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Home My WebLink AboutRES NO 186-02RESOLUTION NO. 186-02 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAKERSFIELD DENYING AN APPEAL OF A SITE PLAN REVIEW TO CONSTRUCT AN ADULT ENTERTAINMENT BUSINESS IN AN M-1 ZONE DISTRICT AT 3900 N. SILLECT AVENUE (File No. 02-0751) WHEREAS, Bob and John Stevens filed an application with the city of Bakersfield requesting a site plan review to construct an 8,895 square foot two-story building for an adult entertainment business in an M-1 (Light Manufacturing) zone district located at 3900 N. Sillect Avenue; and WHEREAS, in accordance with Section 17.08.080 of the Bakersfield Municipal Code, the Development Services Director on August 8, 2002 denied the site plan finding that the proposed adult entertainment business would be in violation with Section 17.69.040 (A.1 .) as it would be less than 1,500 feet from property that is zoned for residential use; and WHEREAS, Bob and John Stevens filed a timely appeal objecting to the Director's decision disputing the zoning of the residential use within 1,500 feet of the project and other issues; and WHEREAS, the Planning Commission through its Secretary set September 19, 2002 at the hour of 5:30 p.m. in the Council Chambers of the City of Bakersfield, City Hall, 1501 Truxtun Avenue, Bakersfield, California as the time and place for a public hearing on said appeal, and notice of the hearing was given in the manner prescribed in Title 17 of the Bakersfield Municipal Code; and WHEREAS, the Planning Commission found that the Development Services Director's denial of said site plan was appropriate as the proposed adult entertainment facility would be less than 1,500 feet from property zoned for residential use and therefore, denied the appeal; and WHEREAS, Bob and John Stevens filed a timely appeal objecting to the Planning Commission's denial of the appeal and identified several issues of concern; and WHEREAS, the City Council through its Clerk set November 6, 2002 at the hour of 7:00 p.m. in the Council Chambers of the City of Bakersfield, City Hall, 1501 Truxtun Avenue, Bakersfield, California as the time and place for a public hearing on said appeal, and notice of the hearing was given in the manner prescribed in Title 17 of the Bakersfield Municipal Code; and WHEREAS, at the above mentioned public hearing, all facts, testimony and evidence concerning the project were considered by the City Council and they made the following findings: -2- 1. The Planning Commission did not consider any argument or evidence on the constitutionality of the ordinance as it was not within their purview to discuss constitutional issues. The Commission was limited by the appeal to specifically address whether or not the Development Services Director applied the ordinance correctly to the proposed adult business. They were presented with the facts of the case and heard testimony from the attorney representing the applicants. The allegation by the applicant that the Planning Commission was "programmed" is unsubstantiated. The issue was straight forward and little debate was necessary as the Commission needed to either agree or disagree with the Director that the proposed adult business would be less than 1,500 feet from property zoned for residential use. The Commission considered all of the information before them in the staff report, appellant's letter and testimony at the hearing (the only public testimony given was by the applicant's attorney and no one spoke in favor of staff's recommendation). They found that the Director correctly applied the ordinance in denying the site plan as the proposed business would be inconsistent with the existing zoning regulations. Therefore, the appeal was denied. 2. The Council does not have the authority under this appeal process to address the issue as to whether the 1,500-foot separation restriction is justified. The purpose of site plan review is to examine a project's consistency with minimum ordinance standards. The Development Services Director must apply the adopted regulations in place at the time of review. He does not have the discretion to waive or determine some other standard is appropriate that is contrary to the ordinance. The appeal is limited to whether the Director correctly or incorrectly applied the ordinance to this project. The appellant makes comparisons with other communities' standards as being more appropriate but that is not relevant under this review. The findings for this project must be made with respect to the City of Bakersfield's ordinance standards, not some other community's standard. 3. The Council does not have the authority under this appeal process to address the issue of the ordinance's constitutional requirements. The appeal is whether the Director has correctly applied the ordinance in denying the site plan. It was noted that the City Council determined in February 2000 with the adoption of Resolution No. 14-00 that an adequate number of areas exists for the placement of adult entertainment businesses based on a detailed study conducted by the Planning Department. 4. Although the issue regarding the zoning of the existing adult business in the city is not relevant concerning the appeal, the appellant's comment regarding them operating under a special permit not technically correct. The three existing adult business are located in the C-2, C-B and M-1 zones. These zones specifically permit an adult oriented business by right and not under any special permit. They were established in compliance with the ordinances in place at that time. However, because of changes to the ordinance and sensitive uses being constructed near these uses over time, they no longer meet the code regarding separation and distance requirements but are considered legal nonconforming uses. -3- 5. The mobile home park at 3219 Gulf Street that is within 1,500 feet of the proposed adult business is within a residential zone. Research into the history of this park revealed that when it was initially annexed in 1966, the park was zoned M-1-T-D (Light Manufacturing - Trailer Park - Architectural Design). The T and D zones are combining zones to the M-1 zone. The D zoning was removed in 1998 when the city rescinded the zoning ordinance text for the Architectural Design regulations and removed the D designation from the official zoning maps. The T (Trailer Park) zone, which was created in 1960, existed in the zoning ordinance until 1969 when it was replaced with the MH (Mobile Home) zone. Propedies with the T zoning designation were rezoned MH but this property was overlooked resulting in the T designation remaining. It was the Director's determination that since the T zone permitted residential uses by right (as does the MH zone which replaced the T zone), that the mobile home park is within a residential zone. As pointed out by the Planning Commission during their appeal hearing, the intent of the separation requirements is to protect existing residential areas. 6. The official zoning maps of the city show that there is residential zoned land within 1,500 feet of their proposed site. The mobile home park is shown being zoned M-I-T. These maps have shown that zoning since this series of maps was adopted on January 19, 1989. The applicants were first made aware of this zoning when their proposal at 3775 Buck Owens Blvd. was denied on April 12, 2002. When consulting with Planning staff regarding the present location on July 18, 2002, staff noted that this new site was possibly within 1,500 feet of the mobile home park on Gulf Street and followed up with a letter on July 23, 2002 confirming that fact. The applicants, however, still proceeded to submit an application for site plan review on July 25, 2002. Staff notes that this property is currently owned by the Stevens' (Robert 2/3rds interest and John 1/3rd interest) which closed escrow July 19, 2002. 7. The proposed adult entertainment facility is approximately 950 feet from property zoned for residential use. The ordinance requires that the minimum distance separation be 1,500 feet. Therefore, the decision by the Development Services Director to deny the site plan was correct as was the denial of the appeal by the Planning Commission. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BAKERSFIELD that the appeal is hereby denied. .......... 000 .......... -4- I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on NOV t~ 20§Z , by the following vote: AYES: NOES: ABSTAIN: ABSENT: COUNCILMEMBER BENHAM, CARSON, COUCH, HANSON, MAGGARD, SALVAGGIO, SULLIVAN COUNCILMEMBER tx~"~- COUNCILMEMBER COUNCILMEMBER HARVI~Y L. HALL, May~r J CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED AS TO FORM: BART J. THILTGEN, City Attorney ...... P:\SPR 02 0751 cc rcs wpd