HomeMy WebLinkAbout2023-066 - Denying Appeal No. 2023-06 & Upholding the Determiniation of the Planning Commission to Deny a Modification - 2230 N. Tustin Ave.RESOLUTION NO. 2023-066
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA DENYING APPEAL NO. 2023-06 AND
UPHOLDING THE DETERMINATION OF THE PLANNING
COMMISSION TO DENY A MODIFICATION TO
CONDITIONAL USE PERMIT NO.2019-41 TO ALLOW THE
CONSTRUCTION OF A SERVICE STATION, AND TO DENY
CONDITIONAL USE PERMIT NO. 2023-03 FOR A LAND
USE THAT REQUIRES A REGIONAL, STATE, OR FEDERAL
PERMIT TO HANDLE, STORE, EMIT OR DISCHARGE
REGULATED COMPOUNDS, MATERIALS, CHEMICALS, OR
SUBSTANCES WITHIN 500 LINEAR FEET OF A PUBLIC
PARK, SCHOOL (K-12), OR RESIDENTIAL ZONE IN THE
ARTERIAL COMMERCIAL (C5) ZONING DISTRICT, FOR
THE PROPERTY LOCATED AT 2230 NORTH TUSTIN
AVENUE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. Fred Cohen with CJC Design, Inc., on behalf of Farz, Inc. (Applicant) and
Heinecke Gould Properties, LLC (Property Owner), is requesting approval of
modification to Conditional Use Permit (CUP) No. 2019-41 to facilitate the
construction of a new service station and convenience store located at 2230 North
Tustin Avenue.
B. Applicant is also requesting approval of Conditional Use Permit (CUP) No. 2023-
03, to allow a land use that requires a regional, state, or federal permit to
handle, store, emit or discharge regulated compounds, materials, chemicals,
or substances within 500 linear feet of a public park, school (k-12) or residential
zones in the Arterial Commercial (C5) zoning district at 2230 North Tustin
Avenue.
C. Santa Ana Municipal Code (SAMC) Section 41-424.5(f) requires approval of a
CUP for service stations within the Arterial Commercial (C5) zoning district.
D. SAMC Section 41-199.4(a) requires a conditional use permit for any use that
requires a permitfrom a regional, state, orfederal agency to handle, store, emit
or discharge regulated compounds, materials, chemicals, or substances that is
located within 500 linear feet of a public park, school (K-12) as defined in
section 11362.768 of the Health and Safety Code, or property used or zoned
for residential purposes.
Resolution No. 2023-066
Page 1 of 7
E. On May 26, 2020, the City of Santa Ana Planning Commission held a public
hearing for the proposal of a new service station on the subject site. The
Planning Commission unanimously approved CUP No. 2019-41 and Variance
No. 2019-05 to allow the construction of a new service station on the subject
site.
F. On December 20, 2022, the City Council adopted an ordinance to require
businesses requiring a regional, state, or federal permit to handle, store, emit
or discharge regulated compounds, materials, chemicals, or substances within
500 linear feet of a public park, school (K-12), or residential zones to obtain a
CUP (Ordinance No. NS-3038).
G. On June 20, 2023, the City Council adopted an ordinance amending various
sections of Chapter 41 (Zoning) of the SAMC, which include Section 41-199.4
Noxious uses, to expand the distance measured from subject properties to the
closest point of any public park, school, or property used or zoned for
residential purposes from 500 linear feet to 1,000 (Ordinance No. NS-3044).
H. The applicant is proposing modifications to the original CUP 2019-41
entitlement to allow construction of a new single -story, 2,150-square-foot
commercial building, containing a convenience store, as well as a 2,880-
square-foot fueling canopy with six fueling stations. Based on the date on the
application, the project is subject to Ordinance No. NS-3038 and subject to a
500 linear foot separation requirement instead of 1,000 linear feet.
I. Pursuant to SAMC Section 41-638, the Planning Commission is authorized to
review and approve both CUPs for this project as set forth by the SAMC.
J. On June 26, 2023, the Planning Commission held a duly noticed public hearing
for modification to CUP No. 2019-41 and CUP No. 2023-03.
K. At the public hearing, the Planning Commission received a report and staff
presentation, as well as public comments, for modification to CUP No. 2019-41
and CUP No. 2023-03. During the public hearing, representatives of the adjacent
property at 2112 East Santa Clara Avenue, as well as community members
consisting of residents, representatives and parents of children attending the
neighboring child-care facility, spoke in opposition of the project. The comments
in opposition were regarding concerns about the potential environmental and
operational impacts of the new service station on the surrounding area.
L. After receiving a staff presentation and public comments regarding the changes
to the project, the Planning Commission voted to adopt a resolution denying
modification to CUP No. 2019 and CUP No. 2023-03, providing two findings for
denial pursuant to SAMC Section 41-638. The proposed motion passed with five
votes in favor and two against (Ayes: Commissioners Escamilla, Oliva, Woo,
Pham, Ramos, Noes: Leo, Benninger).
Resolution No. 2023-066
Page 2 of 7
M. On July 6, 2023, Michael Ayaz (Appellant) on behalf of Farz, Inc. & Fred Cohen
(Applicant), filed Appeal (APPL) No. 2023-06 for modification to CUP No. 2019-
41 and CUP No. 2023-03. Pursuant to SAMC Section 41-645, the City Council
is authorized to review appeals of Planning Commission decisions and may,
after holding a public hearing, affirm, reverse, change, modify the original
decision and may make any additional determination it shall consider
appropriate within the limitations imposed by Chapter 41 of the SAMC. To
support the City's recommendation to deny the appeal applications and uphold
the Planning Commission's denial of modification to CUP No. 2019-41 and
CUP No. 2023-03, the City prepared a response to the comments contained
within both appeals, attached to the Request for Council Action (RFCA) staff
report, dated October 3, 2023, contained within the report and attached thereto
as Exhibit 8.
N. Staff prepared a resolution for denial of modification to CUP No. 2019-41 and
CUP No. 2023-03 for consideration by the Planning Commission on the
consent calendar of the regularly scheduled August 28, 2023 meeting to affirm
the action to deny the subject applications, which took place on June 26, 2023.
O. On October 3, 2023, the City Council held a duly -noticed public hearing on
Appeal No. 2023-06 for modification to CUP No. 2019-41 and CUP No. 2023-
03.
P. The City Council determines that the following findings, which must be
established in order to grant this CUP pursuant to SAMC Sections 41-638 and
41-645, cannot be established for modification to CUP No. 2019-41 to allow the
construction of a new service station and CUP No. 2023-03 to allow a land use
that requires a regional, state, or federal permit to handle, store, emit or
discharge regulated compounds, materials, chemicals, or substances within
500 linear feet of a public park, school (k-12), or residential zone, at 2230 North
Tustin Avenue in the C5 zoning district:
That the proposed use will be detrimental to the health, safety, or
general welfare of persons residing or working in the vicinity.
The proposed project will be detrimental to the health, safety, or
general welfare of persons residing or working in the vicinity.
The location of the proposed service station is within the vicinity
of an existing child-care facility and a residential neighborhood.
The proposed use will introduce potential health impacts to
occupants and owners of surrounding properties, including staff
and children of the adjacent child care facility. As part of the
proposal, the applicant did not submit any studies or additional
information to evaluate potential impacts onto surrounding
properties, including the adjacent child care facility. Technical
studies such as a health risk assessment, air quality
assessment, or noise study were not provided with the
application.
Resolution No. 2023-066
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These findings support several goals and policies outlined in the
General Plan. Goal 1 of the Conservation Element ("CN")
supports the protection of air resources, improve regional and
local air quality, and minimize the impacts of climate change.
The proposed project will not improve local air quality as the
regular operations of a service station are associated with the
management of hazardous substances. Policy 1.5 of the
Conservation Element encourages the study of impacts of
stationary and non -stationary emission sources on existing
and proposed sensitive uses and opportunities to minimize
health and safety risks as well as developing and adopting
new regulations avoiding the siting of facilities that potentially
emit increased pollution near sensitive receptors within
environmental justice area boundaries. The proposed project
does not minimize health and safety risks that can contribute
to increased pollution near sensitive receptors. As stated
earlier, the applicant did not submit any studies or additional
information to evaluate potential impacts onto surrounding
properties, including the adjacent child care facility. Technical
studies such as a health risk assessment or air quality
assessment were not provided with the application.
Goal 2 of the Safety Element ("S") supports the protection of
residents and environmental resources from contaminated
hazardous material sites and minimize risks associated with
the use, production, storage, transport, and disposal of
hazardous materials. Policy 2.6 of the Safety Element
supports the determination of the presence of hazardous
materials and/or waste contamination prior to approval of new
uses and require appropriate measures be taken to protect
the health and safety of site users and the community. The
proposed project will not take appropriate measures to protect
the health and safety of the surrounding community. The
project, including the proposed reconfiguration of the site, fails
to contribute to a stronger protection of local air quality,
minimizes environmental impacts associated with the
business, and will be detrimental to the existing community.
