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HomeMy WebLinkAboutRESO7308• RESOLUTION NO. -7308 RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO UPHOLDING THE ZONING ADMINISTRATOR'S DECISION TO REVOKE CONDITIONAL USE PERMIT 73 -UP -22 RELATING TO AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 3901-3903 EL CAMINO REAL, AND DENYING THE APPEAL THEREOF The Council of the City of Palo Alto does hereby RESOLVE as follows: SECTION 1. Procedural Background and Statement of Facts. On September 27, 1993, pursuant to Palo Alto Municipal Code section 18.90.080, the City Zoning Administrator noticed a public hearing to consider revocation and/or modification of Conditional Use Permit 73 -UP -22 concerning the eating and drinking establishment operated by L'Ritz, Inc. and doing business as the nightclub "La Cumbre" located at 3901-3903 El Camino Real in the City of Palo Alto ("the premises")._ The hearing was conducted on October 21, 1993, with testimony taken from seventeen (17) interested parties and with the business owner, Mr. .Haroutune Avanessian (aka "Harry Evans"), represented by Donald A. Tennenbaum, Esq. Thereafter, on November 4, 1993, the Zoning Administrator revoked Conditional Use Permit 73 -UP -22 upon the basis of her findings that the use was. being conducted in violation cf specific conditions of the permit and that the use was being conducted in a manner detrimental to the public health, safety and welfare of the community. The decision was appealed in a timely manner by attorney Tennenbaum on behalf of the business owner. On February 9, 1994, the appeal was heard by the City Planning Commission. Nine (9) interested parties testified. During the hearing, attorney Tennenbaum represented that the business had been sold to the owner's brother, Mr. Ari Avanessian, but that formal transfer of title had not. been completed pending application to and review by the Department of Alcoholic Beverage Control. The Planning Commission voted 6-1 to uphold the Zoning Administrator's decision to revoke the Conditional Use Permit. On March 28, 1994, the matter came before the City Council. Mayor Kniss disclosed that she had visited the premises and that she had examined the functioning of La Cumbre during her preparation for the hearing. Vice -Mayor Simitian and Council Members McCown and Andersen disclosed that they had been contacted by representatives of the business owner to arrange visits of the premises and meetings, but that no such visits or meetings had occurred. Mayor Kniss outlined the Council's proposed procedural approach to the hearing. Barton Tlechtman, Esq. for the Law Offices of Robert J. Logan, appeared on behalf of the business owner (hereinafter "appellant"), and indicated that the Council's procedures were satisfactory. The Council then heard testimony and argument f',om twenty (20) interested parties and counsel, including both Haroutune and Ari Avanessian, resident of the Ventura and Barron Park neighborhoods immediately surrounding "La Cumbre," and representatives of the Palo Alto Police and Planning Departments. 1 440525 apc 0051150 • • The City Council's procedures, which had been provided to appellant's counsel, provide that- the record of proceedings includes all evidence previously heard and received by the Zoning Administrator, Planning Commission and City Council, as well as any new matter presented. SECTION 2. Analysis and Findings. Unless specifically set forth otherwise below, the City Council has determined that the witnesses and documentary evidence relied upon are credible and competent with respect to the facts determined below, and that the facts determined below are not speculative. Having reviewed and considered the information contained in the staff reports, minutes, letters and other documents included in the record of proceedings before the Zoning Administrator and Planning Commission and in this appeal, and having conducted a public hearing at which time 20 interested parties were given an opportunity to be heard and present evidence for and against revocation and/or modification of Conditional Use Permit 73 -UP -22 ("the CUP"), the City Council hereby makes the following findings based upon the testimony and evidence contained in the record of proceedings and received during the public hearing: 1. THE APPELLANT HAS AT ALL TIMES RELEVANT HEREIN CONDUCTED, MAINTAINED, AND PERMITTED LIVE MUSIC ENTERTAINMENT IN VIOLATION OF CONDITION NO. 1 OF THE CUP. Condition No. 1 of the CUP provides, in pertinent part, that: "Entertainment activities or devices shall be limited to public dancing and card playing as permitted by the Palo Alto Police Chief, recorded music and electronic amusement devices." (Emphasis added . ) The appellant admits that live music entertainment has been conducted, maintained and permitted on the premises. The appellant has also indicated an intention to continue to conduct, maintain and permit live music entertainment on the premises regardless of action by the City Council. This position supports the conclusion that any efforts by the City to modify the CUP to eliminate live music or to otherwise mitigate the direct or secondary negative effects of live music on the surrounding neighborhood would be futile. Therefore, even if there had been no other misconduct associated with the premises, the City Council would have no alternative but to revoke the permit in order to secure enforcement cf this provision of the CUP. The appellant failed to produce any credible evidence or legal argument to support the contention that live music entertainment is or should be permitted on the premises. The City Council expressly rejects appellant's contention that live music entertainment