Loading...
HomeMy WebLinkAboutNovember 1, 2005�wu�+wy MEETING AGENDA Arcadia City Council /Redevelopment Agency EIF TUESDAY, NOVEMBER I 2005 This agenda contains a summary of each item of business which the Council may discuss or act on at this meeting. The complete staff report and all other written documentation relating to each item on this agenda are on file in the office of the City Clerk and the reference desk at the Arcadia Public Library and are available for public inspection and review. If you have any questions regarding any matter on the agenda, please call the office of the City Clerk at (626) 574 -5455. In compliance with the Americans with Disabilities Act, If you need special assistance to participate in a City Council meeting, please contact the City Manager's office at (626) 574 -5401 at least three (3) business days before the meeting or time when special services are needed. This notification will help City staff in making reasonable arrangements to provide you with access to the meeting. 6:00 p.m., City Council Chamber Conference Room ROLL CALL AUDIENCE PARTICIPATION - (5 minutes per person) . CLOSED SESSION a. Conference with Real Property Negotiators (Government Code Section 54956.8) Property: 55 W. Huntington Drive 21 Morlan Place 28 W. Santa Clara Street 41 W. Huntington Drive 35 W. Huntington Drive 27 W. Huntington Drive 101 W. Huntington Drive 103 W. Huntington Drive Negotiating Parties - Agency Property Owner: Paul Rusnak Hann Ling Shaw (Church in Arcadia) Don and Ray Dahlgren Mrs. Robert Johannsen /Manuel De Jesus Romero Gary and Dan Braun (35 W. Huntington Partners) Richard Fisher (Templekadian) Charles Frandson James Dorr Deputy Executive Director and Economic Development Manager Under Negotiation - Price and terms of payment 7:00 p.m. in the Council Chamber PLEDGE OF ALLEGIANCE ROLL CALL SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS REPORT FROM CLOSED SESSION (AS NECESSARY) MOTION TO READ ALL ORDINANCES /RESOLUTIONS BY TITLE ONLY AND WAIVE READING IN FULL PRESENTATIONS a. Presentation of Proclamation to Arcadia Festival of- Bands. 1. PUBLIC HEARING - CITY COUNCIL All interested persons are invited to appear at the Public Hearing and to provide'evidence or testimony concerning the proposed Items of consideration. You are hereby advised that should you desire to legally challenge any action taken by the City Council with respect to any Public Hearing Item on this agenda, you may be limited to raising only those issues and objections which you or someone else raised at or prior to the time of the Public Hearing. a. An appeal of Plannino Commission's denial to retain an on -site storage container for the DurDOSe of securing business records at 657 W. Duarte Road. Recommendation: Deny appeal b. Resolution No. 6489, adopting false security alarm fees for the Police Department. Recommendation: Adopt AUDIENCE PARTICIPATION - (S minutes per person) REPORTS FROM ELECTED OFFICIALS 2. CONSENT CALENDAR - ARCADIA REDEVELOPMENT AGENCY a. Minutes of the October 18. 2005 Regular Meeting. Recommendation: Approve b. Resolution No. ARA 217, Amendment No. 1 to the Land Assembly and Development Agreement between the Arcadia Redevelopment Agency and Paul P. Rusnak and Rusnak/Arcadla. Recommendation: Adopt CONSENT CALENDAR - CITY COUNCIL C. Minutes of the October 18, 2005 Regular Meeting. Recommendation: Approve d. Ordinance No. 2212. amending Section 3907 of the Arcadia Municipal Code concerning false security alarms, Recommendation: Introduce e. Purchase one (1) asphalt grinding machine from Asphalt Zipper Inc. in the amount of $65,950. Recommendation: Approve f. Purchase two (2) pick -up trucks with utility bodies in the amount of $49.693.42 from Pasadena Ford. Recommendation: Approve g. Authorize a change order in the amount of $41.210 to RBF Consulting to provide engineering support services for the construction of Santa Anita Reservoir No 4. Recommendation: Approve h. Award a contract in the amount of $300.000 to General Pump Company, Inc. to provide preventive maintenance services and repair of City owned water wells and booster pump Recommendation: Approve 3. CITY MANAGER a. Ordinance No 2211 amending Sections of Arcadia Municipal Code pertaining to Adult Businesses and adding a new Chapter to the Arcadia Municipal Code pertaining to Licensing of Adult Businesses, Recommendation: Introduce ADJOURNMENT The City Council will adjourn this meeting to November 15, 2005, 6:00 p.m. In the Council Chamber Conference Room. CLOSED SESSION - CANCELLED ANNOTATED AGENDA Arcadia City Council/ Redevelopment Agency TUESDAY, NOVEMBER 1, 2005 nw MOTION TO READ ALL ORDINANCES /RESOLUTIONS BY TITLE ONLY AND WAIVE READING IN FULL APPROVED 5 -0 1. PUBLIC HEARING - CITY COUNCIL a. An appeal of Planning Commission's denial to retain an on -site storaae container for the purpose o APPROVED THE securina business records at 657 W Duarte Road DENIAL OF THE APPEAL; OWNER HAS 6 MONTHS TO REMOVE CONTAINER 5 -0 Recommendation: Deny appeal b. Resolution No 6489 adQptino false security alarm fees for the Police Department APPROVED 5 - 0 Recommendation: Adopt 2. CONSENT CALENDAR - ARCADIA REDEVELOPMENT AGENCY a. Minutes of the October 18. 2005 Reoular Meeting. APPROVED 5 - 0 Recommendation: Approve b. Resolution No ARA 217 A Resolution of the Arcadia Redevelopment Agency of the City of Arcadia California aoorovina Amendment No 1 to a certain Land Assembly and Development Aareement with Paul P. Rusnak and Rusnak/Arcadia. APPROVED 5 - 0 Recommendation: Adopt CONSENT CALENDAR - CITY COUNCIL C. Minutes of the October 18. 2005 Reaular Meeting. APPROVED 5 - 0 Recommendation: Approve d. Ordinance No 2212 amending Section 3907 of the Arcadia Municipal Code concerning false security alarms. APPROVED - 0 Recommendation: Introduce - e. Purchase one (1) asphalt arinding machine from Asphalt Zipper Inc in the amount of $65.95 APPROVED 5 - 0 Recommendation: Approve f. Purchase two 2 pick-up trucks with utility bodies in the amount of $49.693.42 from Pasadena Ford APPROVED 5 - 0 Recommendation: Approve g. Authorize a change order in the amount of $41,210 to RBF Consulting to provide engineerino support services for the construction of Santa Anita Reservoir No, 4 APPROVED 5 - 0 Recommendation: Approve h. Award a contract in the amount of $300 000 to General Pump Company. Inc. to provide preventiv maintenance services and repair of City owned water wells and booster Dumps APPROVED 5 - 0 Recommendation: Approve 3. CITY MANAGER a. Ordinance No 2211. amendina Sections of Arcadia Municioal Code pertaining to Adult Businesses and adding a new Chapter to the Arcadia Municipal Code pertaining to Licensing of Adult Businesses APPROVED 5 - 0 Recommendation: Introduce 47:0098 R +� IRcvvn! r,-y CLOSED SESSION - CANCELLED MINUTES Arcadia City Council/ Redevelopment Agency TUESDAY, NOVEMBER 1, 2005 6:00 p.m., City Council Chamber Conference Room 7:00 p.m. In the Council Chamber INVOCATION Reverend Gene Wallace, Arcadia Episcopal'Church of the Transfiguration PLEDGE OF ALLEGIANCE Vida Tolman, Chief Deputy City Clerk/Records Manager ROLL CALL PRESENT: Council /Agency Members Chandler, Kovacic, Marshall, Segal, and Wuo ABSENT: None SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS None. REPORT FROM CLOSED SESSION (AS NECESSARY) Steve Deitsch, City Attorney, reported that tonight's Closed Session was cancelled. There was no reportable action taken by the City Council. MOTION TO READ ALL ORDINANCES/ RESOLUTIONS BY TIRE ONLY AND WAIVE READING IN FULL A motion was made by Council Member Chandler, seconded by Council Member Marshall, and carried without objection to read all ordinances /resolutions by title only and waive reading In full. PRESENTATIONS a. Presentation of Proclamation to Arcadia Festival of Bands. I. PUBLIC HEARING - CITY COUNCIL All interested persons are invited to appear.at the Public Hearing and to provide evidence or testimony concerning the proposed items of consideration. You are hereby advised that should you desire to legally challenge any action taken by the City Council, with respect to any Public Hearing item on this agenda, you may be limited to raising only those issues and objections which you or someone else raised at or prior to the time of the Public Hearing. a. An appeal of Plannino cnmmission's aerial to retain an on -sne sroraae contain tar Lily uurw� V1 securing business records at 657 W Duarte Road, Recommendation: Deny appeal Staff Report Don Penman, Assistant City Manager /Development Services Director, Donna Butler, Community Development Administrator, and Corky Nicholson, Planning Services Manager, appeared to present the staff report. Staff noted that the Planning Commission denied the subject application referenced above because it was determined that the storage container is unsightly and not a suitable means for outdoor storage; staff Is recommending that the City Council uphold the decision made by, the Planning Commission to deny the Conditional Use Permit Application No. 05 -14. In response to a question from Council Member Kovacic, Steve Deitsch, City Attorney, noted that no staff member has the lawful authority to exceed the Arcadia Municipal Code and such action by a staff member would not legally bind the City. In response to a question from Council Member Chandler, staff noted that large bins, such as the one in this matter, are not permitted by the City. I 11 -01 -05 47:0099 Public Testimony Joe Borland. Arcadia resident, as the appellant in this matter, appeared to speak in support of approval of Conditional Use Permit No. 05-14. Dan Sheh• business owner at 657 West Duarte Road, appeared to speak in support of approval of Conditional Use Permit No. 05 -14. Brian Myans, property manager for 657 West Duarte Road, appeared to speak in support of approval of Conditional Use Permit No. 05 -14. Joan Markowitz, former business owner on West Duarte Road, appeared to speak in support of approval of Conditional Use Permit No. 05 -14. Motion to Close An initial motion to close the public hearing was made and withdrawn by Coundl Member Kovacic. Public Hearing Council Member Marshall inquired of the appellant if he had considered microfilming as a method of document storage. It was moved by Council Member Kovadc, seconded by Council Member Chandler, and carded without objection to close the public hearing. _ City Council Steve Deitsch, City Attorney, reviewed the matter in light of the material questions presented to the City Council; he Deliberation noted that local zoning ordinances do not apply to school districts; he further noted that the City Council should focus on the findings made by the Planning Commission as well as the finding the Council must make in order to approve or deny the Conditional Use Permit Application under review in this matter. In response to an inquiry from Council Member Kovadc, staff responded that the type of storage container under review in this matter is not legal in the City of Arcadia, and if Council were to grant such a permit, that it would be provided for under the Conditional Use Permit application process; the City Council would. have to make certain findings to grant a Conditional Use Permit. In response to an inquiry from Council Member Kovacic, Mr. Deitsch noted that time limits cannot be placed upon findings to approve Conditional Use Permits, and that a period of "months" would be a reasonable time limit under the law to remove an "offending use" should Council make the motion to deny the appeal. - Council Member Marshall noted that the use of document imaging technology would reduce the appellant's storage needs for files. Council Member Segal noted the convenience of the storage container, but also acknowledged the impacts that approving the appeal would place on the City. Motion A motion was made by Council Member Chandler and seconded by Council Member Marshall to deny the appeal. Council Member Kovacic proposed an amendment to the motion, which would allow the appellant six (6) months to remove the storage container from the subject property. An amended motion was made by Council Member Chandler, seconded by Council Member Marshall, and carried on roll call vote to deny the appeal of Conditional Use .Permit Application No. 05 -14 and uphold the Planning Commission's denial of the subject application based on the determination that the storage container is unsightly and not a suitable means for outdoor storage at the site; the appellant has six (6) months to remove the storage container. Roll Call AYES: Coundl /Agency Members Chandler, Marshall, Kovadc, Segal, and Wuo NOES: None. b. Resolution No. 6489, adopting false security alarm fees for the Police Department Recommendation: Adopt Staff Report Bob Sanderson, Police Chief, appeared to present the staff report; staff noted that the administrative response to false alarms can deplete the patrol strength, thus depriving resident and visitors appropriate and timely access to emergency services; staff recommends the increase in false security alarm fees. In response to an inquiry from Council Member Marshall, Chief Sanderson outlined the methodology used to calculate the false alarm fee. Public Testimony None. 11 -01 -05 47:00100 Motion to Close It was moved by Council Member Chandler, seconded by Council Member Segal, and carried without objection to Public Hearing dose the public hearing. city Council None. Deliberation - Motion It was moved by Council Member Chandler, seconded by Council Member Marshall, and carried on, roll call vote to adopt a resolution of the City Council of the City of Arcadia, California, adopting the false security alarm fees for the Arcadia Police Department. Roll Call AYES: Council /Agency Members Chandler, Marshall, Kovacic, Segal, and Wuo NOES: None.' AUDIENCE PARTICIPATION - (S minutes per person) Belo Mews and Emily Stork, representatives from the San Gabriel Habitat for Humanity Organization, appeared to invite the City Council to the dedication of a Habitat for Humanity project in Glendale, California. REPORTS FROM ELECTED OFFICIALS MARSHALL, No report this evening. CHANDLER No report this evening. KOVACIC Noted that the Boy Scouts of America will be honoring the Arcadia Rotary on November 17, 2005. SEGAL Invited the public to two upcoming public meetings: November 15, 2005, at which the Council will discuss single- - family design review, and November 16, 2005, where developers of proposed projects at the Santa Anita Racetrack and Westfield Shopping Center will present their ideas to the City Council. INUO Congratulated Recreation staff for their Halloween activities at the Community Center; reminded Arcadia residents about observing traffic safety rules, especially around schools. 2. - CONSENT CALENDAR - ARCADIA REDEVELOPMENT AGENCY a. Minutes of the October 18 2005 Regular Meetina Recommendation: Approve b. Resolution No ARA 217 A Resolution of the Arcadia Redevelopment Agency of the City of Arcadia. Recommendation: Adopt CONSENT CALENDAR - CITY COUNCIL C. Minutes of the Ouober 18.2005 Regular Meeting Recommendation: Approve d. Ordinance No 2212 amending Section 3907 of the Arcadia Municipal Code concerning false security alarms. Recommendation: Introduce e, Purchase (1) asphalt grinding machine from Asphalt Ziooer Inc in the amount of $65,950, Recommendation: Approve f, Purchase two (2) pick -up trucks with utility bodies in the amount of $49 693.42 from Pasadena Ford. Recommendation: Approve g. Authorize a change order in the amount of $41,210 to RBF Consulting to provide engineering support services for the construction of Santa Anita Reservoir No. 4. Recommendation: Approve h. Award a contract in the amount of $300.000 to General Pump Comoanv Inc to provide preventive maintenance sexy es and repair of City-owned water wells and booster Dumps. Recommendation: Approve 11 -01 -05 47:00101 Motion It was moved by Council /Agency Member Chandler, seconded by Council /Agency Member Segal, and carried on roll all vote to adopt the Arcadia Redevelopment Agency and City Council Consent Calendars in full Roll Call AYES: Council /Agency Members Chandler, Segal, Kovacic, Marshall, and Wuo NOES: None. 3. QTYMANAGER a. Ordinance No. 2211 amending Sections of Arcadia Municipal Code pertaining to Adult Businesses and Steve Deitsch, City Attorney, presented the report; he noted that the Ordinance moves the Adult Business language from the zoning code to a more applicable business license portion of the Municipal Code; it also provides provisions for restricting adult - oriented materials to minors; staff recommends introduction of the Ordinance. Motion It was moved by Council /Agency Member Segal, seconded by Council /Agency Member Marshall, and carried on roll call vote to introduce Ordinance No. 2211 amending sections of the Arcadia Municipal Code pertaining to Adult Businesses and adding a new chapter to the Arcadia Municipal Code pertaining to the Licensing of Adult Businesses.. Roll Call AYES: Council /Agency Members Segal, Marshall, Chandler,Kovacic, and Wuo NOES: None. ADJOURNMENT The City Council adjourned this meeting at 8:57 p.m. to November 15, 2005, 6:00 p.m. in the Council Chamber Conference Room. lames H, Barrows, City Clerk V L4' - FiI�w 444' By: Vida Tolman Chief Deputy City Clerk/Records Manager q 11 -01.05 November 1, 2005 STAFF REPORT Development Services Department TO: Mayor and City Council FROM: Don Penman, Assistant City Manager /Development Services Director Donna L. Butler, Community Development Administrator By: Corkran W. Nicholson, Planning Services Manager . SUBJECT: An appeal of the Planning Commission's denial of Conditional Use Permit Application No. 05 -14 for the outdoor use of an existing metal storage container at 657 West Duarte Road. Recommendation: Deny the appeal SUMMARY The property owner, Mr. Joe Borland, is appealing the Planning Commission's denial of Conditional Use Permit Application No. 05 -14 to retain an on -site lo'xlo'x20' storage container for the purpose of securing business records at 657 West Duarte Road, The Planning Commission denied the subject application because it was determined that the storage container is unsightly and not a suitable means for outdoor storage at the site. The Development Services Department is recommending denial of the applicant's appeal. BACKGROUND The following sequence of events have transpired as the result of Code Services pursuing the use of the subject storage container at 657 West Duarte Road: • A complaint was filed with Code Services during the later part of July 2004 regarding the outdoor storage of numerous items at the subject property, including the subject storage container. Following a site inspection by Code Services the applicant was sent a Notice of Violation on July 27, 2004, for the accumulation of on -site debris, and the storage of two boats, a recreational vehicle, and the metal storage container. All of the items were stored behind the site's commercial building (seethe attached photos). • On August 17, 2004, a re- inspection of the site was conducted and non - compliance was noted; therefore, a second Notice of Violation was sent to the applicant. A re- inspection of the site was conducted on September 1, 2004, which resulted in third Notice of Violation being sent to the applicant due to non - compliance. • On September 27, 2004, a re- inspection of the site was conducted, which found the site still in violation. Per the applicant's request an extension was granted to October 20, 2004. • On October 20, 2004, a citation was issued to the applicant because the site was still in non - compliance with the original Notice of Violation. • On November 11, 2004, the applicant filed a request for an administrative hearing to contest the citation that was issued for the ongoing non - compliance issues. • Another re- inspection of the site was conducted on January 10, 2005, at which time it was noted that the boats, recreational vehicle, and some of the debris had been removed from the site. The remaining items were the metal storage container and a small pile of metal light poles. • On January 12, 2005, the City Attorney sent a final notice to the applicant requesting that the storage container and the remaining debris on the property be removed by January 24, 2005. • A re- inspection of the site was conducted on January 24, 2005, which found the metal storage container and light poles still remaining at the site. The continued non- compliance resulted in the case being forwarded to the City Attorney for the purpose of filing a criminal complaint. • On February 8, 2005, the City Attorney spoke with the applicant by telephone, and as a courtesy extended the compliance date to April 30, 2005. • The hearing for the applicant to contest the issued citation was held on April 20, 2005, at which time staff informed the hearing officer that the only remaining issue was the storage container since the applicant had recently remove the light poles from the site. After a brief deliberation the hearing was continued to May 18, 2005 for the purpose of obtaining further clarification on questionable Municipal Code requirements. On May 18, 2005, the hearing officer upheld the citation, and requested that the applicant either remove the storage container or obtain an appropriate use permit for the outdoor storage of the container. The applicant submitted Conditional Use Permit Application No. 05 -14 on June 20, 2005 to consider his request to retain the existing storage container at the subject location. Appeal /CUP 05 -14 November 1, 2005 Page 2 • The Planning Commission, at its August 9, 2005 meeting, voted 4 -0 with one member absent to deny Conditional Use Permit Application No. 05 -14. • On September 21, 2005, the applicant filed his appeal The background information provided by the applicant, mentions that the National Cash Register Company originally occupied the building in the early 1960's and used the storage container to secure cash registers that needed repair. In 1971,, the applicant leased the subject container to store business records from his physical therapy practice across the street at 660 West Duarte Road. The applicant purchased the subject property with the storage container in 1980, and continues to only use the container for storing records from his off -site physical therapy practice. According to the applicant the storage container has been in the same location for 45 years. The applicant is seeking a conditional use permit to retain the 10'x10'x20' metal storage container at the subject location for the purpose of storing business records. If a conditional use permit (CUP) was granted, the storage container will remain directly behind the site's commercial building, as shown on the submitted site plan (copy attached). The site's non - conforming parking area provides a total of 23 substandard parking spaces, which does not include the 10'x20' space being occupied by the storage container. The parking area is in need of repair and should be resurfaced, re- striped, and provided with a trash enclosure if the applicant's request is approved. Under the current parking requirements the site's 7,000 sq. ft. commercial building, which is currently occupied by a music store, requires 35 spaces. Based on staff's research the use of a storage container for outdoor storage purposes has never been a permitted use by right. Since 1980 outdoor storage of any item in a commercial zone has only been permitted on a conditional use permit basis. The applicant has stated that the subject storage container has existed in the same location for 45 years; however, a 1985 aerial photo (copy attached) shows the site without any storage container, which makes the duration of time that the storage container has existed on the site questionable. Also, staff did not find any documentation to verify any past approval from the City for the storage container to be located on the site. After conducting several recent site inspections of the property, it is staffs opinion that the storage container is unsightly and not a suitable means for outdoor storage because it is difficult to completely screen the unit from public view. The storage container is highly visible from the neighboring properties to the north and west of the site, which are approximately 2 to 3 feet higher in grade elevation than the subject property. Also, staff feels that approval of such a container could set a precedent especially with regards to the automobile service businesses throughout the City that frequently inquire about the use of similar storage containers. Appeal /CUP 05 -14 November 1, 2005 . Page 3 ENVIRONMENTAL IMPACT Pursuant to the provisions of the California Environmental Quality Act, the Development Services Department has determined that the proposed use will not have a potential for causing a significant effect on the environment, and is categorically exempt from CEQA per Section 15311. FINDINGS Storage containers are required to be within a building in accordance with Municipal Code Section 9263.6.5, which reads as follows: "All permanent and temporary storage of wares, merchandise, equipment, storage containers and similar items shall be within a building. The use of temporary storage bins, sheds, shipping containers, semi trailers and trailers and /or temporary buildings is not permitted." Based on a liberal interpretation of "Outdoor Storage" the applicant was provided the opportunity to apply for a CUP as an alternative. Section 9275.1.2 of the Arcadia Municipal Code requires that for a Conditional Use Permit to be granted, it must be found that all of the following prerequisite conditions can be satisfied: 1. That the granting of such Conditional Use Permit will not be detrimental to the public health or welfare or injurious to the property or improvements in such zone or vicinity. 2. That the use applied for at the location indicated is properly one for which a Conditional Use Permit is authorized. 3. That the site for the proposed use is adequate in size and shape to accommodate said use, and all yards, spaces, walls, fences, parking, loading, landscaping, and other features required to adjust said use with the land and uses in the neighborhood. 4. That the site abuts streets and highways adequate. in width and pavement type to carry the kind of traffic generated by the proposed use. 5. That the granting of such Conditional Use Permit will not adversely affect the comprehensive General Plan. Planning Commission Resolution No. 1733 (copy attached) sets forth the Commission's findings for their denial of the subject application. RECOMMENDATION The Development .Services Department recommends denial of Conditional Use Permit Application No. CUP 05 -14 because the existing storage container is not a suitable means for outdoor storage at the site; and therefore It should be removed to bring the subject property into compliance, as required by the above - mentioned Code Section 9263.6.5. Appeal /CUP 05 -14 November 1, 2005 Page 4 If the City Council determines that based on evidence presented this is an appropriate use at the site and move to approve Conditional Use Permit No. 05 -14, staff recommends the following conditions of approval: 1. That the applicant shall upgrade the existing parking lot by resurfacing, re- striping, and constructing a trash enclosure in accordance with all applicable Municipal Code requirements. This work shall be completed within 60 days from the adoption of the resolution, and subject to the satisfaction of the Community Development Administrator or his /her designee. 2. The applicant shall repaint the storage container to match the exterior of the 657 building within the same period of time that is set forth for the completion of the parking lot improvements, and subject to the satisfaction of the Community Development Administrator or his /her designee. 3. The applicant shall comply with the condition of approval imposed by the Fire .Department memorandum, dated July 6, 2005, 4. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and /or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action,,or proceeding concerning the project and /or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. 5. Approval of CUP 05 -14 shall not take effect until the property owner(s), and applicant have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of the conditions of approval. CITY COUNCIL ACTION Approval If the City Council intends to approve the appeal, the Council should find that the prerequisite conditions could be satisfied, move to approve the appeal subject to the conditions set forth above, or as modified by the Council, and direct staff to prepare a resolution incorporating the Council's decision and specific findings. Appeal /CUP 05 -14 November 1, 2005 Page 5 Denial If the City Council intends to deny the appeal, the Council should state the specific reasons for denial and direct staff to prepare the appropriate resolution incorporating the Council's decision and specific findings. If any Planning Commissioner, or other interested party has any questions or comments regarding this matter prior to the August 9 t " public hearing, please contact Planning Services at (626) 574 -5423. Approved by: William R. Kelly, City Manager Attachments: 1. Applicant's letter of appeal with a background summary, and several letters in favor of the CUP 2. City Attorney's response to the applicant's inquiry regarding the use of storage containers 3. Planning Commission Minutes of August 9, 2005 4. Planning Commission Resolution No. 1733 5. Fire Department memorandum, dated July 6, 2005 6. Aerial Photo & Zoning Map 7. Land Use Map 8. Plot Plan 9. Current aerial photo of the site 10. Aerial photo of the site, dated 1985 11. Photographs of the site 12. Preliminary Exemption Assessment 13. Environmental Information Appeal /CUP 05 -14 November 1, 2005 Page 6 City of Arcadia City Council 240 W. Huntington Dr. Arcadia, Ca. 91066 -6021 September 20, 2005 Re: Conditional Use.Permit Application No. 05 -14; Appeal of Planning Commission Resolution No. 1733 Dear City Council Members: I hereby appeal the denial of my Conditional Use Permit application No. 05 -14. My appeal is based on the following considerations: 1.) The container that is the subject of this appeal has been in place for over 44 years. My use and occupancy has pre - dated any ordinance that you are imposing on me. There should be a grandfather provision to allow an inoffensive pre - existing secure container to remain. This secure container has never been considered as a problem nor unsightly, contrary to the subjective comment in the staff report. It is not an unsightly secure container and it is behind the building and a wall in the middle of the block. 2.) However; there are many similar containers around the city that are used by schools, hospitals, fire stations, churches, and City Yard, all of which are in MI view and need of repair to include rental signs on each of them. I have been told that these entities are exempt.. I have requested from the City Attorney the ordinance that allows the exemption, but he has not provided anything. 3.) This container is behind the existing 657 Bldg. and has been in that location since the bidg..was erected in 1961. No changes have been made to the building or parking lot spaces that were approved in 1961. According to the tenant of 10 years Mr. Dan Hsieh, "There has never been a parking problem on this property". In fact, this secure container is in the middle of the block and cannot-be seen from Duarte on the south, Baldwin on the west, Arcadia Ave. on the north and the bldg. on the east. 4.) During the formal CUP process "no negative responses to the CUP application" were sent to the City by any property owner nor any tenants within the 300 yard radius. During the hearing, however, there were 2 written letters from tenants within the 300 yard area that were totally positive and 4 individuals that testified in favor of leaving the container where it has always been located & bothers no one. I have reviewed the provisions of Section 9275.1.2 of the Arcadia Municipal Code that outlines prerequisite conditions for issuance of a Conditional Use Permit and I believe that I have met all 5 of the conditions set forth. I will sign an acceptance form as published by the Development Services Department to indicate my awareness and acceptance of any conditions for approval. Your re- consideration of my application No. 05 -14 for a Conditional Use Permit for the use of an existing IO'x10'x20 metal storage container at 657 W. Duarte Road and this appeal is appreciated. RECEIVED SEP 21.2000 Z CITY OF ARCADIA Joe S. Borland CITY CLERK BACK GROUND This property was developed in 1960 by Mr. Upjohn. The 657 Building was built & Leased to the National Cash Register NCR until 1980 when Joe Borland RPT purchased the property & secure container. NCR used the secure container for a night drop for cash registers to be repaired and before work pick up. This secure container has been behind the 657 Building in the same location unchanged and unexpanded since that time, a total of 45 years.... Joe Borland Physical Therapist started his physical therapy medical practice and Borland's Retail with two business licenses in the City of Arcadia in 1971 . Mr. Upjohn was Borland's patient and also sold Borland a cash register that same year. On or about the same time Mr. Upjohn leased the secured container to Borland for his business since NCR now manufactured electronic units. This secure container has been in Borland's ownership for 34 years same location. In 1990 Rick Gomez, Development Services Director for City of Arcadia, Approved the concrete slab under the secure container. "NO" permit was required. Mr. Gomez at the same time did not object to the secure container nor the location behind the building, in fact he thought "the location was a good one for 30 years." Now it has been 45 years... Since then, 1971 Joe Borland Physical Therapy & Borland's retail has continued in business at this same location and maintains the property including being the property manager. Borland continues to have two businesses for the past 34 years and uses the secure container for those businesses, medical records. This conditional permit will not create precedent since it has existed since 1960 Piano - Gallerie CALIFORNIA MUSIC ACADEMY 657 West Duarte Road • Arcadia, CA 91007 VOICE: (626) 821 -9191 • FAX: (626) 821 -6606 September 20, 2005 City Council City of Arcadia 240 W. Huntington Dr. Arcadia, CA 91007 RE: CONDITIONAL USE PERMIT # 05 -14 Ladies and Gentlemen, I am the owner operator of Piano Gallerie /California Music Academy located at the subject address since 1996. During this passed 9+ years I have never received any comment, inquiry or complaint regarding the subject container. This subject container is tucked away in the rear of the building at 657 W. Duarte Rd. and is painted in the same color of the building blended in as part of the landscape. It is not visible from either Duarte Rd. or Baldwin Ave.. In addition, we never have any parking problem during these passed many years in business at the location. Your kind considerations and approval of this permit is just and appreciated. August 9, 2005 City of Arcadia 240 W Huntington Drive Arcadia, CA 91007 RE: Conditional Use Permit Hearing C.U. P #: 2005 -14 Gentlemen: I understand there is a concern about a security container located at 657 W Duarte Road being an "eyesore ". I have worked at 630 W Duarte Road for a total of 20 years, first as Branch Manager for Security Pacific National Bank, and now as Branch Manager for _ Citizens Business Bank. In all of that time, I have not noticed the security container that is in question, and have never heard any one of my customers express a concern about an "unsightly" container housed at 657 W Duarte Road. Sincerely, Dianne C. Chapman MESA Chiropractic September 21, 2005 City of Arcadia 240 W Huntington Drive Arcadia, CA 91007 RE: C.U.P. Hearing Dear Sirs: I have had my clinic at 638 West Duarte Road since September of 1990. During this time there has been no indication of activity around the security container at 657 West Duarte Road nor have there been complaints regarding such. Sincerely, W. David Goff D. . September 29, 2005 City of Arcadia Joe S Borland NZAC International, Inc. 657 West Duarte Road Arcadia, CA 91007 Re: Outdoor Storage Office of the City Attorney Stephen P. Deitsch City Attorney Dear Mr. Borland: I am pleased to respond to your letter dated September 14, 2005. In that letter, you request the City Attorney to provide to you the basis for exempting City properties, schools, fire stations, hospitals and churches from the requirements to obtain a conditional use permit ( "CUP ") from the City to place outdoor storage on property. Please find below a response to your inquiry. Regarding city property. It is generally accepted as a matter of law that neither the State nor its agencies are subject to local building or zoning regulations unless the State Legislature consents to such regulation. (See Hall v. City of Taft (1956) 47 Cal. 2d 177, 183; City of Orange v. Valenti (1974) 37 Ca1.App.3d 240, 244; Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417, 427). The City of Arcadia is a charter city with broad discretion in reserving unto itself policy and decision making that is deemed to be a "municipal affair" as a matter of law. The City has historically determined that City property, including but not limited to fire stations, is exempt from zoning regulations, and approval of a CUP is not required before placing outdoor storage on City property. Regarding schools The foregoing principle of law applies equally to schools, as they are agencies of the State. In addition, Government Code Section 53904 (a) provides in part that notwithstanding any other provision, the Government Code does not require a school district to comply with 240 West Huntington Drive Post Office Box 60021 Arcadia, CA 91066 -6021 (626) 574 -5407 (626) 446 -2991 Fax - Joe S. Borland September 29, 2005 Page 2 the zoning ordinances of a county or city. Therefore, schools are not required to obtain approval of a CUP before placing outdoor storage on school district property. Regardiniz hospitals The City of Arcadia Municipal Code places the property on which Methodist Hospital is located in an unclassified zoning designation. Such zoning designation requires the review and approval of activities on the property on a case by case basis. Approval of a CUP may not be required if the City determines that it is not appropriate or necessary. If the zoning classification for that property were changed to a commercial classification, approval of a CUP would be required. Therefore, currently the Hospital is not required to obtain a CUP before placing outdoor storage on its property. Regarding churches Like any other uses, churches require the approval of a CUP before placing outdoor storage on church property. Sincerely, Stephen P. Deitsch City Attorney c: Don Penman, Asst. City Manager /Dev.Srvs.Dir. Donna Butler, Community Development Administrator Corky Nicholson, Planning Services Manager September 14, 2005 Office of the City Attorney 240 West Huntington Drive Arcadia, California 91006 Dear Sir: The Arcadia Municipal code Sections 9266.2.7 and 9275.53.1 allow outdoor storage containers with an approved Conditional Use Permit. There are many such storage containers currently in use in Arcadia that have no Conditional Use Permit. The reason given to us by city officials is that city properties such as schools, fire stations, hospitals, churches, etc. are exempt from the requirement for a Conditional Use Permit. Our request is that the city of Arcadia's City Attorney provide us with the section or sections of the municipal code allowing the exemption for containers within the boundaries of the city of Arcadia. In addition, any state or federal code, law, or statute that has directed the city of Arcadia to exempt the above - mentioned entities. If you have any questions, please call me at (626) 445 -1978. 3. PUBLIC HEARING CUP 2005 -14 657 W. Duarte Rd. Joe Borland Consideration of a conditional use permit to retain an on -site storage container for the purpose of securing business records. The staff report was presented In reply to a question by Chairman Lucas, Mr. Nicholson stated that if they were to add on to the building, their parking requirements would increase and noted that the current parking is substandard. The storage container does not add to the square footage of the building, thus, it is not calculated in the required parking spaces but it does occupy a space. There were no permits issued for this container. The public hearing was opened. Joe Borland, 657 W. Duarte Rd., distributed material and photos to the Planning Commission. Ms. Butler mentioned that staff has had problems with the use of storage containers throughout the city, that are not in compliance, and staff is currently working on a number of similar issues. Mr. Borland said that he has been a physical therapist in the City for many years. The subject storage container is an area where medical records are stored that have to be destroyed and cannot be shredded. This secure container has been on this site since 1961, thus, when he acquired the property in 1980 it already existed. The aerial photo in the staff report does not show the storage container and that is probably because when it was taken, the container was picked up by the service that destroys the documents. He indicated that in as many years that he has owned this property he has never had one complaint about the storage container. He did not realize that this container was not permitted until July 2004. This container has been painted to match the building and is unobtrusive. The container is storing medical records for other medical practices as well as his own. Ms. Butler indicated that some of the photos that were submitted by Mr. Borland show containers on the outside of the buildings and explained that these are recycling bins with separate regulations and cannot be used as a comparison. Dan Hsaieh, 657 W. Duarte Rd., said that he is the owner and operator of a business on the subject property that has been there for the past 9 years. The container is painted the same color as the building and is non - intrusive and in fact he has never had anyone comment or question it. It blends in with the building and is not visible from the street. He was surprised when he heard of this hearing. Bryan Miles, 2055 Vista Ave, Sierra Madre, said that he has been a property manager since 1972 in the area and has managed this property since 1980. The staff report indicates that the container is unsightly but that is staff's opinion. Further, the report states that it is "not a suitable means for outdoor storage ", again this is staff s opinion. The report also includes an aerial photo of the area showing that the container is not there but it is clear that this was probably taken when the container was removed from the property to discard the records. The container is not visible from the street and is surrounded by walls. He attested to the fact that since he has been managing this property, the container has been there. Arcadia City Planning Commission 4 819.!5 In answer to a question by Chairman Lucas, Mr. Miles said that in his many years of experience as a property manager he has never heard of a similar complaint and felt that this was retaliatory. April Guzman, 9128 Hermosa Dr., Temple City, said that she is the manager at 660 W. Duarte Rd., and said that the container is not visible from her building. She did not view it as a hindrance or an eye sore. Joan Marcoita, 539 W. Palm Dr., Glendora, wanted to provide a character witness for Mr. Borland. This container is not visible and the only reason a complaint was made to the City about this container was because Mr. Borland made a complaint to the City about a neighbor. No one else spoke in favor of or in opposition to this item. MOTION: It was moved by Commissioner Olson, seconded by Commissioner Hsu to close the public hearing. The motion passed by voice vote with no one.dissenting. AYES: Commissioners Baderian, Hsu, Olson, Lucas NOES: None ABSENT: Commissioner Wen In reply to a question by Commissioner Baderian, Mr. Nicholson said that all of the 5 prerequisite conditions listed in the staff report must be satisfied to approve the CUP. Ms. Butler indicated that Finding No. 4 does not apply to this case. Mr. Nicholson said that the Fire Department's conditions of approval must be complied with if this request is approved. Commissioner Olson said that even though the parking deficiency is not an issue today, it could be in the future. The parking is already substandard by 23 spaces. Even though the container is not visible from the street, approving this could set a precedent. Just because the container has been there many years is not a justification for approval. Commissioner Baderian felt that the Planning Commission should be consistent. They have had other requests that have come before them for existing features that did not comply that were denied. He did not think that they should waiver from that policy. He was trying to see if a compromise could be reached but could not find one. MOTION: It was moved by Commissioner Olson; seconded by Commissioner Hsu to deny CUP 2005 -014 subject to the conditions in the staff report and direct staff to prepare the appropriate resolution. Arcadia City Planning Commission 5 8/9/5 ROLL CALL: AYES: Commissioners Baderian, Hsu, Olson, Lucas NOES: None ABSENT: Commissioner Wen Chairman Lucas noted that there is a five working day appeal period after the adoption of the resolution. The resolution will be adopted'on September 13 Appeals are to be filed by September 21". Arcadia City Planning Commission 6 &9/5 RESOLUTION NO. 1733 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, DENYING CONDITIONAL USE PERMIT NO. 05 -14 FOR THE OUTDOOR USE OF AN EXISTING METAL STORAGE CONTAINER AT 657 WEST DUARTE ROAD. WHEREAS, on June 20, 2005, a conditional use permit application was filed by the property owner, Joe Borland, to retain an on -site 10'x10'x20' metal storage container for the purpose of storing business records (Development Services Department Case No. C.U.P. 05 -14) at property commonly known as 657 West Duarte Road; and WHEREAS, a public hearing was held on August 9, 2005, at which time all interested persons were given full opportunity to be heard and to present evidence. NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA RESOLVES AS FOLLOWS: SECTION 1. That the factual data submitted by the Development Services Department in the attached report is true and correct. SECTION 2. This Commission finds: 1. That the granting of such Conditional Use Permit will be detrimental to the public health or welfare or injurious to the property or improvements in such zone or vicinity because the appearance of the outdoor storage container is unsightly and incompatible with the surrounding development; furthermore, the subject container is not screened from public view i.e., it is highly visible from the neighboring properties to the north and west of the site, which are approximately 2 to 3 feet higher in grade elevation than the subject property, which in this case increases the visibility of the storage container 2. That the use applied for at the location indicated is not a proper one for which a Conditional Use Permit is authorized because the storage container occupies a parking space within the site's substandard parking area, which currently provides 23 parking spaces (excluding the storage container space) in lieu of the current requirement to provide 35 on -site spaces, as specified in Sections 9269.1 et seq. of the Arcadia Municipal Code. SECTION 3. That for the foregoing reasons this Commission denies Conditional Use Permit No. CUP 05 -14 for the use of an existing 10'x10'x20' metal storage container at 657 West Duarte Road. SECTION 4. The decision, findings and conditions contained in this Resolution reflect the Commission's action of August 9, 2005, and the following votes: 2 1733 AYES: Commissioners Baderian, Hsu, Olson Lucas NOES: None ABSENT: Commissioner Wen SECTION 5. The Secretary shall certify to the adoption of this Resolution and shall cause a copy to be forwarded to the City Council of the City of Arcadia. I HEREBY CERTIFY that the forgoing Resolution was adopted at a regular meeting of the Planning Commission held on the 13` day of September 2005, by the following votes: AYES: NOES: ABSENT: Chairman, Planning Commission City of Arcadia ATTEST: Secretary, Planning Commission City of Arcadia APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 3 1733 City of Arcadia Fire Department David Lugo Fire Chief PROJECT REQUIREMENTS Arcadia Fire Department -Fire Prevention Bureau 710 South Santa Anita Ave, Arcadia, CA 91006 Ph (626) 574 -5104 Plan Check # CUP 06-014 Project Name Project Address Applicant Name Storage Container 657 W Duarte Rd Joe Borland Date - 716105 The following items listed below are required to be addressed before Fire Department Approval can be obtained. All changes shall be made on the original drawing (vellum). Pen or pencil corrections are not acceptable. A. Contents of container shall be stenciled in 6" high red lettering on north and east container sides, e.g. "OFFICE SUPPLIES ONLY". All plan check questions should be directed to Deputy Fire Marshal Mark Krikorian at (626) 574 -5104. Thank you. r MTd' M fa :r: it f; r r. : f _ s f k l C f f �S 3 1 1 MTd' M fa :r: dr _ s f k l MTd' M fa :r: ELI S� N pHIO'10 E _ _ � � W � Q Q n � U I I 3 I ;a � a I a I I I I y T L Existing storage container J w i � s I IL � nU 6 ` FBI _1 del° H I I 1 W. OUFRTE =� I Li G7 it mj i IL 2Q fiy pal i, �l T I - �r j 11 61 w r 13 AR Uc sw N} � h � � �4 V �4i F II T7j I Li G7 it mj i IL 2Q fiy pal i, �l T I - �r j 11 61 w r 13 AR Uc sw N} � h � � �4 V �4i ■ 2 - : - wq 11 Gym �'7-4 11 LL6 P 'l wq 11 Gym �'7-4 11 1 as a i 4�n MAY 9, 2005 MAY 9, 2005 L _ o-rx - ir•`' i �� FV }w k v ' zw- e a md�' 11 � ar F f r 4� 5 "° � x sv � � r " � ��, ,,. A ii !K q Fb x 4 7 k e e . x I 4' ale. xa5 PRELIMINARY EXEMPTION ASSESSMENT (Certificate of Determination when attached to Notice of Exemption) Name or description of project: Conditional Use Kermit Application No. 05 -14: The applicant is requesting a conditional use permit to retain an on -site 1 storage container at the subject location for the purpose of securing business records. Location: 657 West Duarte Road in the City of Arcadia. County of Los Angeles 3. Entity or person undertaking project: Q X B. Other (Private) (1) Name: Joe Borland (2) Address: 657 West Duarte Road Arcadia CA 91007 4. Staff Determination: The City's Staff, having undertaken and completed a preliminary review of this project in accordance with the City's "Local Guidelines for Implementing the California Environmental Quality Act (CEQA)" has concluded that this project does not require further environmental assessment because: a. The proposed action does not constitute a project under CEQA. b. The project is a Ministerial Project. C. The project is an Emergency Project. d. The project constitutes a feasibility or planning study. e. x The project is categorically exempt. Applicable Exemption Class: Class 11, Section 15311 f. The project is statutorily exempt. Applicable Exemption: g. The project is otherwise exempt on the following basis: h. The project involves another public agency, which constitutes the Lead Agency: Name of Lead Agency Date: June 29, 2005 Corkran Nicholson Planning Manager Staff 7)02 FILE N0. CITY OF ARCADIA 240 WEST HUNTINGTON DRIVE ARCADIA, CA 91007 (626) 574 -5400 ENVIRONMENTAL INFORMATION FORM Date Filed: (P Ito O General Information Name and address of developer or project sponsor: _Joe Borland Physical Therapy 2. Address of Project (Location): 657 W. Duarte Rd. , Arcadia CA 91007 3. Name, address and telephone number or person to be contacted concerning this project: Joe Borland 657 W. Duarte Rd.. Arcadia CA 91007 4. List and describe any other related permits and other public approvals required for this project, including those required by city, regional, state and federal agencies: 1990 Rick Gomez Development Services for City of Arcadia approved the concrete slab the secure container is on Gomez made no comment about secure container behind bldg. Zoning: C -2 General Commercial 6. General Plan Designation: Project Description Proposed use of site (project description): Secure container behind 657 Bldg. can not be seen from street. has been in same location unchanged & unexpanded since 1960 a total of 45 years. Site Size: 7 " _ Sq. Ft. 10x20 Feet Acre(s) Square footage per building: 200 Sq. Feet 10. Number of floor of construction: 11 11. Amount of off -street parking provided: 12. Proposed scheduling of project: Secured container has been behind 657 Blde in the same location unchanged & unexpanded since 1960 — 45 years. 13. Associated projects: 14. Anticipated incremental development: 15. If residential, included the number of units, schedule of unit sizes, range of sale prices or rents and type of house hold sized expected: 16. If commercial, indicated the type, i.e. neighborhood, city or regionally oriented, square footage of sales area, and loading facilities, hours of operation: By appointment - Commercial 17. If industrial, indicate type, estimated employment per shift, and loading facilities: 18. If institutional, indicate the major function, estimated employment per shift, estimated occupancy, loading facilities, and community benefits to be derived from the project: 19. If the project involves a variance, conditional use permit or zoning application, state this and indicate clearly why the application is required: After 45 vears and with Rick Gomez acceptance in 1990 the city has now re a conditional use permit to be submitted — ❑ 29. Use or disposal of potentially hazardous materials, such as toxic substances, flammable or explosives ❑ 30. Substantial change in demand for municipal services (police, fire, water, sewage, etc.) ❑ 31. Substantial increase in fossil fuel consumption, (electricity, oil, natural gas, etc.) ❑ ® 32. Relationship to a larger project or series of projects ❑ ® 33. Has a prior environmental impact report been prepared for a program, plan, policy or ordinance consistent with this project? ❑ ❑ 34. If you answered YES to question no. 33, may this project cause significant effects on the environment that were not examined in the prior EIR? Environmental Setting 35. Describe (on a separate sheet) the project site as it exists before the project, including information on topography, soil stability, plants and animals, any cultural, historical or scenic aspects. Describe any existing structures on the site, and the use of the structures. Attach photographs of the site. (Snapshots or Polaroid photos will be accepted.) 3 4io1 EnviruninfoFOrM items applicable to the project or its effects? Discuss below all items 20. Are the following (attach additional sheets as necessary). checked yes YES NO , ❑ ' 21. Change in existing features of any hills, or substantial alteration of ground contours. ❑ ® 22. change in scenic views or vistas from existing residential areas or public lands or roads. ❑ 23. Change in pattern, scale or character of general area of project. ❑ ® 24. Significant amounts of solid waste or litter. ❑ tD 25. Change in dust, ash, smoke, fumes or odors in vicinity. ❑ ® 26. Change in ground water quality or quantity, or alteration of existing drainage patterns. ❑ 27. Substantial change in existing noise or vibration levels in the vicinity, ❑ 28, is site on filled land or on any slopes of 10 percent or more? ❑ 29. Use or disposal of potentially hazardous materials, such as toxic substances, flammable or explosives ❑ 30. Substantial change in demand for municipal services (police, fire, water, sewage, etc.) ❑ 31. Substantial increase in fossil fuel consumption, (electricity, oil, natural gas, etc.) ❑ ® 32. Relationship to a larger project or series of projects ❑ ® 33. Has a prior environmental impact report been prepared for a program, plan, policy or ordinance consistent with this project? ❑ ❑ 34. If you answered YES to question no. 33, may this project cause significant effects on the environment that were not examined in the prior EIR? Environmental Setting 35. Describe (on a separate sheet) the project site as it exists before the project, including information on topography, soil stability, plants and animals, any cultural, historical or scenic aspects. Describe any existing structures on the site, and the use of the structures. Attach photographs of the site. (Snapshots or Polaroid photos will be accepted.) 3 4io1 EnviruninfoFOrM Answer to Question 35. f 35. The existing site is flat and surrounded by commercial development with a two story building on the north side, with parking lot and gas station on the west side and a 12 unit commercial rental on the east side. Security container has been behind the 657 bldg in the same location unchanged and unexpended since 1960, 45 years. * *Pictures Attached – Back Ground 36. Describe ( on a separate sheet) the surrounding properties, including information on plants, animals, any cultural, historical or scenic aspects. Indicate the type of land uses (residential, commercial, ect.), intensity of land use (one - family, apartment houses, shops, department stores, ect.), and scale of development (height, frontage, set - backs, rear yards, ect.). Attach photographs of the vicinity. Snapshots or Polaroid photos will be accepted. Answer: The surrounding properties are all commercial with variety of stores, restaurants, retail stores, ample parking spaces. The rear of the project site views parking lot, and mountains, from Duarte Ave. on the south the security container can not be seen for the south, west, and east of Baldwin Ave. or Duarte Rd. Project can only be seen if looking south form the raised parking area on the north side in the of the middle of the parking lot. * *Ground Diagram Attached Certification I hereby certify that the statements furnished above and in the attached exhibits present the'data and information required for the this initial evaluation to the best of my ability, and that the facts, statements, and information presented are true and correct to the best of my knowledge and belief. Date 4j dd ; it Co — (Signatur For L`o D,,,t r4 I s ^ 7 DECLARATION I, ���0 ��MQ�o�� , hereby declare that I am over 18 years of age and not a party to the within matter; that my business address is 240 West Huntington Drive; Arcadia, California; that I am employed in Los Angeles County, California; that I placed public hearing notice for CCkP QS -1A in (application number) envelopes addressed to property owners whose names appear on the attached list supplied by the applicant, which envelopes were then sealed and postage fully paid thereon and on 0 N - O RC 6 1, aO 0,S , deposited in the U.S. mail at Arcadia, California. I hereby declare, under penalty of perjury, that the foregoing is true and correct. NOTICE OF A PUBLIC HEARING BEFORE THE ARCADIA CITY COUNCIL ryep 'OPOAAx 60 ,00 NOTICE IS HEREBY GIVEN that a PUBLIC HEARING will be held by and before the ARCADIA CITY COUNCIL to determine whether or not the following appeal should be approved, conditionally approved or denied. LOCATION: 657 West Duarte Road in the City of Arcadia, County of Los Angeles APPELLANT: Joe Borland (property owner) APPEAL: An appeal of the Planning Commission's denial of Conditional Use Permit Application No. 05 -14 to retain an on -site 10'x10'x20' storage container at the subject location for the purpose of securing business records. ENVIRONMENTAL Notice of Exemption — Class 11 Categorical / Section 15311 Construction DOCUMENT: or placement of minor structures accessory to existing facilities. TIME AND HOUR Tuesday, November 1, 2005 at 7:00 p.m. OF HEARING: PLACE OF HEARING: Arcadia City Hall Council Chamber 240 West Huntington Drive, Arcadia, California The application file is available at the Planning Services Office. All interested persons are invited to appear at the Public Hearing and to provide evidence or testimony concerning the appeal. You are hereby advised that should you desire to legally challenge any action taken by the City Council with respect to the above mentioned appeal you may be limited to raising only those issues and objections which you or someone else raised at or prior to the time of the Public Hearing. Persons wishing to comment on the appeal may do so at the Public Hearing or by writing to the Community Development Division prior to the November 1, 2005 Public Hearing. It is in the best interest of any concerned party to be present at the Public Hearing. For further information regarding this matter, please contact Corkran W. Nicholson by calling (626) 574 -5422 in City Hall or by writing to the Community Development Division at 240 West Huntington Drive, P. 0. Box 60021, Arcadia, CA 91066 -6021. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in the Public Hearing, please contact the City Clerk's Office at (626) 574 -5455 at least three (3) working days before the meeting. This notification will help city staff in making reasonable arrangements to provide you with access at the Public Hearing. Arcadia City Hall is open Monday through Thursday, from 7:30 a.m. to 5:30 p.m., and on alternate Fridays from 7:30 a.m. to 4:30 p.m. City Hall will be closed on October 14 and October 28, 2005. Vida Tolman Chief Deputy City Clerk /Records Manager Publish Date: October 10, 2005 impression a secnage rapiae et antibourrage WHIM le gabarlt 8160" Frank and Chuying Yang 338 Wispering Pines Summit Arcadia, CA 91007 ank and Chuying Yang 33 Wispering Pines Summit Arcadlu 91007 www.averycom 1- 800-GO -AVERY AVERYO 8160"" Robert Touchon Robert Touchon P.O. Box 4973 1501 Linda Vista Dr. Houston, TX 77210 Ukiah, CA 95482 Bert Touchon %Uki rt Touchon P. Box 4973 . Linda Vista Dr. Houst TX 77210 i, CA 9 5482 rank and Chuying Yang X bert Touchon 3 Wispering Pines Summit P. ox 4973 Arc Ka, CA 91007 Houst , TX 77210 Tk ank and Chuying Yang obert Touchon 3 Wispering Pines Summit P. Box 4973 Arc a, CA 91007 Hous , TX 77210 ank and Chuying Yang ert Touchon 33 Wispering Pines Summit P.O. ox 4973 Arca a, CA 91007 Houst , TX 77210 SOO Properties LLC NZAC International Inc. 1108 S. Baldwin Ave. 3288 E. Russell Rd. Arcadia, CA 91007 Las Vegas, NV 89120 % ober Touchon Linda Vista Dr. CA 95482 obert Touchon 15 Linda Vista Dr. Ukiah-, CA 95482 bert Touchon 150 inda Vista Dr. Ukiah, A 95482 KJR Eastern Enterprises Inc. 206 Camino Del Sol South Pasadena, CA 91030 00 Properties LLC AC International Inc. Eastern Enterprises Inc. 1 8 S. Baldwin Ave. Inc. ' Russell Rd. 20 amino Del Sol Ar dia, CA 91007 Las Ve s, NV 89120 South sadena, CA 91030 00 Properties LLC N ZAC International Inc. R Eastern Enterprises Inc. 1 8 S. Baldwin Ave. 32 E. Russell Rd. 20 amino Del Sol Arcadia, CA 91007 Las as, NV 89120 South asadena, CA 91030 O Properties LLC C International Inc. Eastern Enterprises Inc. I 1 8 S. Baldwin Ave. 328 Russell Rd. 206 amino Del Sol Arc a 'a, CA 91007 Las Vegas, NV 89120 South asadena, CA 91030 00 Properties LLC AC International Inc. Eastern Enterprises Inc. 11 S. Baldwin Ave. 328 Russell Rd. 20 Camino Del Sol Arca CA 91007 Las Vegas, NV 89120 Sout Pa ' sadena, CA 91030 wt0918 ®��\/ V MMV-09.008-1 �� wi0918 31V1dW31 �anV ash wortiene•mmm r 6uIAM eaji wel pue a6pnws Impression a sknage rapide et antibourrage Utllisez le gabarit 8160"c Singpoli Investment LLC 18071 Irvine Blvd. Tustin, CA 92780 Sin oli Investment LLC 18071 Nne Blvd. Tustin, CA 2,780 Sia, poli Investment LLC 18071skvine Blvd. Tustin, 92780 Si Investment LLC 18071 ne Blvd. Tustin, CA92780 Sin i Investment LLC 18071 I 'ne Blvd. Tustin, CA 2780 World Saving & Loan Assn. 1901 Harrison St. Oakland, CA 94612 rld Saving & