf of the applicant for an alcoholic beverage license for the premises at 650 North Euclid Street. Such statements and threatened litigation relate to the pending decision of the City Council under Business and Professions Code Section 23958.4(b )(2). AFTER RECESS: Mayor Daly called the regular Council meeting of August 20,2002 to order at 5:15 P.M. and welcomed those in attendance. INVOCATION: Pastor Robb Ring, East Anaheim Christian Church FLAG SALUTE: Council Member McCracken 119 PROCLAMATIONS AND DECLARATIONS: Recognizing participants in the Mills Act Program. Recognitions to be presented at a later date were a proclamation recognizing September 8, 2002, as Let's Make a Difference Day, a proclamation recognizing August 24, 2002, as Fill the Boot Day and recognizing recipients of the Anaheim Chamber of Commerce 2002 Crystal Apple Awards. At 5:34 P.M., Mayor Daly recessed the City Council meeting until after the Redevelopment Agency meeting. Mayor Daly reconvened the City Council meeting at 5:45 P.M. PUBLIC COMMENTS: Judy Johnston reported that there was a homeless drug dealer in her neighborhood that had been seen occasionally sleeping with all of his belongings on a driveway. She said that she understood that it was not illegal and she asked for help in her neighborhood. Mayor Daly directed staff to follow up on the request of Ms. Johnston. James Robert Reade offered comments regarding Council Member Kring. Kathy Wright spoke about the sound wall situation with the City of Yorba Linda and she asked if the meetings had been productive. She noted that the time frame for an appeal was running out and she asked for insight into the matter. City Attorney, Jack White, indicated that progress was being made on negotiations with the City and an attempt to resolve the issue relating to construction of the soundwall. He added that the following Closed Session action was taken by the Council: Authorized ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 4 the City Attorney to file an appeal in the Case of the City of Yorba Linda vs. City of Anaheim, Orange County Superior Court Case No. 01 CC09320. Roll call vote: Ayes - 5, Mayor Daly and Council Members McCracken, Feldhaus, Tait, and Kring. Noes - O. Motion carried. City Attorney White said that this would keep the City's options open and would allow proceeding in the appellate court process and at the same time, the City was meeting and working with the attorneys and non attorneys and he said there was hope to have it resolved in the near future. Ms. Wright said that there had been the threat of a strike at the docks and the trains were running overtime, day and night. Glenda Flora spoke about the Lincoln Avenue beautification project which impacted her tract and that her tract of homes only had an entrance and exit onto Lincoln Avenue. When homes were built at Mueller and Lincoln a few years ago, Council and Public Works were helpful to the neighborhood and worked with them to allow the opportunity to have a safe left-hand turn exit out of the tract onto east bound Lincoln Avenue. She said that a safe exit had now been eliminated since the beautification. The City had created a merge lane for the neighborhood and they now proposed that the neighborhood not make a left turn, she noted. There was a wide exit at Aladdin, which was a wide entrance to the tract and was seven to eight car widths wide, she said, and was a difficult place to make a left turn. She said that the City had allowed her neighborhood to have a protected left turn lane even though it was a separate merge lane that had been created to get out into the median and then be able to merge onto east bound Lincoln Avenue and that was done out of Carol Drive. She expressed her concern about eliminating the opportunity for the neighborhood to come into Aladdin and the main entrance would be Carol Street, which was only two car widths. There was also an immediate stop sign as soon as a drive entered, she noted. She said that her neighborhood was really concerned about safety and she noted that Council had worked with the neighborhood in the past. She had contacted the Public Works Division and they commented that there was a consultant report that had covered the whole City. Mayor Daly noted that Council had a copy of Ms. Flora's correspondence and he asked the City Manager to report back to Council at the earliest opportunity, within days, as to the status of the situation and to present options. Leonard Lahtinen said he was a trustee with the North Orange County Community College District and he noted that the Anaheim Magazine had an announcement that the new college was opening in January. He explained that the new college was the former Martin Luther Hospital building, which the District had been renovating for over a year. He informed Council that the first staff members moved into the Anaheim Campus of the North Orange County Community College District and District information was on the Mezanine level in the building. He added that the complete District offices would be in the building in September 2002. David Lake said that people cut the corner of Romneya and Edison School and there was a fence there. O' ,. '~"'d ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 5 Mayor Daly said that Council had heard Mr. Lake's questions expressed earlier and the City Manager and Traffic Engineer had been asked to look at the situation. He was asked to look at the changes recommended by Mr. Lake, which was an additional stop sign. Mr. Lake stated that there were children playing in that area and people cut through going 40 miles per hour. He said that the yield sign was a waste of time. City Manager Morgan said he would report back to Council next week since the analysis was underway. Mayor Daly asked if Mr. Lake had been in contact with John Lower or any other staff members and Mr. Lake responded that he had and that he had the Police Department look at it. Mayor Daly said that the Police Department would be included in the report. Mr. Lake asked for more police in his area and asked that the speeders be slowed down. Mayor Daly asked that when the analysis on the stop sign was completed, Mr. Lake be given a chance to see the analysis. Carolyn A. Kelt said that her home bordered the Burlington Northern Santa Fe Railroad and was at the east end of La Palma Avenue and Weir Canyon Road. She said that the closest grate crossing was at Imperial Highway, and two and one-half miles to the west, she and her neighbors had been subjected to increased freight whistles. The whistle blowing started approximately two-years ago when the railroad started parking westbound trains behind Weir Canyon Honda, she informed. The engineers used the horns at all hours of the day and night as a means of signalizing the waiting trains that were sitting and idling, she said. In prior years, she noted, the railroad parked the trains further east in the Canyon along Savi Ranch Industrial Park and her neighborhood did not have to endure any whistle blowing. Ms. Kelt said that she and her neighbors had contacted the railroad and the complaints were usually met with the same answer, which was that the engineers were using the horns because someone was on or near the tracks. She said that living along that rail corridor as long as she had, she knew the difference and the engineers really lay on the horn when someone was around there and the neighborhood was being subjected to little short blasts and they were doing it directly behind the homes as they approach the trains that idle there. The railroad's new parking lot happened to be the site that Yorba Linda had selected for the proposed Metrolink station. She noted that approximately 65 trains traveled along that main corridor each day and if the railroad was allowed to build the third track, it would increase to 120 or more trains. The engineers were blowing their horns now because they were approaching parked trains and if Yorba Linda proceeded with building the Metrolink station at New River and Esperanza Road, it meant that every train approaching the station would blow their horns behind the homes, she added, since they would anticipate someone standing on the platform, whether someone was there or not. During the public hearing last February, she informed, Yorba Linda sound consultant admitted that his noise study was conducted at the Irvine Metrolink station and did not include freight train noise measurements. The sound study was flawed since the proposed station would be constructed along the Burlington, Northern, Santa Fe main line. She said that the Yorba Linda Council recognized that and asked that their staff prepare an environmental impact report. She said she understood that Yorba Linda had based part ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 6 of the legal challenge for the noise and aesthetic impacts of the Anaheim soundwall environmental impact report, based on information on the same consulting firm. She said she was told that the same consultant recommended that the soundwall be reduced in height by ten feet and she asked that the City work with the railroad and do something about parking the trains further east in the canyon. She asked if there could also be a "no horn" established in the area. Mayor Daly asked if there was anything that the City could do to control the blowing of whistles by train engineers and he noted that the City of Placentia had been battling this along the same route. He said Anaheim had joined Placentia to try to control the matter and he asked for a comment from the City Attorney on the legal ability of cities to control what the train industry did. City Attorney White said that the matter of train whistles was governed by federal statute that placed the blowing of whistles in the hands of the train engineers at their sole discretion. It did not give the cities the power to regulate or prohibit the blowing of whistles but as a matter of public safety, allowed the engineers to use their own discretion, he informed. Some cities had some success by either installing grade separations or paying for gating of railroad crossings and therefore being able to reduce the whistles that were sounded since the engineers were apparently less inclined to blow the whistles or prolong the whistles if there was a grade separation or a gate at the railroad crossing, he said. For several years, he said Placentia had a "gentleman's agreement" with the railroad about not blowing the whistles in an area of Placentia. That changed within the last year, he noted, and the railroads started blowing the whistles because the federal statute gave that jurisdiction to the engineers. He said that the City could try to do things to ameliorate the problem and make it less likely that whistles would be blown, cities across the country did not have the discretion to prohibit the blowing of train whistles. Mayor Daly suggested, since this was primarily under the jurisdiction of U.S. Congress, which regulated the railroad industry, that the Congressman who represented the area get involved and help Anaheim and the residents in that impacted neighborhood to try to limit the problem. He said that the City was involved with the Placentia situation, which was down the tracks and he said he would keep the neighborhood informed. Leslie Daigle spoke on behalf of Verizon Wireless said she had discovered that the Verizon matter (Item A36) had been placed on the agenda. She said that Public Works had placed the matter on the agenda without realizing that notice and opportunity to be heard was required and Verizon was requesting a continuance to October 15, 2002. Will B. King spoke about conflicts of interest and the County of Orange Clerk Recorder position. Steve Moreford spoke about the soundwall and the fight against the City of Yorba Linda and their attempt to stop the sound wall. He said it was ruining the quality of his life and he asked that Council continue to support the resident's fight with the City of Yorba Linda. ADDITIONSIDELETIONS TO THE AGENDA: None ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 7 MOTION: Mayor Daly moved to waive reading in full of all ordinances and resolutions, seconded by Council Member McCracken. Motion carried unanimously. CITY MANAGER/DEPARTMENTAL CONSENT CALENDAR A1 - A35: On motion by Mayor Daly, seconded by Council Member Kring, the following items were approved in accordance with the reports, certifications and recommendations furnished each Council Member and as listed on the Consent Calendar. Item A4 continued to August 27,2002 and Council Member Tait abstained on Item A32. Mayor Daly offered Resolutions Nos. 2002R-189 through 2002R-190 for adoption. Motion carried unanimously. 105 A1. A2. 169 169 A3. A4. 