Use Permit Appeal to Protect Downtown

Use Permit Appeal

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(note: some listed exhibits have been omitted from this web page but are available at City Hall)

MT. SHASTA TOMORROW

An Organization of Concerned Citizens

101 E. Alma Street, 100-A Mt. Shasta, CA 96067

Mt. Shasta City Council

305 N. Mt. Shasta Blvd.

Mt. Shasta, California 96067

APPEAL OF APPROVAL OF CONDITIONAL USE PERMIT

FOR ACE HARDWARE's OUTDOOR STORAGE / SALES AREA - Project 99-29

October 19, 1999

Honorable Councilmembers:

Ace Hardware's owners claim that they are unjustly being picked on because their project has been appealled. Quite the opposite, for there are issues here of local laws being violated, inadequate City Staff recommendations that misled the Planning Commission, as well as inadequate fees being paid for off-site parking.

While Ace Hardware is undoubtedly a beloved business by many and serves an important need in our community, its expansion will adversely affect the viability of the City's downtown if adequate parking isn't provided for it. This letter adds information for this Appeal to our letter of September 21, 1999 that MST submitted to the Planning Commission. Please consider both as part of this Appeal.

The decision on whether to grant or deny a conditional use permit for an outdoor storage and sales enclosure to Ace Hardware should be an easy one. You only have to consider one or at most two of Mt. Shasta's laws to decide this issue. By state law, a conditional use permit must be consistent with a city's general plan and zoning ordinance to be approved. /Endnote 1/ This project quite clearly isn't.

GENERAL PLAN PROHIBITS PROJECT

The General Plan only allows 60% of Ace's total parcel size to be developed with structures. (See Exhibit "A", G.P., page 43) Regardless of what kind of structure is proposed in excess of this 60% lot coverage limit, it cannot be allowed without violating the General Plan. /Endnote 2/. Ace is currently very near that limit at 59% lot coverage, and any new structural enclosure would exceed it. What Ace is proposing actually would exceed that maximum by a total of 66% lot coverage. (See Exhibit "B", Site Plan (near bottom of this web page); Lot Coverage calculation.) Once you recognize this inconsistency with the City's General Plan, you should be able to deny the Conditional Use Permit now and not even need to consider these other issues.

ZONING ORDINANCE PROHIBITS PROJECT

Outdoor Storage is not permitted within C-1 zone

If for some reason though you don't value our General Plan, then surely the Zoning Ordinance itself would prohibit outdoor sales and storage of Ace's requested merchandise. The City's staff freely admits that outdoor storage is prohibited on Ace's C-1 zoned parcel. The Planning Commission however was misled by Bill Ramshaw into believing that no outdoor storage is proposed. The application documents, as well as numerous statements by the Ramshaws and City staff, show that outdoor storage is and has always been contemplated. Only if Ace's property zoning was changed to C-2 or C-M could outdoor storage be possibly allowed. (See Exhibit "C", "Zoning Ordinance Table"). With the evidence that even the applicant provided by way of testimony and site plans, you should be able to decide that the Zoning Ordinance prohibits the issuance of a conditional use permit for this outdoor storage even if the General Plan didn't.

COMMISSIONERS EXPLICITLY CONSIDER THIS USE AS "STORAGE:

The Planning Commission struggled somewhat with the meaning of the term "storage." Some Commissioners stated that Ace was proposing storage; other Commissioners at times used the term "storage", then, snickering out loud as if amused by their deceptive interpretation to allow Ace to proceed, corrected themselves and said "sales." Even the project applicants have used the term "storage" many times since this project has been discussed. (See Exhibit "D", Planning Commission Meeting Minutes, 9-21-99). The Mt. Shasta Herald also quoted their use of the term "storage", including Commissioner Gayin Linx's comment about storage within the walled enclosure. (See Exhibit "E", 9-29-99 Herald news item"). Commissioner Mike Williams said later when the question arose again about this area's use being called "sales" that "that sounds a lot like storage to me." Chairperson Doug Cole said that "Outdoor storage is part of a necessity in a building trade business."