is permitted under the use permit; permitted under the 1973 or current Zoning Ordinance (PAMC, Ch. 18) as of right, 2 940525 ape 0051150 or; permitted as a result of operation of law under theories of estoppel, waiver, or otherwise. The City Council finds, upon the basis of substantial evidence in the record, that live music entertainment has caused and will continue to cause a series of seriously dangerous direct and secondary effects upon the surrounding neighborhood and the community in general. These effects include the following: A. Creation of excessive parking demand beyond the capacity of either the premises or surrounding neighborhood to accommodate safely. The evidence showed that there are currently 23 to 27 parking spaces available on the premises, with the appellant contending that up to 37 spaces might be accommodated. The evidence further showed that a live music entertainment use would require about 100 parking spaces on the premises, and that the use as approved in 1973 contemplated the substantially more modest parking demands that would result from an establishment providing recorded music only.. The City Council finds that live music entertainment, being more costly to produce than recorded music, requires larger crowds in order to be economically viable, and that the use of live music at the La Cumbre nightclub has in fact drawn significantly larger crowds than if no live music were featured. As a direct result of the lack of parking, patrons of the La Cumbre nightclub use off-street parking at the Ail -American Market and other businesses in the general vicinity of the premises. Off -site parking encourages excessive alcohol consumption by providing locations for La Cumbre patrons to drink outside the supervision of nightclub management. These unsupervised parking areas provide convenient locations for littering, illicit drug use, public urination and vomiting, fighting, and other activities which constitute offenses to the reasonable expectations of quiet and security in the surrounding residential and commercial areas, and there are several instances of such misconduct attributable to this use of off -site parking. The appellant also failed to offer any credible evidence to show that the unsupervised off -site parking areas are being used by nightclub patrons with consent, acquiescence or other authority from their respective owners and tenants, or that such parking may be relied upon for any extended duration. Moreover, the All-American Market sits across the El Camino Real from the premises. The El Camino Real is a state controlled roadway designated by the Palo Alto Comprehensive Plan as an "arterial" designed and intended to serve high volumes of through traffic. The volume and frequency of pedestrian crossings of the E1 Camino by La Cumbre patrons and the above -described activities of those patrons create a dangerous situation for both the patrons and vehicles using the El Camino. 3 940525 .pc 0051150 • B. Creation of a neighborhood -intrusive use that threatens the public health, safety and welfare. The evidence showed that the large crowds created by the live music entertainment are beyond the capacity of the nightclub management to control or mitigate. As a consequence, the spillover effects of the crowds threaten the Ventura and Barron Park neighborhoods with. significant health and safety problems. The record showed that the La Cumbre nightclub creates a costly and excessive demand for police services, with some 84 calls for service during the August 1992 to August 1993 period. On September 11, 1993, Palo Alto, Los Altos, and Mountain View police, along with the California Highway Patrol, were called to break up a riot of about 100 people on the El Camino Real adjacent to, and including patrons of, the La Cumbre nightclub. That incident alone resulted in 5 cut and stab wound victims receiving treatment at the Stanford University Medical Center. The City Council finds that calls for police service attributable to the actions of La Cumbre patrons have involved extraordinarily dangerous crimes. These criminal activities are not only threatening and dangerous to the neighborhood and to nightclub patrons, but also pose a significant safety risk for responding law enforcement personnel. The calls for service have involved, among others, the following dangerous or intrusive activities: Loaded weapons Knives Narcotics, including marijuana and cocaine Public drunkenness Open container violations Urinating ;.n public Vomiting in both public spaces and on private property Noise from music Noise from yelling Parking intrusion in the neighborhood Parking on the sidewalks Drivers and pedestrians at risk because of unsa.fe crossing mid -block on El Camino Real Assault, including assault with a deadly weapon Battery Public fighting Riot Harassment of passersby Broken glass The La Cumbre nightclub poses a significant threat to residents of the neighborhood. The testimony showed that many neighborhood residents have faced intimidating confrontations with intoxicated club patrons, noise, litter, intrusion from police calls responding to La Cumbre problems, and other conditions constituting a public nuisance. 4 940525 apc 0051150 C. Other impacts identified in the record of proceedings. The foregoing specific consequences of excessive patronage and mismanagement are not exclusive. The City Council, Planning Commission and Zoning Administrator heard substantial evidence demonstrating other adverse impacts from the use, and the City Council adopts that evidence in support of its decision. 