166 Receive and file minutes of the Park and Recreation Commission meetings held May 22, 2002 and June 26, 2002; minutes of the Golf Advisory Commission meeting held June 27,2002; and minutes of the Public Utilities Board meeting held July 11, 2002; Award the contract to the lowest responsible bidder, R. J. Noble Company, in the amount of $463,865.80, for the Tustin Avenue Project between Miraloma Avenue to La Palma Avenue and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. Award the contract to the lowest responsible bidder, R. J. Noble Company, in the amount of $236,050.90, for the Euclid Street Project between Medical Center Drive and La Palma Avenue and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. Award the contract to the lowest responsible bidder, Steiny & Company, in the amount of $621,275, for changeable message signs at various locations on Katella Avenue, Ball Road and Anaheim Way and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. Mayor Daly asked for clarification on the exact location of the signs and how many would be installed. City Manager Morgan stated that there would be three new signs and the first one would be located on Ball Road, east of State College Boulevard; the second would be located on Katella Avenue, west of Lewis Street and the third was on Anaheim Way, south of Katella Avenue. He said that Council had raised concerns about the sign some months ago and staff had redesigned them to be less obtrusive and the design had been improved. Mayor Daly asked for the opportunity to spend more time with staff on the precise locations of the signs and the proposed design, before Council approved the final contract. He said he was concerned because these were large signs and at times they could be important to manage traffic around the Resort area and if the recommendation was to install signs outside of the Resort area, such as at Ball Road and State College Boulevard, he asked that Council look at the design and how large it was and the necessity for a sign there. Mayor Daly moved, seconded by Council Member Tait, to continue Item A4 to 169 169 169 175 150 105 123 123 123 123 . ........., ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 8 August 27, 2002. Motion carried unanimously. A5. Award the contract to the lowest responsible bidder, All American Asphalt, in the amount of $416,662.80, for the Lewis Street Improvements from Ball Road to Katella Avenue and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. A6. Award the contract to the lowest responsible bidder, All American Asphalt, in the amount of $127,656.35, for the Orange Avenue Street Improvements from Beach Boulevard to Western Avenue and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. A7. Award the contract to the lowest responsible bidder, Ben's Asphalt, Inc., in the amount of $215,686.89, for the La Palma Avenue Project between Tustin Avenue to Grove Street and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. A8. Award the contract to the lowest responsible bidder, J. Fletcher Creamer & Sons, Inc., in the amount of $698,946, for the West Street Water Main Replacement Project and approve and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. A9. Approve and authorize the Director of Public Works to execute Change Order No.1 in favor of Channel Island Paving, Inc, in the amount of $161,967.58, for the Anaheim West Skate Park Improvement and appropriate $161,967.58 in funding from the Improvements Fund (203) into Program 4721. Council Member Feldhaus noted that there would be a dedication hearing at Brookhurst Park within the next month. The next one would be in Anaheim hills and then the larger park in the downtown Anaheim area would allow the children to practice for national competition, he added. A 10. Approve the appointment of Mr. Ruben Alvarez to the Anaheim Workforce Investment Board representing the Business Community for a term ending June 30, 2005. A 11. Approve the Administering Agency-State Agreement for Federal Aid Projects No. 12-5055, Program Supplement No. M105, for the Ball Road Improvements Project from Flore StreetlWest Place to Walnut Street. A 12. Approve the Joint Use Agreement with Southern California Edison Company to relocate and reconstruct its facilities to accommodate the proposed widening of Euclid Street. A 13. Approve the First Amendment to the License Agreement with Viacom Outdoor, Inc. for construction and maintenance of bus shelters. A14. Approve the Second Amendment to Agreement with ISE Research Corp. to extend a warranty on electric trams operating at the Anaheim Convention Center. 123 158 158 123 123 123 158 160 160 160 156 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 9 A 15. Approve an agreement with John Bates Associates, Inc., in the amount of $528,000, for design of the West Anaheim Youth Center/Police Station. A 16. Approve the Agreement for Acquisition of Real Property with Grover Escrow, in the payment amount of $245,000, for property located at 1775 South Dallas Drive for the Katella Avenue Smart Street Improvement (RW 5220-21). A 17. Approve the Agreement for Acquisition of Real Property with Grover Escrow, in the payment amount of $245,000, for property located at 1773 Gardenaire Lane for the Katella Avenue Smart Street Improvement (RIW 5220-25). A 18. Approve an agreement with the Anaheim Transportation Network, in the amount of $180,000, to carry out the Anaheim Transportation Network Work Program. A 19. Approve an agreement with Taormina Industries, LLC, in the amount of $177,500, for the purchase of five liquefied gas refuse vehicles. A20. Approve an Agreement with Kennedy Jenks Consultants, in an amount not to exceed $157,000, to prepare and complete the Combined Central Anaheim Area Master Plan of Sanitary Sewers and a Central Anaheim Area Financial Implementation Plan and Program for sanitary sewer needs within the Central Anaheim area. A21. RESOLUTION NO. 2002R-189 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM accepting certain deeds conveying to the City of Anaheim certain real properties or interests therein (City Deed Nos. 10543, 10544, 10545 and 10546). A22. Waive Council Policy No. 306 and authorize the Purchasing Agent to issue a two-year blanket purchase order to South Coast Lighting and Design, in an amount not to exceed $75,000 (tax inclusive), for purchase and installation of street, traffic and sign pole base covers on an as-needed basis for the Anaheim Resort District. A23. Waive Council Policy No. 306 and ratify the issuance of a purchase order to The Trane Company, in an amount not to exceed $34,948, for repair of an eight hundred ton Tran HV AC chiller for the Convention Center. A24. Authorize the issuance of a change order to AAA Flag and Banner, increasing the not to exceed amount by fifteen percent to $77,418 (plus tax), for the fabrication of banners for the Anaheim Resort District. A25. ORDINANCE NO. 5818 (INTRODUCTION) AN ORDINANCE OF THE CITY OF ANAHEIM fixing and levying a property tax on full cash value of all property within the corporate limits of the City of Anaheim for the fiscal year 2002/2003. A26. Authorize the donation of surplus video equipment from the Police Department's Video Operations Unit to the Orange Unified School District for use at Canyon High School. ....... 108 123 123 123 123 123 175 123 114 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 10 A27. RESOLUTION NO. 2002R-190 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM denying renewal of the massage technician's permit of Ms. Lea Pong Glance and making certain findings in conjunction therewith. A28. Approve and authorize the Pubic Utilities General Manger to execute the Water Conservation Agreement with the Metropolitan Water District of Southern California to provide funding for high efficiency clothes washer rebates. A29. Approve an agreement with the County of Orange to receive third year funding, in the amount of $300,000, for the continued operation of two Family Resource Centers for the purpose of providing services that promote safe and stable families and reduce child abuse. A30. Approve and authorize the Executive Director to execute Amendment NO.4 to the Professional Service Agreement with the Anaheim Redevelopment Agency and Willdan Associates for continued services of various CDBG and Agency funded capital improvement projects, including civil engineering services needed to support City and Agency projects (related to Agency Item 1). A31. Approve and authorize the City Manager to execute the Right of Entry and License Agreement with the Anaheim Sister Cities Association for installation of commemorative bricks as an ongoing effort to promote the Sister Cities organization. A32. Approve and authorize the Public Utilities General Manager to execute the Agreement for Replacement of Overhead with Underground Communication Facilities with Pacific Bell Corp. to permit joint trench construction cost for work within Underground District No. 42, State College Phase 1. Council Member Tait declared a conflict of interest on Item A32. A33. Accept the grant and authorize the Public Utilities General Manager to execute the Grant Agreement with Environmental Protection Agency, in the amount of $115,000, to perform a water system vulnerability assessment and amend the Utilities fiscal year 2002/03 budget to increase revenue and expenditures by $115,000. A34. Approve and authorize the Public Utilities General Manager to execute the Participant Agreement with Intercontinental Exchange, Inc. for energy market price information. A35. Approve minutes of the Council meeting held July 23, 2002. END OF CONSENT CALENDAR ,..,...... ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 11 158 A36. Consider the appeal of Verizon Wireless regarding the denial of the application for Right of Way Construction Permit No. RCP2001-02823 for the installation of a cellular antenna (5310 E. Nohl Ranch Road) Council Members Kring and Tait declared conflicts and left the dais. City Attorney, Jack White, stated that the City Attorney's Office and the Public Works Department were in support of the request for continuance to October 15, 2002. Mayor Daly moved, seconded by Council Member McCracken, to continue Item A36 for 50-days to October 15, 2002. Ayes - 3, Mayor Daly and Council Members McCracken and Feldhaus. Noes - O. Abstained - 2, Council Members Tait and Kring. 142 A37. ORDINANCE NO. 5819 (INTRODUCTION) AN ORDINANCE OF THE CITY OF ANAHEIM adding Section 1.09.052 to Chapter 1.09 of Title 1 of the Anaheim Municipal Code relating to Political Reform. Council Member McCracken noted that the City's Campaign ordinance was similar to the County's ordinance and the County had had amended theirs and she asked that the City's ordinance also be amended. She added that it related to slate mailers and how they were funded so that the voters knew who was paying for the funding of the slate mailers. She noted that there had been a way to bypass the $1,000 limit for campaign financing and that was the reason that she asked that it be placed on the agenda. CONDEMNATION HEARING: 121 A38. Adopt the Negative Declaration for the acquisition and demolition of property located at 1136 North La Palma Parkway for the La Palma Park Expansion Project. Mayor Daly moved, seconded by Council Member McCracken, to continue Item A38 for one week to August 27,2002, as requested by staff. Motion carried. Council Member Feldhaus temporarily absent Items B1 throuah B9 From Plannina Commission Meetina of July 29. 2002: (No action by City Council required unless expressly indicated. Council may consider and act upon such matters at its discretion. Items requiring a public hearing may be set for hearing at a later date upon the request of any two Council members.) APPEAL PERIOD ENDS AUGUST 20, 2002: 179 B1. WAIVER OF CODE REQUIREMENT CONDITIONAL USE PERMIT NO. 1564 AND NEGATIVE DECLARATION: OWNER: John M. Huish, 18300 Von Karman Avenue, Suite 900 Irvine, CA 92612 .