2. That the proposed use will adversely affect the present economic
stability or future economic development of properties surrounding the
area.
The service station will adversely affect the economic
stability or future economic development of properties in the
surrounding area. The existence of a service station near a
child-care facility, including secondary impacts resulting from
fueling operations, fuel deliveries, and convenience store
deliveries, will create noise and vibration impacts on
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Page 4 of 7
surrounding properties, including the adjacent child care
facility therefore negatively impacting business operations of
the adjacent properties.
These findings support several goals and policies outlined in
the General Plan. Goal 1 of the Land Use Element ("LU")
encourages a land use plan that improves quality of life and
respects our existing community. Policy 1.1 supports the
compatibility between land uses to enhance livability and
promote healthy lifestyles. The proposed project land use is
not compatible with the surrounding community. Goal 2 of
the Land Use Element encourages a balance of land uses
that meet Santa Ana's diverse needs. Policy 2.2 of the Land
Use Element encourages a range of commercial uses to
capture a greater share of local spending and offer a range
of employment opportunities. The proposed project is
located near four other service stations within a half -mile
area and will contribute to an overconcentration of the
service stations in the area. Policy 2.7 of the Land Use
Element supports land use decisions that encourage the
creation, development, and retention of business in Santa
Ana. The proposed project will contribute negatively to a
neighboring existing business. Policy 3.7 of the Land Use
Element promotes a clean, safe, and creative environment
for Santa Ana's residents, workers, and visitors. The
proposed project may also contribute to the increase in
presence of the unhoused population in the area and near a
child care facility as well as residences.
Goal 4 of the Mobility Element ("M") coordinates
transportation planning efforts with land use and design
strategies that encourage sustainable development and
achieve broader community goals. Policy 4.9 of the Mobility
Element supports the utilization of land use, building, site
planning, and technology solutions to mitigate exposure to
transportation -related air pollution, especially in
environmental justice focus areas. The proposed project will
contribute to the increase in vehicular traffic in the area and
negatively affect the surrounding businesses.
Section 2. In accordance with the California Environmental Quality Act (CEQA)
and the CEQA Guidelines, this project is exempt from further review under Section
15061(b)(4) of the CEQA Guidelines, as the City Council has denied modification to CUP
No. 2019-41 and CUP No. 2023-03.
Resolution No. 2023-066
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Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or
any of its officials, officers, employees, agents, departments, agencies, authorized
volunteers, and instrumentalities thereof, harmless from any and all claims, demands,
lawsuits, writs of mandamus, referendum, and other proceedings (whether legal,
equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute
resolution procedures (including, but not limited to arbitrations, mediations, and such
other procedures), judgments, orders, and decisions (collectively "Actions"), brought
against the City and/or any of its officials, officers, employees, agents, departments,
agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set
aside, void, or annul, any action of, or any permit or approval issued by the City and/or
any of its officials, officers, employees, agents, departments, agencies, and
instrumentalities thereof (including actions approved by the voters of the City) for or
concerning the project, whether such Actions are brought under the Ralph M. Brown Act,
California Environmental Quality Act, the Planning and Zoning Law, Code of Civil
Procedure sections 1085 or 1094.5, or any other federal, state or local constitution,
statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent
jurisdiction. It is expressly agreed that the City shall have the right to approve the legal
counsel providing the City's defense, and that Applicant shall reimburse the City for any
costs and expenses directly and necessarily incurred by the City in the course of the
defense. City shall promptly notify the Applicant of any Action brought and City shall
cooperate with Applicant in the defense of the Action.
Section 4. The City Council of the City of Santa Ana hereby upholds the
determination of the Planning Commission and denies modification to CUP No. 2019-41,
denies CUP No. 2023-03, and denies APPL No. 2023-06.
ADOPTED this 3rd day of October, 2023.
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By: &iwdW, A .
4p�, Jose Montoya
Assistant City Attorney
Resolution No. 2023-066
Page 6 of 7
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
Amezcua, Bacerra, Hernandez,
Penaloza, Vazquez (5)
None (0)
Lopez, Phan (2)
NOT PRESENT: Councilmembers None (0)
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, JENNIFER L. HALL, City Clerk, do hereby attest to and certify the attached
Resolution No. 2023-066 to be the original resolution adopted by the City Council of the
City of Santa Ana on October 03, 2023.
Date: ld��a �Z
�� Jennifer L. all
.ty Gib
City of Santa Ana
Resolution No. 2023-066
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