2. THE APPELLANT HAS MAINTAINED A PUBLIC NUISANCE IN VIOLATION OF CONDITION NO. 2 OF THE CUP. Condition No. 2 of the CUP requires, iri pertinent part, that the appellant maintain: "Compliance with all applicable codes and ordinances including Titles 9 (Public Peace, Morals and Safety) and 15 (Uniform Fire Code) of the Palo Alto Municipal Code, and Titles 4 (Alcoholic Beverage Control Business Regulations) and 19 (Public Safety) of the State of California Administrative Code." The record demonstrates that the appellant has violated this condition by maintaining a public nuisance and by violating Alcoholic Beverage Control regulations. Palo Alto Municipal Code section 9.56.030(a) (21) defines public nuisance to include any condition on or use of property which is in fact a menace to the public peace, health, or safety. The record shows that some 15 to 17 months elapsed between the July 31, 19Q2, letter from Police Captain Tom Merson notifying the appellant of nuisance conditions on the premises and any purported remedial action by the appellant. The appellant's unreasonable .delay in responding to these dai.3erous nuisance conditions exacerbated the threat to the public safety and resulted Ln substantial addit_onal expenditures of law enforcement resources. The record demonstrates a long history of enforcement actions by the Department of Alcoholic Beverage Control ("ABC") with respect to the premises. On October 9, 1992, ABC notified the appellant that: " . . . patrons leaving your premises at or about closing time are very intoxicated and tend to loiter, fight and cause disturbances to the surrounding neighborhood. . . . excessive man hours and personnel are being used to respond to the fighting, intoxicated patrons, noise complaints, disorderly crowds, and other miscellaneous violations stemming directly from your premises. 5 940525 .pc 0051150 Business and Professions Code Section 4200(e) and Penal Code Section 343(a) prohibits (sic) this type of activity." On the sane date, ABC's District Administrator notified Palo Alto Police Chief Chris Durkin of a "Final Order" of action with respect to the premises as follows: "The Department has accepted the licensee's Offer in Compromise in the amount of $1,500.00 in ,lieu of a 10 day suspension." On July 29, 1993, almost one year later, ABC was still involved with the appellant. The District Administrator wrote to the appellant that: "Between September 12, 1992 and June 3, 1993, Officers from the Palo Alto Police Department responded to twenty six (26) incidents that occurred on or about your licensed premises. As you are aware, this amounts to a violation of the law and of the Rules and Regulations of the Department. You as a licensee, are under a continuing duty to properly supervise your premises and prevent such occurrences. This letter should be considered an official warning notice, a copy of which will be maintained in your permanent file." As a separate and independent basis for revocation of the CUP, the City Council finds that the above -described conduct by the appellant constitutes a menace to the public health and safety and that there is a compelling public necessity warranting revocation of the CUP. 3. BECAUSE THE APPELLANT AND THE PURPORTED NEW OWNERS OF THE P]LEMISES FAILED TO DEMONSTRATE THEIR CAPACITY OR WILLINGNESS TO CORRECT THE NUISANCE ISSUES AND CONDITION VIOLATIONS, THE USE IS BEING CONDUCTED IN A MANNER DETRIMENTAL TO TEE HEALTH, SAFETY AND WELFARE AND MODIFICATION OF THE PERMIT CONDITIONS TO ADDRESS THE PROBLEMS WOULD BE FUTILE AND INFEASIBLE. Appellant contends that the nature of the use has changed so that the nuisance and safety violations acknowledged to exist during at least the 14 months prior to commencement of the City's revocation/modification proceedings can be discounted or ignored by the City Council. However, appellant has not offered any satisfactory explanation for the delay of at. least 14 months in purporting to address these concerns. With respect to the change 6 940525 apc 0051150 • in use, appellant states that the type of live music has been changed to a "latin" or "tropical" jazz format and contends that this type of live music will attract less violent patrons. There is no evidentiary basis for this contention, and the City Council expressly rejects any implication by the appellant that the ethnicity of the nightclub's patrons is relevant to, or should be considered, in the City decisionmaking process. The City Council finds that the nuisance and safety violations have not resulted from the appellant's business practice of targeting a particular ethnic group. Rather, these problems have been the predictable result of mismanagement of the premises by appellant, including failure to supervise on- and off -site parking areas, failure to provide adequate litter control, failure to provide adequate security guards and systems, failure to adequately monitor and police patrons' behavior near the premises, failure to control admission to the premises by intoxicated patrons, failure to restrict in and out privileges in order to prevent outside drug and alcohol use and abuse, repeated egregious instances of overserving of alcohol to intoxicated patrons, and misrepresentations of the nature and scope of the proposed use on various City entitlement applications. Appellant further contends that the purported change in ownership should be considered by the Council. The record shows that the purported change in ownership is in fact a sale from Haroutune Avanessian (aka Harry Evans) to his brother, Ari Avanessian. The evidence submitted by appellant shows that the business has gross receipts in the range of $1.2 million per year. The purported sales price is $70,000, as disclosed on the face of documents submitted by appellant during this proceeding. This grossly disproportionate relationship between the sales price and the business receipts, along with the close familial relationship between the parties to the purported sale, raises substantial questions about whether there will in fact be a transfer of management control and the extent and duration of any contemplated transfer of such control. As a result, the City Council declines to rely upon the reduction in police calls following initiation of revocation/modification proceedings as evidence of new found management skills on the part of the appellant or the purported new owner. In sum, weighing all of the evidence, the City Council concludes that the recent reduction in police activity relating to the premises does not demcastrate that the nuisance and other problems that caused initiation of these proceedings will not recur. As a consequence of the foregoing, taken in combination with appellant's unwillingness to accept or acknowledge the legitimacy of the City's prohibition of live music entertainment on the premises, the City Council finds that the use is being conducted in a manner detrimental to the health, safety and welfare, that such use constitutes a public nuisance, and that modification of the permit conditions to address the problems would be futile and infeasible. 7 940525 apc 0051150 SECTION 3. General Considerations. A. As an alternative and independent basis for reaching the decision set forth below, the City Council has determined that the appellant has failed to meet his burden of proof in these proceedings in that the appellant failed to submit persuasive and credible substantial evidence that the proposed use at the proposed location would not be detrimental and injurious to property or improvements in the vicinity, and would not be detrimental to the public health, safety, general welfare and convenience. The appellant also failed to demonstrate that Condition No. 1 permits live music entertainment. The City Council's own interpretation of that condition, as supported by the consistent administrative interpretation by City enforcement officials, is that live music is prohibited at the premises. B. The City Council finds that each of the considerations and findings set forth in this Resolution separately and independently constitute substantial evidence and independent grounds in support of the decision set forth below. C. The City Council has received and considered a May 13, 1994, letter frc'm legal counsel for appellant, including the three purported statements attached to the letter as exhibits. Appellant requests the City Council to reconsider its decision to revoke Conditional use Permit 73 -UP -22 upon the basis of this "new evidence." The City Council finds that an insufficient showing has been made to warrant reconsideration of the revocation decision finalized by this Resolution, and further declines to reopen the record of proceedings to admit the statements. First, there has been no showing made by the appellant that the purported statements could not have been produced, in the exercise of reasonable diligence, during any of the extensive proceedings taking place before the close of the hearing on March 28, 1994. Second, there being no factual basis or foundation upon which the written statements can be authenticated, the Council finds that, under all. the circumstances, the statements are not the sort of material upon which reasonable people would rely in the conduct of serious business affairs, and upon that basis would assign the statements little or no evidentiary weight, even if admitted into the record of proceedings. Third, even without regard to whether the statements constitute "new evidence," the City Council finds that nothing in the contents of the statements or the accompanying letter provides any basis for reconsideration. With respect to the "additional permit condition" that the prospective new owner proposes, there is an insufficient description of the new forms of live entertainment that are proposed ("comedy, dancing, karaoke singing") to permit meaningful evaluation at this late date. Moreover, to the extent that these forms of live entertainment are subject to review as conditional uses or other discretionary entitlements, there is no showing that they would be likely to reduce the volume of crowds, parking impacts, alcohol -serving related mismanagement, and other impacts that have resulted from the premises to date. Although the City 8 940525 spc 0051150 • • Council cannot appropriately consider the alternative proposed uses at this time f ollow=ng closure of the hearing and under these circumstances this decision is, as noted below, expressly made without prejudice to the appellant's opportunity to apply at any time for conditional use permits or other discretionary entitlements for the alternative proposed uses or otherwise. SECTION 4. Statement of Decision. Based upon the foregoing findings, and the findings and evidence set forth in the staff reports and record of proceedings, the City Council hereby upholds the Zoning Administrator's decision to revoke Conditional Use Permit 73 -UP -22 relating to an eating and drinking establishment located at 3901-3903 El Camino Real, and denies the appeal thereof. The appellant is granted sixty (60) days to terminate the use. This decision is without prejudice to the appellant's opportunity to make any other lawful use of the premises, or to apply at any time for any permit or entitlement necessary to make any lawful use of the premises. INTRODUCED AND PASSED: May 23, 1994 AYES: ANDERSEN, FAZZINO, HUBER, KNISS, MCCOWN, ROSENBAUM, SIMITIAN, WHEELER NOES: ABSTENTIONS: ABSENT: SCHNEIDER 1.40A.41-17(ATTEST: City/clerk APPR rney Director of Planning & Community Environment 9 940525 apc 0051150