-.....; 179 179 179 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 12 AGENT: Michael Coleman, 18300 Von Karman Avenue, Suite 900 Irvine, CA 92612 LOCATION: 1041 North Shepard Street. Property is approximately 7.0 acres located at the southwest corner of Shepard Street and Carpenter Avenue (Festival Fun Park). Requests to modify an existing family entertainment center by constructing a miniature golf course with waiver of minimum landscape setback adjacent to a freeway right-of-way. ACTION TAKEN BY THE PLANNING COMMISSION: Conditional Use Permit No. 1564 withdrawn (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). B2. CONDITIONAL USE PERMIT NO. 3950 AND NEGATIVE DECLARATION: OWNER: David L. Rudat, P. O. Box 1841, Orange, CA 92856 AGENT: A T & T Wireless, Attn: Martin Zimmerman 424 Bellflower Boulevard, # 218, Long Beach, CA 90814 LOCATION: 1110 East Oranaefair Lane. Property is approximately 0.25-acre having a frontage of 60 feet on the south side of Orangefair Lane located 196 feet west of the centerline of Raymond Avenue. Requests reinstatement of this permit by the modification or deletion of a condition of approval pertaining to a time limitation (approved on July 21, 1997 to expire July 21, 2002) to retain a telecommunications monopole and equipment enclosure. ACTION TAKEN BY THE PLANNING COMMISSION: Approved reinstatement to Conditional Use Permit No. 3950 for five years to expire on July 21,2007 (PC2002-113) (4 yes votes, Koos abstained, Commissioner Vanderbilt absent and one Commission vacancy). Negative Declaration previously approved. B3. CONDITIONAL USE PERMIT NO. 2090 AND NEGATIVE DECLARATION: OWNER: Aoun, 558 South Harbor Boulevard, # 100 Anaheim, CA 92805 AGENT: The Shack, Attn: Bob Gibson, 1160 N. Kraemer Boulevard Anaheim, CA 92806 LOCATION: 1160 North Kraemer Boulevard. Property is approximately 0.9- acre having a frontage of 175 feet on the east side of Kraemer Boulevard located 242 feet south of the centerline of Coronado Street (The Shack). Request reinstatement of this permit by the modification or deletion of a condition of approval pertaining to a time limitation (approved on August 27,2001 to expire August 27, 2002) to retain public entertainment accessory to an existing restaurant with sales of alcoholic beverages for on-premises consumption. ACTION TAKEN BY THE PLANNING COMMISSION: Approved reinstatement to Conditional Use Permit No. 2090 for one year to expire on August 27,2003 (PC2002-114) (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). Negative Declaration previously approved. B4. CONDITIONAL USE PERMIT NO. 2002-04570 179 179 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 13 CATEGORICALLY EXEMPT - CLASS 1: OWNER: Robert G. Becker, 10857 Westminster Avenue Garden Grove, CA 92843 Five Points Liquor, Attn: Jin S. Choi, 1108 West Lincoln Avenue Anaheim, CA 92805 AGENT: Platt Design, Attn: Bob Platt, 2740 Associated Road, D-42 Fullerton, CA 92835 LOCATION: 1777-1779 West Lincoln Avenue. Property is approximately 0.3- acre having a frontage of 66 feet on the north side of Lincoln Avenue located 500 feet east of the centerline of Crescent Way (Five Points Liquor). Request to permit the expansion of an existing legal non-conforming mini market with the retail sales of alcoholic beverages for off-premises consumption. ACTION TAKEN BY THE PLANNING COMMISSION: Approved expansion of Conditional Use Permit No. 2002-04570 (PC2002-115) (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). Letter of appeal submitted by the Applicant. Set for public hearing September 24, 2002. Item B4 appealed by the applicant and set for public hearing September 24, 2002. B5. CONDITIONAL USE PERMIT NO. 2002-04572 CATEGORICALLY EXEMPT - CLASS 1: OWNER: Anthony Kinninger, 2040 South Santa Cruz Street Anaheim, CA 92805 AGENT: A T & T Wireless, Attn: William Bennett 2301 Dupont Drive Suite 200, Irvine, CA 92612 LOCATION: 1990 South Santa Cruz Street. Property is approximately 0.48- acre located at the northeasterly corner of Santa Cruz Street and Stanford Court. Request to establish land use conformity with existing zoning code land use requirements for a non-conforming telecommunications monopole and to permit the co-location of additional telecommunication antennas and accessory ground- mounted equipment. ACTION TAKEN BY THE PLANNING COMMISSION: Conditional Use Permit granted for five years to expire on July 29, 2007 (PC2002-116) (4 yes votes, Commissioner Koos abstained, Commissioner Vanderbilt absent and one Commission vacancy). REPORTS AND RECOMMENDATIONS: B6. VARIANCE NO. 2001-04443. SPECIMEN TREE REMOVAL NO. 2001-00001 - REQUEST FOR REVIEW OF FINAL PLANS AND MITIGATED NEGATIVE DECLARATION: DR Horton, Attn: Cherryl Thompson, 119 North Maple Street, Suite A, Corona, CA 92880, requests review of final site, floor, elevation, landscaping, lighting and fencing plans for a previously-approved 128-unit single family subdivision. Property is located at 5801 East Santa Ana Canyon Road (Maag Ranch). ACTION TAKEN BY THE PLANNING COMMISSION: Variance No. 2001-04443 approved (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). .....01 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 14 Approved final plans, with added stipulations, to Specimen Tree Removal No. 2001-00001 . Mitigated Negative Declaration previously approved. 179 B7. CEQA EXEMPTION SECTION 15061 (b)(3) GENERAL RULE ZONING CODE AMENDMENT NO. 2002-00019 - REQUEST FOR REVIEW AND APPROVAL OF AN ORDINANCE: City of Anaheim, Planning Department, 200 South Anaheim Boulevard, Anaheim, CA 92805, requests review and approval of an ordinance relating to Group Homes and Residential or Group Care Facilities. ACTION TAKEN BY THE PLANNING COMMISSION: Recommended to Council approval of the ordinance (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). 179 179 179 ORDINANCE NO. 5820 (INTRODUCTION) AN ORDINANCE OF THE CITY OF ANAHEIM amending various sections of Title 18 of the Anaheim Municipal Code relating to zoning (Group homes and residential or group care facilities ). B8. CONDITIONAL USE PERMIT NO. 2001-04430 - REQUEST FOR EXTENSION OF TIME AND NEGATIVE DECLARATION: Danh C. Ho, 25726 Detmeter Way, Mission Viejo, CA 92691, requests an extension of time to comply with conditions of approval for a previously-approved 1-lot condominium subdivision to construct 3 detached condominium units. Property is located at 203 North Coffman Street. ACTION TAKEN BY THE PLANNING COMMISSION: Approved extension of time to Conditional Use Permit No. 2001-04430 for one year to expire on July 30, 2003 (5 yes votes, Commissioner Vanderbilt absent and one Commission vacancy). B9. CONDITIONAL USE PERMIT NO. 1742 - REQUEST FOR A NUNC PRO TUNC RESOLUTION: City-initiated (Planning Department), requests a nunc pro tunc resolution to amend Resolution No. PC2000-50, to correct the Conditional Use Permit Number in the title of said Resolution. Property is located at 600 South Brookhurst Street (In-N-Out Burger). Item B10 From Plannin~ Commission Meetin~ of Au~ust 12, 2002: (No action by City Council required unless expressly indicated. Council may consider and act upon such matters at its discretion. Items requiring a public hearing may be set for hearing at a later date upon the request of any two Council members.) APPEAL PERIOD ENDS SEPTEMBER 3, 2002 (except where noted): B10. RECLASSIFICATION NO. 2002-00075 WAIVER OF CODE REQUIREMENT CONDITIONAL USE PERMIT NO. 2002-04554 TENTATIVE TRACT MAP NO. 16371 WAIVER OF COUNCIL POLICY NO. 542 AND NEGATIVE DECLARATION: OWNER: Island Investment, P. O. Box 8032 ......' ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20,2002 PAGE 15 Newport Beach, CA 92658 AGENT: Pelican Homes, Attn: Brian Johnson 33971 Selva Road, Suite 135, Dana Point, CA 92629 LOCATION: 1126 North Euclid Street. Property is approximately 2.38 acres having a frontage of 286 feet on the east side of Euclid Street located 280 feet north of the centerline of La Palma Avenue. RECLASSIFICATION NO. 2002-00075 - Request reclassification of the subject property from the RS-A-43,000 (Residential/Agricultural) zone to the RM-2400 (Residential, Multiple-Family) zone, or a less intense zone. CONDITIONAL USE PERMIT NO. 2002-04554 - Request to construct a 36-unit attached residential condominium subdivision with waivers of a) required improvements of streets, b) maximum fence height, c) minimum dimension of parking spaces, d) minimum number and type of parking spaces, e) minimum building setback and f) minimum width of pedestrian access ways. TENTATIVE TRACT MAP NO. 16371 - To establish a 13-lot, (8 numbered, 5 lettered), 36-unit attached residential airspace condominium subdivision. Waiver of Council Policy No. 542 - To waive sound attenuation of residential projects adjacent to a primary arterial highway. ACTION TAKEN BY THE PLANNING COMMISSION: Reclassification No. 2002-00075 granted (PC2002-118) (5 yes votes, Commissioners Boydstun and Vanderbilt absent). Approved, in part, Waiver of Code Requirement as follows: approved waivers (a) and (f) (5 yes votes, Commissioners Bodystun and Vanderbilt absent); denied waiver (b) (3 yes votes, Commissioners Bristol and Eastman voted no and Commissioners Boydstun and Vanderbilt absent); and denied waivers (c), (d) and (e) (5 yes votes, Commissioners Boydstun and Vanderbilt absent). Conditional Use Permit No. 2002-04554 granted, in part (5 yes votes, Commissioners Boydstun and Vanderbilt absent). Tentative Tract Map No. 16371 approved (5 yes votes, Commissioners Boydstun and Vanderbilt absent). Waiver of Council Policy No. 542 approved (5 yes votes, Commissioners Boydstun and Vanderbilt absent). NOTE: Tentative Tract Map No. 16371 has a ten-day appeal period ending August 22, 2002. Review of the Planning Commission's decision requested by Mayor Daly and Council Member Feldhaus. Set for public hearing September 24, 2002. 6:00 P.M. PUBLIC HEARINGS: Item C4 taken out of order. 179 C4. CONDITIONAL USE PERMIT NO. 2670 CATEGORICALLY EXEMPT - CLASS 1: OWNER: Italian Bruno's Restaurant, 1750 West La Palma Avenue, Anaheim, CA 92801 AGENT: El Patio Restaurant, 1750 West La Palma Avenue, Anaheim, CA 92801 .....' ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20,2002 PAGE 16 LOCATION: 1750 West La Palma Avenue. Property is approximately 1.12 acres located at the southeast corner of La Palma Avenue and Mohican Avenue (EI Patio Restaurant). Request to amend a condition of approval pertaining to hours of operation in conjunction with a previously approved semi-enclosed restaurant and to permit a public dance hall as an accessory use with on-premises sale and consumption of alcoholic beverages. ACTION TAKEN BY THE PLANNING COMMISSION: Request to amend Conditional Use Permit No. 2670 denied (PC2002-96) (7 yes votes). Mayor Daly moved, seconded by Council Member Kring, to continue Item C4 to August 27,2002 as requested by the applicant. Motion carried unanimously. 107 C1. To consider a resolution approving a special permit to move one (1), two story building from 1100 West Lincoln Avenue to 1108 - 1120 West Lincoln Avenue in the City of Anaheim. David Cosgrove, Special Counsel for the City, stated that Mr. Kroilikowski was representing Mr. Berger who owned adjacent property, which was the property where the building was to be temporarily moved. Executive Director of Community Development, Elisa Stipkovich, said that the request was for Council to approve a moving permit for the building. As a result of the street widening and Five Points reconfiguration, the building under question would be scheduled for demolition, she noted, and it was a historical building that the community had requested that the City consider saving. In order to do that, Community Development proposed to temporarily move the building out of the way of the construction of the new realignment of Lincoln Avenue and place the building approximately 200-feet west of where it was located today, while negotiating and working with the developer who was interested in rehabilitating the property, she said. During that time, the feasibility of doing the project would need to be studied as well as the amount of property that would be needed, not only for the building but for the parking required for the projects, he said. There was not a specific project today, she said, and Community Development asked to prepare for the possibility of moving the building out of the way of the construction. The property that the building would be moved to was the property where the City had an order of possession that should become effective on September 16,2002, she noted. The move would not be taking place for two to four months from now and Community Development wanted everything in place so it would not interfere with the construction of the street improvements, she finalized. Council Member McCracken asked if the property would be demolished if the City did not have a developer who came forward or those interested in relocating the building or making it viable property did not make it happen. Director Stipkovich said that an agreement would be finalized in about a six-month time frame and Community Development could bring updates to Council prior to that to show what the status was of the negotiations. It would take somewhere between three and six months to have the developer obtain financing and move forward, she noted. If it was ...".....' ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 17 proved to be infeasible, Community Development would need to come back for further direction by the Council, she added. Mayor Daly opened the public hearing. Allan Jeffrey said he was in support of the move of the Five Points building and noted that it was an important part of American history. He added that the improvements in the Resort area were for the tourists and visitors to the City and saving and restoring a building that was once part of a vibrant downtown area would be a gift to the citizens. Jim Collison said he was a member of the City's adhoc Historic Preservation Committee and a subcommittee was formed to look at the prospects of saving the Five Points building for preservation purposes. He said that members of the Colony Historic District would like to see the building saved and it was one of the few historic commercial buildings left. He asked, on behalf of the Historic Preservation Committee, that Council support the building becoming a cornerstone of a revitalized historic district. Paul Kott said that he was in favor of moving the building. He said he did not know what the historical significance the building was and that he had taken part in historical preservation for some time and had taken part in the Anaheim Historical Preservation Foundation with regard to the twenty house saved from the wrecking ball, which now beautified the streets of Philadelphia, Cypress, Kroeger, Melrose, Atchison and Emily and the resurgence of the Colony area had been one of the best things that had happened in the past five years and had increased values of home prices and the pride of ownership with the residents in that area. He said that a cul-de-sac of Center Street with some older homes that would need to be demolished would be moved to Center Street and placed fronting Center Street with a fence in the back of the landscaped berm along Lincoln Avenue. He said it was important that the City recognized that this was the gate into the downtown from the 1-5 Freeway and it was important to remember that it was the first thing that people were going to see. He asked how this would this alter the plan if this was permanent, since this was a temporary move and how would it alter the plan to mix the single-family residential with the commercial property. He asked if it would be commercial, retail office use on the bottom and would it be residential on the top portion. He recommended that it all be made commercial and to forget about the apartments to be used in the upstairs and he asked how this would affect the previously- slated, single-family residential use for the move of older houses, just like the houses on Phildelphia Street. He asked that the highest possible standards be maintained for the redevelopment, rehabilitation of the property since it was the gateway. Larry Black said he was not opposed to the temporary move and he said he would like to see all of the resident homes put in place there. There were presently sixteen parking places at the liquor store, which he said he hoped would be removed, as well as Ace Fixture, and he anticipated that the gateway to the City would be developed beautifully. He did not know if moving the building was the best use of the building and temporarily, he was not opposed to it and he asked for serious planning to be done since he was told that there would be 80 parking spaces put in. Chuck Harrison said he was in favor of the building being moved and that there were concerns of the area residents that needed to be addressed, such as what they were going to do with existing housing in the area, the people in those homes and how they ~......, ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 18 would be compensated or moved. He said that as a resident of the neighborhood he was looking forward to the improvements that were long overdue for the Five Points Pharmacy. Chuck Krolikowski, Palmieri and Tyler, said he represented Dennis and Edith Berger at Ace Fixture Company at 1108 to 1128 West Lincoln Avenue and had previously submitted a letter to Council objecting to the special permit. He stated that on January 18, 2002, Council passed a resolution stating that the Ace Fixture property left as a result of the City's street widening project, was an uneconomic remnant, which meant that it had little or no market value. He said that Council wanted to place a building on the property for some type rehabilitation purposes and they had been told it was an uneconomic remnant and six to seven months later Council would like move a building there for some commercial or other-type use. He said he did not receive a copy of the staff report and in reading the resolution, it did not say temporary and yet staff had said that it was a temporary move. The resolution itself was the governing document, he noted and if it did not say temporary, it did not mean temporary, he said, and when it said move a two-story building, it meant to move it and not temporarily and gave the City the authority to do so permanently. He spoke about owner participation rights and his clients, as owner of the Five Points Liquor building, parking lot and Ace Fixture building, he said he believed that his client should have been given the right to participate in any redevelopment if this was truly a redevelopment project and rehabilitation of a building, pursuant to the health and safety code. He said he believed that his clients did not receive any type of notification, rights or offers to participate in any redevelopment project proposed by the City. He asked what type of building was proposed to be developed there and would it be commercial, office or residential. Sharon Becker said her neighborhood had been going through problems with Ace Fixtures for the last eighteen years and her home was one that was scheduled to be moved because there was to be a parking lot where her home was now. She had been at a meeting last week where she was shown proposals on the cul-de-sac and she asked how far this had gone and if there were more meetings where this could be discussed. She noted that her home was built long before the Five Points building and she would also like to see her home preserved. Will B. King spoke about eminent domain and participation in the ongoing proceedings. Mayor Daly closed the public hearing. Director Stipkovich said that the issues regarding the site plan and the ultimate use of the property would need to be determined. She said that Community Development had studied the feasibility and a very rough site plan and some of the neighborhood could see where the building could be physically placed on the property with the appropriate amount of parking. She said in looking at that all the way to the 1-5 Freeway, assuming that the City could acquire the CalTrans piece, there could be the Five Points building plus its required parking and still have room for five single-family homes to be moved there. She said that was a rough plan at this pOInt and by no means a final site plan and until Community Development negotiated with the developer and understood what the final uses were and work with the neighborhood and adjacent property owners, Community Development would need to come back with a final recommendation on a site plan and the actual land uses that would be proposed there. ..,...........' ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 19 Mayor Daly noted that the rational for the temporary move of the building was so that the work to fix the Five Points intersection could continue on schedule and the grant money would not be lost. Director Stipkovich said that was correct and that Community Development was moving the building out of the way of the construction/reconstruction of the street. Mayor Daly said that with the estimate of 80 parking spaces, if the building was restored as a commercial building, either with or without residential tenants on the second floor, the estimate of 80 parking spaces could go up or down depending on the final plan and Director Stipkovich said that was correct. She said that the question that was raised regarding owner participation rules and redevelopment of the area and that this was not in the project area and was not something that the Agency, although the Agency was a funding source in this case, was not in the redevelopment area and not subject to those requirements. She mentioned that the moving of the building to a portion of the Ace Fixture site was a temporary move and was not meant to be a final economic evaluation of the property. She said it would require a significant amount of additional property above and beyond what would be the remnant left from the Ace Fixture acquisition. David Cosgrove said he had reviewed the staff report regarding the contract for letting the relocation and the staff report for the request for the resolution and both indicated that relocation was to be temporary. He noted that Mr. Krolikowski had pointed out that the draft resolution did not have the temporary language and that was correct and Mr. Cosgrove suggested that the temporary relocation be incorporated into the resolution that would be adopted. He said it was his understanding that the allegation was that there was some sort of inconsistency between Council's prior finding that the remaining property, the Berger property, after the building was severed, was a non-economic remnant was inconsistent. He suggested that it was not and that a building was being moved and placed on blocks to an area out of the way of the bulldozers to analyze whether something could be done. He said that there were conceptual ideas of things that may be happening and he said he understood that any of the plans would require additional public acquisition of property or assemblage with property that was currently in public ownership and would not be available to private operators working out in the marketplace. He said to allege that was premature and factually inaccurate and he did not see the same inconsistencies that had been alleged and he said he believed that the City could move forward. Council Member Kring noted that she had not voted for the eminent domain because she thought that this was a historic building and she did not want it destroyed and she had suggested that it be moved. She said she looked forward to the next phase of the building's future. Council Member McCracken asked that the resolution be amended to say that the relocation of the building was temporary. City Attorney White suggested that three changes be made to the draft resolution, changing the word move to temporarily relocate since he said he believed that was the intention all along. He noted that the staff report clearly stated that this was to be a temporary relocation of the structure and this would clarify the resolution. ~'''-' 179 ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 20 Mayor Daly asked what the next steps would be and Director Stipkovich said that Community Development would work with the community to come up with site plans that would work for them and they would talk about alternative uses. Community Development would also work with the developer, Bill Taormina, who was interested in rehabilitating the building, she said, and then the final proposal would be presented to Council. Mayor Daly asked if there were any other opportunities for public involvement and Director Stipkovich said that Community Development had already met with the group and she said that they planned on meeting with them many times before returning to the Council. She said that she would work with residents adjacent to the site and the Neighborhood Council and other groups in the community. Mayor Daly asked if the building was moved permanently and it was entirely commercial and the parking lot was approximately 80-spaces, was the concept still that Center Street would be a cul-de-sac and Director Stipkovich responded that it would, under any circumstance, since it was part of the construction. Mayor Daly offered Resolution No. 2002R-191 for adoption, including the amendments to the resolution, which specify that this was a temporary move. RESOLUTION NO. 2002R-191 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM approving a special permit to move one (1), two story building from 1100 West Lincoln Avenue to 1108 - 1120 West Lincoln Avenue in the City of Anaheim. Roll call vote: Ayes - 5, Mayor Daly and Council Members McCracken, Feldhaus, Tait, and Kring. Noes - O. Motion carried. C2. VARIANCE NO. 2002-04502 CATEGORICALLY EXEMPT - CLASS 3: OWNER: Maria G. Delgadillo, 626 N. Rose Street, Anaheim, CA 92805 AGENT: Lorena Garcia, 521 North East Street, Anaheim, CA 92805 LOCATION: 626 North Rose Street. Property is 0.16-acre property located at the southeast corner of Rose Street and Wilhelmina Street. Waiver of maximum fence height to retain and permit existing unpermitted 5-foot high block wall pilasters and the construction of new 4-foot high wrought iron panels in between the pilasters, within the required front yard setback of a single- family residence in the RS-7200 (Residential, Single-Family) Zone. ACTION TAKEN BY THE ZONING ADMINISTRATOR: Variance No. 2002-04502 approved (ZA2002-17). (Review of the Zoning Administrator's decision requested by Mayor Daly and Council Member Feldhaus at the Council meeting of June 18, 2002. Continued from the Council meeting of August 6, 2002, Item C5). Zoning Division Manager, Greg Hastings, said that the matter had been initiated by a complaint received by Code Enforcement and the request was to maintain a five-foot high, block and rod iron fence that had been constructed within a public right-of-way along Rose Street. The fence was constructed immediately adjacent to the inside of the ~,""" ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 21 sidewalk and 6 ~ feet of public right-of-way existed between the sidewalk and the public lot and that right-of-way was now enclosed in the yard area behind the fence, he said. The front yard of the corner lot faced Rose Street and current code, which was adopted in 1999, limited fences in front yards to three-feet high, he said, and previous to 1999, Code allowed fences up to six-feet high in front yards provided the fence was at least 80 percent open and preceding Code versions that dated back several decades, allowed for various fence height in the three to four-foot high range. The majority of homes on the block were developed in the 1950's and three homes on the south end of the block, which was at the opposite end of the block from the specific property, were listed in the Anaheim Colony Historic District Preservation Plan as being qualified historic structures, he informed, and the list of structures had been approved by Council in 1997. He noted that the block was unique because of the sidewalk alignment, which changed mid-block on both sides of the street and the north portion of the block was developed with the sidewalk adjacent to the curb and parkway adjacent to the residential lots. The south portion of the block had the opposite arrangement with the parkway between the curb and the sidewalk and the unusual situation had led some property owners on the block to believed that their property line was located adjacent to the inside of the sidewalk, regardless of the location of the parkway, he informed. Several fences had been constructed on the inside of the sidewalk, he said, well within public right-of-way and staff had concerns about the variance request due to the Council and Planning Commission's objective to protect the residential integrity of the neighborhoods by not unneccesasarily fortressing front yards. The objective led to the 1999 Code amendment which limited fence heights in front yards to three feet, he said, and staff was sensitive to the issue and supported neighborhood efforts in areas that had homes of significant historic value where such fencing would detract from the historic ambiance of the neighborhood as well as any fence that would be unattractive and not fit in with the streetscape. The Zoning Administrator had approved the variance after taking a close look at the neighborhood and she had determined that of the 28 lots in the block, 21 of them or 75 percent, had front yard fences, 11 of which had been constructed in the public right of way, he noted. Included in the number were fences in front of two of the three historic homes as well as the other three corners of the immediate intersection where the subject property was located, he said. The fences on the block varied in height, material and dates of construction and were generally located at the inside edge of the sidewalk, he noted, regardless of the location of the sidewalk. He said that because of the unique situation and no neighbors in opposition, the Zoning Administrator felt that there were special circumstances on this particular block that did not pertain to other neighborhoods. The Zoning Administrator conditioned the approval on relocation of the fence out of the public right-of-way or alternatively, obtaining an encroachment permit from the Public Works Department to retain the fence at its current location, he informed. The Public Works Department had since confirmed the willingness to abandon the 6 ~ foot wide right-of-way for all properties on both sides of the block while retaining easement rights for any future public utility purposes, he reported, and given the unique situation, staff did not object to the Zoning Administrator's decision to approve the fence variance, subject to the conditions imposed by the Zoning Administrator, including a new condition that the property owner obtain building permits for the fence within 90-days of the City's right-of-way abandonment, if that occurred. He added that staff would not be making this recommendation if there was a historic home directly involved on the property and if the fence were unattractive or if there were not 75 percent of the other properties on the street that already had similar fences. ~.'... ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 22 Mayor Daly asked if this were approved, would staff be bringing a follow up action to Council. Public Works Civil Engineer Natalie Meeks said that the original approval recommended or was conditioned upon obtaining an encroachment license for the fence within the public right-of-way. Upon further discussions, she said she believed that it would be more appropriate to abandon the public right of way aspect since she did not believe it was appropriate to fence in public right-of-way. Public Works would retain a public utility easement across there because in the case of locations for street lights or fire hydrants, she said that they may need to be placed back in that area so that they would not obstruct the sidewalk area. Mayor Daly asked that if the fence that exceeded the current Code was approved, staff recommended that the property owner apply for the customary building permits for the fence and Manager Hastings said that they would. Mayor Daly asked if there were building permits on record at this time and Manager Hastings said that was correct. Mayor Daly opened the public hearing. Lorena Garcia said she was currently the owner and that she had the fence up for safety reasons since there were a lot of cars that went by and she had two children. She said that if she was denied and the pilasters were taken away, she would be denied of privileges that others were enjoying. Cynthia Ward said she did not have any objections to the fence and she said it was visually pleasing in comparison to other things that were going up. She objected to so many of the fences going up and then once they were up, there were consistently approved after the fact and there was a pattern of people putting the fences up without permits and then afterwards, they asked for permission. She asked to have that stopped and asked if there was a public education program that would let people know that they needed to pull permits and there were laws stating that the fences could not be over a certain height. She asked if the fence took up public right of way and if the homeowner would reimburse the City. Mayor Daly said that staff would be asked to comment and if the fence was approved, the right of way needed to be dealt with. Barbara Gonzalez said she was concerned about the lack of consistency that the City represented the community when there were not consistent guidelines in the erection of fences and front yards. She said she understood that there sometimes needed to be protection around a property and it was the neighbor's misunderstanding because other fences existed in the neighborhood, it would be all right to build a fence in excess of three-feet, which was the maximum. She suggested that if a fence were to be permitted there, it should heed the three-feet guideline and at least present consistency in the way that Code Enforcement and the way that the City addressed the building of fences in the City. ~"'.., ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 23 Mayor Daly asked the property owner if they wished to speak and they said that they did not. Mayor Daly closed the public hearing. Council Member McCracken asked if the City would address all the fences built in the public right of way since there were eleven other properties on the street where the fences had already been built in the public right of way. Public Works Civil Engineer Natalie Meeks said that the City had not addressed those fences pending Council's consideration and direction. She said if Council approved the wall staying, staff would look at abandoning the right of way where the other fences were located. She noted that if it was the Council's direction to move the fence back, the other property owners would be noticed of their encroachment into the public right of way and request that they move their fence back. She said that a problem had arisen due to an unusual condition of the sidewalk location and the stack of the sidewalk was the back of the right of way and a number of the property owners made the assumption and built, even if it was a conforming wall, a two-foot garden wall or a landscape wall, the City had historically allowed the small wall encroachments more landscaped features of the front yards into the public right of way as decorative features. If the City needed to get into that area, whatever utility or anything that was needed was placed in there when the time arrived. In the case where the property had actually been fenced in for their own use, it would need to be addressed and it was inappropriate and might cause future problems, she added. Council Member McCracken asked if there were minimal streetlights and there would need to be right of way in order to have street lights put in. Civil Engineer Meeks said that was the reason that Public Works would retain a public utility easement along the area because the streetlights would need to go behind the sidewalk and could not go within the sidewalk without blocking handicapped access. She said that fences would need to be modified wherever the streetlights would go. Council Member Kring noted that the height requirement had been changed in recent years and she said that the community may not know about it. She asked if something educational could be done and information could be placed into the utility bill when the new law changed or height restrictions had changed. She noted that 21 out of 25 homes had the fences and even two out of three historic homes in the neighborhood had the fences and it seemed that no one was aware of the restriction. She said that it seemed that there would be a hardship on the person when the whole neighborhood was in the position where the height of the fence was higher. She suggested that maybe information be placed in the Anaheim Magazine and that they did need to come to City Hall and get their permits. Executive Director of Planning and Community Development, Joel Fick, said that some of the fences may have been constructed legally at the time when the fence requirements actually permitted fence heights, in those locations, if they were 80 percent open. He said that Planning would like to pursue, possibly in the Neighborhood Preservation Office, re-informing some of the neighbors of the fence regulations, especially in the Historic District, and they would send out some type of notification or brochure. ~.11""'~ ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 24 Council Member Tait said that it made sense to place it in the Anaheim Magazine and he agreed with the Zoning Administrator that it was a wise decision since the street had 75 percent of the fences already. The applicant had young children and it seemed reasonable to him to balance the interest to allow it, he added. Council Member Feldhaus asked that at what point did the Council begin to enforce the new Code and how should it be done. He said he thought that sending out information in the electric bills would do that and it would need to be more of an intense notification. North Rose had a lot of similar fences, he informed, eleven of which were in the public right of way. If the City abandoned the public right of way, he asked, would the City be reimbursed by the resident. Civil Engineer Meeks said that it was a Council Policy that when the public right of way was abandoned, fair market value was received and there would be some reduction in the value because a public utility easement would be retained. Council then had the ability to waive the fair market value, she noted, if Council deemed it appropriate, in the situation due to the fact that people may have built the wall in the location not knowing that it was public right of way. Mayor Daly asked how many years ago the Code was changed to limit front yard walls on the sidewalk to three-feet and Zoning Division Manager, Greg Hastings, said that was in 1999. Mayor Daly asked how often people were constructing walls along the sidewalk regardless of height without obtaining the necessary building permits. Manager Hastings said it was a high percentage. Mayor Daly said that the City needed to step up the enforcement of building permits and there needed to be a comprehensive approach and be fair to everyone. Mayor Daly said that if there were some people living by the rules and others not, and no one was enforcing the rules, then you have chaos. He said that the City was being asked to be fair and make exceptions and this was clear-cut and there was a law on the books. He asked that staff come up with a more comprehensive way of communicating to every property owner in the City that building permits were necessary and that the process would educate people to what the Codes were. There were many ways to get the word out, he said, and this was awkward because someone in the neighborhood complained about the fence and asked the City to enforce the law. He said that Council had an obligation to enforce the law. Council Member Kring asked when the wall was built and Director Fick stated that it had been constructed recently and that the pilasters had just gone up and it had only been recently that it had been filled in. Council Member Kring said that she was concerned that the person had looked at the neighborhood and had seen a number of other fences built and if Council disallowed this fence, would Council allow the others that were out of compliance. Mayor Daly said that if the other fences were installed before the Code was changed, they were built legally. Council member Tait said that in this situation, there were alot of five-foot fences and he said that he thought that the Zoning Administrator had thought that it would look better having a five-foot fence on the property rather than a three-foot fence. .,.... ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 25 Council Member Tait moved, seconded by Council Member Kring, to approve the CEQA Finding of Categorically Exempt, Class 3. Motion carried unanimously. Council Member Tait offered Resolution No. 2002R-192 for approval. RESOLUTION NO. 2002R-192 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM GRANTING VARIANCE NO. 2002- 04502. Roll call vote: Ayes - 3, Council Members McCracken, Tait, and Kring. Noes - 2, Council Member Feldhaus and Mayor Daly. Motion carried. Council Member Feldhaus asked that staff disseminate information regarding the wording and rules of the new fence ordinance and any others having to do with the building of fences or setbacks. 179 C3. DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY NO. 2002- 00006. CATEGORICALLY EXEMPT - CLASS 1: OWNER: California State Teacher's Retirement 7667 Folsom Boulevard, Sacramento, CA 95826 AGENT: R. H. Properties, LLC., 34197 Pacific Highway, Suite 102 Dana Point, CA 92629 LOCATION: 650 North Euclid Street. Property is approximately 8.82 acres located at the northeast corner of Euclid Street and Crescent Avenue (Gigante Market). Request for determination of public convenience or necessity to permit retail sales of alcoholic beverages for off-premises consumption within a proposed grocery store. ACTION TAKEN BY THE PLANNING COMMISSION: Determination of Public Convenience or Necessity No. 2002-00006 denied (PC2002-91) (7 yes votes). Informational item at the Council meeting of July 2,2002. Appeal of the Planning Commissions decision requested by Agent, R.H. Properties, LLC. Mayor Daly declared a conflict of interest and left the Council dais. Zoning Division Manager, Greg Hastings, stated that the item had been appealed by the applicant and as noted in the August 13, 2002 staff report, the Gigante Market and accessory sales of alcoholic beverages were permitted at the location as a matter of right. He said that the only issue before the Council was a request by statute for a determination of public convenience or necessity to sell alcoholic beverages for off- premises consumption within the market. Considerations related to such a finding included the number of alcohol-related licenses existing within a particular census district as well as crime rate statistics, he informed. The reason that the item was before Council was that there was an over concentration of off-sale alcohol licenses in this census tract, he noted, with four licenses being permitted and eight existing. The finding was also necessary because the crime rate in the reporting district was 184 percent above the City average, he stated, and as noted in staff's report, there had been ... '........... ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 26 significant concern about any perception by the applicant or the public that the application was being viewed unfairly or being treated differently than other applications in the vicinity. He said that both staff and the Planning Commission's perspective consideration of the application had always been focused on adding a license to sell beer, wine and spirits in an area that already had an over concentration of such licenses. The application request for approval of a Type 21 license, which permitted the sale of beer, wine and spirits, he noted, and the applicant had indicated that they had entered escrow to buy a Type 20 license, which was a license to sell beer and wine only from a convenience market that presently did not sell beer and wine and had an active license and it was located about one-half mile away on La Palma Avenue. A proposal continued to be for Council approval for a Type 21 license, he said, since the market planned to continue to pursue the purchase of a license to sell spirits, in addition to beer and wine. A great deal of discussion had taken place comparing the proposed application with conditions applied to the Smart and Final store nearby. Council had approved a public convenience or necessity finding for the relocation of the Smart and Final store last fall, he said, from their existing location on Lincoln Avenue to a site in Anaheim Plaza near the proposed Gigante Market. He noted that Condition NO.2 of the resolution approving the finding specifically required Smart and Final to transfer their license from their West Lincoln location approximately one-half mile to the new site which they currently occupied and he noted that an excerpt to the conditions was attached to the staff report. He stated that staff recommended approval of the public convenience or necessity finding for the Gigante Market, subject to conditions very similar to the Smart and Final approval, except that Gigante's recommended conditions permitted longer hours of operation, they may immediately begin to sell beer and wine at the location from transferring the license currently in escrow and they may secure and transfer anyone of the ten existing Type 21 licenses within three-quarters of a mile to this location, rather than being limited to the transfer of one particular license located one-half mile away, which was the case for Smart and Final. The report to the Council included the specific wording for the condition, he added. Mayor Pro Tem Feldhaus opened the public hearing. Justo Frias said he was a representative and president of Gigante in the United States and he asked if the store would operate specifically in Anaheim Plaza and he introduced Ron Holley and asked him to speak about the details of the process that Gigante had gone through for the acquisition of the liquor approval for that site. He said that Gigante was a $3 billion company with stores operating throughout Mexico and there were in excess of 220 retail entities, similar to supermarkets, and many other concepts such as Radio Shack, Office Depot, a restaurant chain similar to Denny's and a concept that was similar to what a little corner grocery store was and it was a company that had different formats for different markets and had been in existence for over 39-years. Mr. Frias said that Gigante United States was a supermarket that contained Latino products and both Spanish and English languages were used for signage and spoken in the store and they were looking to attract all kinds of customers. The difference between Gigante and a Ralph's and Vons, he said, was that a customer would see very aggressive prices for produce and other items and meat would be presented in the carniceria concept and in a package to go. He said that the isles would be wide and clean and that Gigante would maintain high standards. He said that Gigante market finds facilities to build on and they find locations, such as Anaheim Plaza, which permitted Gigante to retrofit it and do the least amount of improvements in creating an entity for them. He said that Gigante sold .~., ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 27 liquor, beer and wine and the liquor section was locked up. He said that it was necessary to have a permit so that Gigante could be identical to any other supermarket operating in Anaheim and Gigante took care of the presentation and the amount of size or space given to the liquor section. Compared to a normal grocery store, he said that Gigante's liquor section was about half the size. He said that he was proud to be a Mexican grocery chain and Gigante was present to serve the entire community, not just part of it and he stated that Gigante's commitment to the City was to be a good neighbor and offer excellent prices. Ron Holley, R.H. Properties, LLC., said that he had difficulty with some of the conditions. He presented a rendering of the storefront and showed a vertical view of the site plan. He said the issue of over concentration of liquor licenses was part of the first recommendation by staff to recommend denial and the question was what was acceptable over concentration. He said that this was an unusual census tract and when Smart and Final was approved, there were three allowed or permitted Alcoholic Beverage Control licenses and seven existing at that time. He stated that Smart and Final made the eighth license in that census tract, a differential of five. He said that the Planning Commission and Council had both agreed that was an acceptable over concentration and Gigante, by Alcoholic Beverage Control rule, was looking at four permitted licenses because of an increase in population in census tract, rather than three, with the existence of eight licenses, Gigante would make the ninth license and would make a differential of five. That was the exact same over concentration of liquor licenses within that census tract, he said, and Gigante submitted that was not an unacceptable over concentration as indicated by the previous vote. He spoke about the issue of over concentration causing crime and said that in a revised staff report dated August 13, 2002, one of the three co-authors of the memo was the Police Chief and since he was an authority on crime in the City, he said he assumed that the Police Chief had some involvement in the statement and the statement was that there had been no statistical evidence that the sale of alcohol from Smart and Final Market had increased crime rate within the reporting district. Mr. Holley said it seemed to him that this was an acceptable level of over concentration meaning five above those permitted by the Alcoholic Beverage Control was an acceptable concentration and did not necessarily increase crime. He spoke about regionality and said that one of the comments that had come up in the course of the discussion before the Planning Commission was Gigante was not regional in nature and it was a super market and was a neighborhood. Someone from Redevelopment Agency staff indicated that in the original planning of the Anaheim Plaza, the area north of Crescent was considered the neighborhood portion of the project and it was regional, but there was a neighborhood segment. He said that the question was where the nearest Smart and Final location was in the discussion and the public hearing had been closed and he did not have a chance to rebut or explain was incorrectly analyzed and it was that since the nearest Smart and Final was seven or eight miles away, they must be more regional than a supermarket. He said that a supermarket was one-half mile up the street with the Ralph's at La Palina. The nearest Smart and Final was about three and one-half miles away, he noted, and there was one in Fullerton and one in Garden Grove. He said that the portion of Anaheim Plaza was the neighborhood portion of the project, which a super market clearly fit into, as testified by the staff. The nearest Gigante Market was in Pico Rivera, he said, and was over twelve miles away. It was a neighborhood store and Gigante wished to serve the immediate community so the question of regionality went away. Mr. Holley said that there was a question of whether to indicate clearly enough that Gigante satisfied the test ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 28 of public convenience and necessity and he submitted that over half of the trade area for the location was Hispanic and Gigante was a Hispanic market and would serve the majority of the population in that immediate area. He said that qualified satisfying the public convenience and necessity test. Grocery store sales were about 25 to 30 percent taxable, he noted, and Gigante would contribute approximately $80,000 to $90,000 per year in sales taxes and this was higher than some general retailers like Ross or TJ Max and would benefit the Redevelopment Agency's tax increment concerns. Mr. Holley spoke about conditions of approval and explained that the three-quarters of a mile radius issue was a major problem. When Gigante had first submitted their application to the City, they restricted themselves because they were aware of the City's concerns about increase in population of Alcoholic Beverage Control licenses within the community. He said that Gigante agreed to have a condition placed on them to find a Type 21, beer, wine spirits and liquors license within the City limits. He said that in the meantime, Gigante was unable to find a Type 21 license and have found a beer and wine license one-half mile away from Michelle's Market which would transfer into the store and then Gigante would at least be able to sell beer and wine until they could locate a Type 21 license. He stated that staff recommended that they would like Gigante to find a license within three-quarters of a mile and they did not think it was fair and Smart and Final did not have that condition placed on them. He said it was because Smart and Final had an existing license and it was one-half to three-quarters of a mile away and Gigante did not have an existing license and it was important to note that when the Planning Commission approved the Smart and Final application, the staff report based its decision on that an existing Type 21 license would be transferred to the new location thereby not impacting or increasing the overall number of Alcoholic Beverage Control licenses in the City. He noted that the staff report did not say for the neighborhood or the census tract or crime reporting district but they did say for the City. Mr. Holley said Gigante was restricted to finding a liquor license within three-quarters of a mile and they were forced to find a liquor license within a two square-mile area out of a 50 square-mile City and that was not fair. He said that Gigante was also asked to provide an agreement from the person that Gigante was buying the license from, the transferor and the underlying property owner, that they would give up the right forevermore to sell alcoholic beverages from their location. Smart and Final was not asked to do that, he said, and wherever a license would be purchased from and transferred to Gigante, the City would have the opportunity to review public convenience and necessity or a conditional use permit or some other type of method to control the additional license and the same type of condition could be placed on that person. A license had to be transferred in from somewhere else, he said, or it had to be dealt with in some other fashion. He said that crime, over concentration, sales tax, regionality and public necessity and convenience were not the issues and the issue was that Gigante was not being treated fairly, as evidence by the Smart and Final approval, with much less onerous conditions, and on a virtually same set of circumstances that existed as there was today and he added that there was not a crime issue. Ron Stockdale, Lincoln Properties, stated that the developers had looked for every grocery chain that there was and all of the traditional grocery store chains that were in the market were not interested. He looked at the Gigante Market in Pico Rivera and he said that they were every bit as nice as Vons or Albertson's. Gigante Market owners asked Mr. Stockdale to do an ethnic breakdown on all of the grade schools within a two- mile radius and the grade schools were in excess of 60 percent Hispanic and Anaheim ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 29 High School was close to 90 percent. He had the property owner, Orchard Supply Hardware, get involved with Gigante Market. He said he was met less than enthusiastically by the Redevelopment Agency and was told that Gigante's use was too specific and he said that neighbors would be intimidated going into a store because the music was Latin music. The signs were in English, as well as Spanish, and Spanish was emphasized, he noted. He said that he then went into the regional issue and he stated that Phase II was a neighborhood site, not a regional site and that there would be sales tax revenue. He asked the Redevelopment Agency if they would be interested in providing a subsidy for an alternative use and noted that Orchard Supply Hardware would have been happy for someone to write them a check to relieve them of their lease obligation. He said that there were many obstacles in the path of placing Gigante in that location. He said he believed that the property was zoned correctly and that the site was originally designed for its proposed use and he urged Council to support Gigante's use, Council Member McCracken said that the hearing was for the need and necessity for beer, wine and spirits and she said she believed that Mr. Stockdale was building up hostility in the community. She asked Mr. Stockdale about the reasons for need and necessity for the beer, wine and spirits for Gigante at that site. Mr. Stockdale said that as staff had indicated to Council, by zoning right, the property was already authorized to sell beer, wine and spirits, as well as groceries. Council Member McCracken noted that the City had 500 licenses, compared to 2,000 for the whole County of Orange, and that was why the City was dealing with the license issue. Mr. Holley said that the grocery stores did not operate without liquor departments and that would be like asking them to operate without a produce department. He said he had worked for Alpha Beta and they did not sell liquor until 1978 when they decided to put liquor in all of their stores. Richard Denholter of Alvarado, Smith and Sanchez said that Gigante U.S.A. was their client and that a lengthy number of documents had been given to Council showing community interest. He said that there were people who wanted something like this and that was the essence of public convenience and necessity. He said if people had trouble with English, that service would be provided to them. He said that this would not be a new license and would be transferred from somewhere else in the City to this location right next door to Smart and Final. Gigante had said that a liquor license was an economic necessity for a grocery store, he said, and was competitive. In November 2001, Council, upon the recommendation of the Planning Commission, approved the liquor license for Smart and Final. He said that there had been no change in crime statistics because of Smart and Final and the site was appropriate for a supermarket, he noted, and as long as the property was vacant, it would draw down the property tax. An active, vibrant store in that center would make the property tax and sales tax go up, he informed, and the City would derive benefits such as jobs. He said that the discretionary permit was the only thing that Council could say no to and he was not referring to the zoning. He said that Gigante wanted to operate in free competition in the free market with other supermarkets. He noted that there was condition that anyone that Gigante bought the license from had to surrender property rights and that it was not fair. He said his firm had a conversation with the Alcoholic Beverage Control people today and they ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 30 did not seem to think it was fair. He spoke about hours of operation and that Gigante would operate different hours than Smart and Final and there was a supermarket down the street that operated 24-hours and sold liquor. Persons who spoke in support of Gigante Market/liquor license: Rick Eiden Richard Chavez Will B. King Anna Torres Mike Garcia Reina Schmitz Amin David David Tecate Zeke Hernandez Jim Rodriguez Jose Iglisius Legaspe Steve A. Soto Les Blanchard Persons who spoke in opposition of Gigante Market/liquor license: Steve Eichler Jose Areyano Jane Leichus Bernie Carroll Cynthia Ward Lupe Moreno Judy Johnston Barbara Coe David Kendrick Elaine Proko Hal Rice Peggy Ergner Johanna Elizabeth Hofdaniel Dr. Howard Garber Robert Luna Michelle Lieberman Judithanne Gollette Ken Chen Larry Lake Larry Black Barbara Palmer Marcia Garten Ron Holley, R.H. Properties, said that there seemed to be a linkage between the number of licenses allowed or recommended by the Alcoholic Beverage Control and existing links to crime. He pointed out that the census tract immediately to the south had five licenses approved by Alcoholic Beverage Control, two licenses existing, and 382% above average crime rate. The Police Department had co-authored a memorandum and it said that there was not statistical information indicating an increase in crime as a result of the issuance of a license from Smart and Final. He said that Smart and Final was in ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 31 favor of Gigante Market going into that location and it would generate additional customer traffic. He noted that Gigante had secured liquor and there was no other store in California that did that on a regular basis and Gigante did it as a matter of course, from a security perspective. He said that Gigante had offered to restrict themselves and buy a license within the community and boundaries of the City limits and that was because the community was concerned about the number of licenses in the community. Smart and Final was approved last year and the crime rate had not changed and he said that Council and Planning Commission had accepted that level at the time. The Police Department did not make a negative recommendation on the Smart and Final application and they made a negative recommendation on Gigante and there had been no increase in crime as a result of Smart and Final and Gigante wanted to be treated fairly. Mayor Pro Tem Feldhaus closed the public hearing. Council Member Tait asked if there were any supermarkets in the City that were restricted from selling beer, wine and spirits and Executive Director rick said that there were none that he was aware of. Council Member Tait said Gigante wanted to come into the City to a vacant hardware store and open their supermarket to serve all of the consumers of the City. He said he did not see any nexis between them selling beer, wine and spirits and the crime rate. He said that there was evidence to the contrary with Smart and Final and it was an issue of property rights and freedom to sell what they wanted. He said he believed that it was an issue of fairness when no other supermarket had that restriction and he did not see why or how the City could do that to Gigante or any other person coming into the City. Gigante was in escrow to buy a liquor license and it was above and beyond what other people had done. He said he would overturn the Planning Commission's decision and not only allow Gigante to operate but to operate with an unrestricted liquor license. Council Member Kring stated that she visited the Gigante store in Covina and she said that the store was clean and the isles were wide and the language was half Spanish and half English. She said that the parking lot was clean and the shopping carts were picked up quickly. She said she was afraid to limit their license, the next time a Pavillion or Ralph's wanted to go into another section, there would be a precedent set that they would not be able to obtain a full liquor license because Gigante was denied. She said she was amazed that the liquor section at Gigante was so small and it was locked and at the Ralph's and Vons that she shopped at, there were isles and isles of liquor. Trader Joes never opened without beer, wine and liquor, she noted, and no one had ~ problem with that and it was a fairness issue. Council Member McCracken said that Council had heard from the Gigante spokesperson that they were willing to accept the condition of transferring a license and they showed Council where they were transferring a license from. She said she was not sure what other conditions were not wanted by Gigante. Director rick noted that two conditions were addressed by the applicant and one related to a more open endedness, in terms of location, rather than three-quarters of a mile. He said he believed that it was from somewhere in the community and then there was a comment that related to the requirement to extinguish their right. ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 32 City Attorney, Jack White, said he concurred with Director Fick and that it was important to clarify what he believed he heard Mr. Holley say which was that Gigante was willing to transfer an existing Type 20 license from a location that was within three-quarters of a mile from the proposed supermarket and to operate under that Type 20 license until such time as they could find, acquire and transfer a Type 21 license from somewhere within the entire City. He said it was also mentioned that the City would have a right to review any further application for a license from any premises from which their license they purchased was transferred. He gave an example, if Gigante purchased a license from a certain location in the City and if that location wanted to sell alcohol there again, the City would have some right to approve it. He said that in speaking with the Alcoholic Beverage Control Board representatives, his office was told that if, within a period of 90- days, the former premises sought to reactivate the license, they could do so without coming to the City for the termination of public convenience or necessity, regardless of how many licenses existed. He said that the only reason for the additional stipulations or provisions and the proposed condition was to assure that if a license was transferred, it would not be a hollow, meaningless type of transfer where another one sprung up immediately in the same location. If there was some other way to guarantee for that 90- day period where a license could be reactivated, that the transfer or location would not seek to spring up a new license there, he explained, and that the City would have input into that license. It was not meant to be a draconian condition that someone couldn't comply with or was impossible to comply with and it was mean't to handle that one limited situation where the City was advised that Alcoholic Beverage Control would allow a springing license to come back at the former location, without any input from the City. Mayor Pro Tem Feldhaus said that in the matter of service stations where they would buy other licenses out, Council was told by Alcoholic Beverage Control that the license went with the address and the property and if one was purchased and transferred, they could still come back and reapply, within 90-days. Council Member McCracken said that the City was 50-square miles and the biggest concentration of liquor licenses were in the center part of the City and it would be difficult to get a liquor license in the far eastern part of the City from a closed liquor store. It did nothing to improve the abundance of active liquor licenses, she said, which outnumbered any other city in the County. She asked Gigante to help the City with that and there were gas stations that had been dealt with beer and wine licenses and she said that Council was trying upgrade the whole City and it was a challenge for the City to deal with and the effects of it. She said that Council had dealt with the 90-day issue on 9as stations and there was an agreement with the person that sold it that they could not apply for another one within 90-days. She informed that she was willing to expand it beyond three-quarters of a mile but to say Citywide; there were enough liquor licenses in the center of the City that there would be one available. She added that with regard to the negative publicity, Gigante was not being a good neighbor even though they had hired a public relations firm to handle it and it did not help to tear the City apart. She said that Gigante had the right since it was a commercial property and at this point, they had agreed to transfer a license. She asked if Gigante would help the City with the 90- day issue of applying and that it be in the escrow since 90-days was the time frame that it could be obtained automatically, otherwise they would need to come to Council and that was what Council needed them to do. She said that she was willing to compromise ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 33 on the distance and she asked that it just not be any where in 50-square miles of the City. Mayor Pro Tem Feldhaus said he had met with Gigante and had asked them what percentage of their anticipated gross revenues or sales were for beer, wine and spirits and he was told it was two or three percent. He asked why the license was so important since two or three percent was not a large amount of money. He noted that one of the persons at Smart and Final had approved of Gigante coming in and he had not received a letter or phone call or heard anyone from Smart and Final speak at the hearing in favor. He had read letters submitted in favor and in opposition of Gigante and he had met personally with the Gigante representatives. He spoke about past businesses in the area and said that business was a key component for an economic balance in any community and that Planning Commission and Council Members needed to take into consideration the input of nearby residential property owners and taxpayers. He said he believed that there was no proven public need and convenience for the addition of a liquor license in this census tract, which already had eight and there were plenty. He said that for that reason and the unanimous reasoning of the Planning Commission in their decision to deny the application, due to an overabundance of liquor license and crime in the census tract, he moved to suppod the Planning Commission's denial of the application. Mr. Smith stated that he was legal counsel for Gigante and that he had a conversation earlier this date with the general counsel for Alcoholic Beverage Control regarding the issues posed by Council Member McCracken. He said that Gigante wanted to be a good corporate citizen in Anaheim and to a degree that a liquor license could be purchased next door or anywhere close by, he said that Gigante would do their best to do that. He had been informed by the general counsel of Alcoholic Beverage Control that legally, Alcoholic Beverage Control could not enforce those types of restrictions and unfortunately, Council could ask them to do that and they were not prepared to do that. He asked that Gigante be treated like any other entity that had come before Council for a supermarket and not have any restrictions. Gigante would do their best to satisfy the restrictions Council wanted to place on them and he said that legally, Alcoholic Beverage Control would not enforce those restrictions. With respect to the distance of the liquor license, Alcoholic Beverage Control agreed that Council could have a restriction that says that it must be within the City, but not within certain milage of the existing license or the location of the store. Council Member Tait asked if Gigante was in escrow right now to purchase and legal counsel for Gigante, Mr. Smith, said that they were in escrow to purchase a liquor license that was one-half mile away and it was a Type 20 license which was beer and wine and did not include spirits. He said that Gigante was proposing to go ahead with that transaction so that the store could be opened and then seek to find a liquor license as close to the store as possible. He said that Gigante would do everything in their power to do that even though he understood that Alcoholic Beverage Control would not enforce that. Council Member Kring said that there was an over abundance in the central and western part of the City and the Council preferred to have Gigante first obtain a license from that part of the City. ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 34 Mr. Smith said that Gigante would do that and would work with staff and community to make that happen. He said if that was not available, Gigante asked that it be expanded to the City limits, which was what Alcoholic Beverage Control would enforce, according to his conversation with them. Council Member Tait said that the City's Zoning Code said it was normal for a supermarket to sell alcoholic beverages and he said he thought as far as convenience, it would be odd going into a supermarket in Anaheim and not seeing a beer, wine and spirits section and he said it would be inconvenient for people. He noted that Gigante had offered to buy, on their own, another liquor license within one-half mile of the area and it happened not to include spirits and they were decreasing one within one-half mile. One of the options given to Council by staff was that this would satisfy the requirement. Council Member Tait moved, seconded by Council Member Kring, to approve the CEQA Finding of Categorically Exempt, Class 1. Motion carried. Mayor Daly abstained. Council Member Tait offered Resolution No. 2002R-193 for adoption and that the purchase of the beer and wine was in escrow and was sufficient to mitigate the unrestricted beer, wine and spirits license. City Attorney White stated that the applicant, as he heard it being offered, was that they would transfer the license and not obtain a new license, whether it was a Type 20 or Type 21 license. Gigante had, in escrow, a Type 20 license for beer and wine only, and once they acquired that, the store would be opened with beer and wine until such time as they could obtain a Type 21. Council Member Tait said that the motion he was making was that the Type 20 license, since it was only one-half mile away, would allow them to sell beer wine and spirits. City Attorney White said that Alcoholic Beverage Control would have a problem with that because they would either need to transfer a similar type of license or they would be able to obtain a Type 21 either as an original license or as a transfer. Alcoholic Beverage Control would not allow an upgrade of a Type 20 to a Type 21, he added. Council Member Tait said that two licenses would need to be purchased and City Attorney White said if Gigante started with a Type 20, they would need to surrender the license and obtain a Type 21 at a later date. Council Member Tait asked that the Cigante be allowed to operate with a beer and wine license and at a later date, purchase a beer, wine and spirits license within the City limits, to be consistent with what was required of Smart and Final. Council Member McCracken asked if Council had to have findings supporting the approval of the public convenience and necessity. City Attorney White said that there were other staff recommended conditions on the operation of the store that were in the original staff report and he had not heard that there were any objections to those. ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 35 Council Member Tait offered the resolution approving the application of the California State Teachers Retirement for Public Convenience or Necessity Determination for the property located at 650 North Euclid Street, subject to all of the conditions recommended in the staff report dated August 13, 2002, based upon the following findings: The proposed business was a 54,087 square-foot, full service supermarket intended to offer a wide variety of grocery produce and other products normally found in other supermarkets of comparable size. The proposed site of the supermarket was located in the CL zone of the City, which zone permitted markets as a primary use. Markets of over 15,000 square feet allowed the sale of alcoholic beverages for off-premises consumption as a permitted accessory use. Alcoholic beverages for off-premises consumption were customarily offered for sale in any supermarket of comparable size and character in California. The sale of alcoholic beverages in supermarkets was a convenience to customers because it permitted one-stop shopping for food, groceries and beverage purchases. The proposed application was for accessory sale of alcoholic beverage products in a full service supermarket rather than an establishment catering solely to the sale of alcoholic beverages for either on premise or off-premise consumption. No evidence had been presented that, permitting the sale of alcoholic beverages for off-premises consumption, that a full-service supermarket increased the crime rate in the reporting district of the supermarket. The proposed site was located within Census Tract No. 866.02 which allowed up to four off-sale licenses, pursuant to regulations of the Alcoholic Beverage Control. While there were eight existing, off-sale licenses in the census tract, five such licenses were for markets and three were for liquor stores. Final approval of the application was subject to the conditions proposed would not increase the number of licensed, off-premise establishments in the vicinity of the subject premises. RESOLUTION NO. 2002R-.193 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM FINDING AND DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY WOULD BE SERVED BY THE ISSUANCE OF AN ALCOHOLIC BEVERAGE CONTROL LICENSE AND APPROVING SUCH DETERMINATION FOR THE PREMISES LOCATED AT 650 NORTH EUCLID STREET, ANAHEIM, CALIFORNIA. (PUBLIC CONVENIENCE AND NECESSITY NO. 2002-00006.) Roll call vote: Ayes - 3, Council Members McCracken, Tait and Kring. Noes - 1, Council Member Feldhaus. Abstained - 1, Mayor Daly. Motion carried. Report on Closed Session Actions: Council unanimously authorized the City Attorney to file an appeal in the case of the City of Yorba Linda versus City of Anaheim, Orange County Superior Court Case No. 01 CC09320. Council Communications: Council Member Kring thanked Police Department dispatch. ANAHEIM CITY COUNCIL MEETING MINUTES AUGUST 20, 2002 PAGE 36 Adjournment: There being no further business to come before the City Council, Mayor Daly adjourned the meeting at 10:45 P.M. Respectfully submitted: Sheryll Schroeder, CMC/AAE City Clerk