CITY'S PLANNING STAFF IDENTIFIES THIS USE AS "STORAGE:

Proposed outside "storage" is identified various times in the City's 9-21-99 Staff Report. (See Exhibit "F"). It states on page 2 that "Ace Hardware has conducted outside sales and storage of materials for over 25 years." It even called this proposed enclosure an "outside storage area." It also stated that "much of the merchandise proposed for this (fenced) area is seasonal in nature and easier to store and sell outside." The City's Staff also identified it as "storage" in its 4-26-99 Report to the City Council. (See Exhibit "G") Neither the City nor Ace propose to use this area substantially differently than they have for 25 or more years. It is a mystery how the City's Staff could have recommended approval for what it acknowledges to include storage when elsewhere the Staff Report states that storage isn't permitted by the Zoning Ordinance! At most, one Commissioner stated the Zoning Ordinance doesn't clarify the difference between the terms "storage" and "sales", as if the plain meaning of "storage" wasn't clear enough. Webster's Dictionary defines "storage" as the "safekeeping of goods in a warehouse or other depository." That's what is proposed here. The wall and lockable gate proposed for this outdoor enclosure helps safeguard Ace's merchandise while it is unattended.

Since Ace is only open 40% of the total hours during any week, then such outdoor merchandise is not available for sale during the other 60% of the time. Simply put, the merchandise Ace is proposing to place there is being stored most of the time. That's why this business is called an Ace Hardware "store". Garage "sales" move their goods typically indoors before and after, while commercial "stores" store the merchandise until it is later sold.

APPLICANTS ACKNOWLEDGE "STORAGE":

If such common sense isn't enough, all one would have to do is to look at the previous documents which Bill Ramshaw submitted to the City when this project first was applied for last spring. (See exhibits: H, I,J and K, "Plot and Site Plan" (page 1 of 6), "Floor Plan & Reflective Light Plan" (page 2 of 6), or the "North Elevation" (page 3 of 6)) These application documents which Ace Hardware submitted identify this outdoor area with the wording "FENCED STORAGE."

Eldon Ramshaw himself stated, according to the City Council's April 26, 1999 Minutes, that "there was a need for a small fenced outside storage area for various pipes as they are typically 20' in length." (See Exhibit "L"). Bill Ramshaw wrote the City: "Concerning our outside storage, we were not aware we were not zoned for this." (See Exhibit "M") The Minutes of the 9-21-99 Planning Commission meeting also contain several admissions by Bill Ramshaw about proposed "storage." (See Exhibit "D", Minutes, page 2) With this haunting evidence everywhere you look behind them, Ace's owners can't believably assert now that their enclosure won't be partially used for storage. They'll probably try nonetheless, and use whatever political support they can muster as if emotional clamor and pleas for favoritism can sidestep our laws. But no matter how you look at it, the thinly veiled deception that this area doesn't include "storage" can't fool all our City officials all of the time.

ZONING ORDINANCE PROHIBITS PROJECT

Manure, Pipe Yard and Building Material sales

not permitted within C-1 zone

On a totally different issue, the Zoning Ordinance doesn't allow many of the Ace's requested materials to be sold in a C-1 zone, even if they were contained within a building. It certainly doesn't allow steer manure sales outdoors. The pipe yard and building materials that Ace also wants to sell and store outdoors is listed in the Zoning Ordinance as permissible in a C-M zone, but not a C-1 zone. Therefore, a conditional use permit cannot be legally issued for these materials.

For example, steer manure is a nursery product used for gardening, and it certainly isn't related to "hardware". Nursery product sales are not even allowed in a C-1 zone. Before the Zoning Ordinance would allow nursery products like manure to be sold downtown, Ace's parcel would have to be rezoned C-2. (see Exhibit "C" above)

NO BUSINESS IS ALLOWED TO EMIT OBJECTIONABLE ODORS

Moreover, businesses are not allowed to emit objectionable odors in any zones. In a far less sensitive, controlled manufacturing (C-M) zone, odorous matter is not to be readily detectable at the property line. /endnote3/ Why in a C-1 zone should Ace's noxious pallets of steer manure now stored adjacent to its property line be allowed even if they are relocated behind an open fence?

One local restaurant owner/neighbor about four buildings away, Pat Butler, wrote to the City objecting to the odors his staff and guests experience from Ace's sale of steer manure. He said that the odors have a negative effect in the downtown area and should not be permitted. (See Exhibit "N", 9-14-99 Letter to City from Pat Butler).

Planning Commissioner Auxter said that the manure odor on a hot day will go a block and said the "odor doesn't seem right in beautiful downtown Mt. Shasta."

At that meeting, the applicant Bill Ramshaw responded and admitted that: "On a daily basis there are comments, but I take them as jokes. There are a lot of things said about it when the odor is ripe." Commissioner Auxter later said that "storing manure is a bad idea" but that he'd "support the project with the manure stored in the sales area with an awning". Ace Hardware has been storing this manure immediately adjacent to the Castle Street sidewalk. (see photos in Exhibit "O" and below)

With the public controversy about an obnoxious substance being approved, the City should have had good reason to question the health, safety and welfare issue of allowing manure sales and storage downtown. This is the kind of issue that is properly studied with environmental review. Not this time for some inexplicable reason. City staff just wasn't concerned even though CEQA requires it. Perhaps City Planner Mark Teague's surprisingly self-proclaimed purchase of 10 bags of steer manure from Ace Hardware the same day as the Planning Commission approved the conditional use permit, and [City Administrator] Joe Riker's comment about how to a country boy like himself the smell of manure was like perfume, provides good evidence that neither was very objective about the nuisance qualities to others of Ace Hardware's efforts to sell manure downtown. While some business owners may not need the tourism that others have come to depend upon to make their livings, it is the job of City Staff members to insure that everyone's needs are met by having our laws be impartially enforced.

INADEQUATE PARKING SPACES

Ace is shortchanging the public between over $120,000 to $200,000+ !

Mt. Shasta Tomorrow has raised the issue of Ace Hardware's failure to provide enough parking for its business in public comment to the Planning Commission dated 9-21-99. Ace is also attempting to evade paying adequate in-lieu fees so the City can build those parking spaces elsewhere.

By our count, here is a summary of the amount of parking spaces either lost or needed elsewhere because of this project:

10 spaces lost (by the Staff's estimation in its "Attachment F") and needed elsewhere due to building expansion to the south into the area formerly used for public parking north of the Art Center.

12 spaces needed just due to the newly increased floor area of Ace's building expansion (the City estimated about 8 to 9 spaces, but in so doing ignored the Parking Ordinance's requirement of 1 space per 300 square feet for the addition which had a net increase in area of 3,447 s.f. according to earlier calculations MST submitted).

3 spaces lost if Ace is allowed to occupy part of its paved area for outdoor storage (there is room there for 12 spaces without the enclosure, and only 9 spaces with it).

+3 spaces needed for the expansion of outdoor storage and sales area. (892/300=3±)

28 parking spaces are thus needed as a result of Ace's application (not counting those existing spaces which will remain which have served Ace's existing two buildings). (10+12+3+3 = 28)

The City has prepared recent studies about parking spaces claiming it really costs about $5,000 to $8,000 to create each new parking space elsewhere in town. With this evidence, then Ace is creating a need for the public to spend for these 28 spaces x ($5000 to $8,000 each) the amount of between $140,000 to $224,000 ! On the other hand, Ace is proposing to pay the City only somewhat over $16,500 by their own admission for their expanded project. By simple math, Ace Hardware is expecting the public to cover the difference which Ace can't provide on its lot of approximately $123,500 to $207,500.

Where will these new parking spaces be provided? The City Staff guessed that it might be provided behind Boss Photo by the railroad tracks, and also predicted in its Staff Report that few people who visit Ace Hardware would ever park there. No surprise then that even if the public pays the tremendous sums to provide free parking for Ace Hardware elsewhere, there will still be major parking shortages on Castle Street.

SUPPLEMENTARY ENVIRONMENTAL REVIEW REQUIRED

IF CITY INTENDS TO ALLOW THIS PROJECT

The issue of this parking was previously studied in the City's environmental review for this project. But at that time the City evaluated Ace providing 12 on-site parking spaces, not the 9 that could be provided if this outdoor enclosure is approved. Any substantial change to circumstances like this requires that the Mitigated Negative Declaration be supplemented with additional environmental review. For that matter, the issue of odor producing steer manure sales would also have to be evaluated. Accordingly, this project is not categorically exempt from environmental review.

INADEQUATE PUBLIC NOTICE

Violation of the Brown Act

for Failure to Place Project's Design Review on Agenda

The agenda for the September 21, 1999 Planning Commission meeting failed to disclose that Design Review of the structural enclosure would be also considered along with the approval of a conditional use permit. The City had a week earlier provided Public Notice that Ace was requesting design review for a change in its approved building siding materials, but didn't provide any notice it would be contemplating design review of this change in outside wall/fence structure.

This subject was raised by Planning Commissioner Mike Williams. He said at the meeting on 9-21-99 that "it seems like we're doing a Design Review and we don't have drawings." The Minutes of this meeting also state that Commissioner John Dell'Amico questioned the Staff on the lack of elevations and site plan for the walled enclosure. Mark Teague replied that the "applicant had opted to wait until the building permit process to submit these plans". Regardless of what an applicant would rather do, doesn't the City have standards that require those plans BEFORE the Planning Commission approves the design of this enclosure? The Planning Commission had no authority to approve this walled structure's design without the City's required application documents.

The Planning Commission is prohibited by the Brown Act from discussing matters not on the posted agenda. The Planning Commission nonetheless proceeded to discuss and approve Ace's proposed block walls, metal pipe railing, and other design aspects of this project. As a result, the public was provided no notice that this fence and wall would be considered at that meeting. For that matter, Mt. Shasta Tomorrow was not provided any notice either even though MST was the appellant in April 1999 which convinced the City to earlier overturn approval of Ace's outdoor storage enclosure. MST certainly had a right to written notice of any change in this project. Any action by the Planning Commission with a defective meeting agenda wording taken in violation of the Brown Act can be overturned in court on that basis. Therefore, this letter constitutes a formal demand to cure and correct that Brown Act violation by undoing the Planning Commission's approval granted for Ace's outdoor structural enclosure.

CONCLUSION

For these various reasons, Mt. Shasta Tomorrow asks the City to deny the conditional use permit for this project. Our laws will not permit it, and there were substantial errors made by the Planning Commission's approval on Sept. 21, 1999.

Instead, the City should require Ace Hardware to provide the 12 parking spaces it originally indicated on its site plan in February, 1999 when the project was initially reviewed under CEQA's provisions. That is the only environmental review this project has undergone. If the City won't do this, then it must supplement the previous Mitigated Negative Declaration and examine the new parking impacts of any more recent changes.

The availability of appropriately located parking spaces is very important downtown. Adequate parking helps keep a downtown vital and alive. The loss of available parking hurts all the other nearby merchants and business owners. Ace shouldn't be allowed to unjustly profiteer from its fortuitous proximity to the Castle Street parking mall which was paid for by the public. And the City should charge Ace Hardware the proper and full amount of in-lieu fees for off-site parking or require the Ramshaws to provide such off-site parking at their own expense. That would be only fair and wouldn't force the public to pick up the hundreds of thousands of dollars in costs that Ace currently wouldn't have to pay.

Thank you for your attention to this important and obviously controversial issue.

Sincerely,

Dale LaForest

Director - Mt. Shasta Tomorrow

(various exhibits are omitted from this version to fit on this web site, but are available at City Hall for public review)

ENDNOTES:

1/ A local agency does not have the authority to issue a conditional use permit if the permit is inconsistent with pertinent provisions of the General Plan. Neighborhood Action Group v. County of Calaveras (1984) 156 CA3d 1176 Also, to obtain a use permit, the applicant must show that the contemplated use is compatible with the policies in terms of the zoning ordinances, and that the use would not be detrimental to the character of the zoned district or detrimental to the public health, safety, morals and welfare. O'Hagen v. Board of Zoning Ajustment (1971) 19 CA3d 151, 158

2/ The 60% maximum allowable lot coverage figure is found in the table on Page 43 of the General Plan for "Commercial Center" land uses with access provided from a "collector street" (Chestnut Street).

3/ Mt. Shasta Municipal Code, § 18.20.340 Odors: No emission shall be permitted of odorous gases or other odorous matter in such quantities as to be readily detectable when diluted in the ratio of one volume of odorous air to four volumes of clean air, at the lot line.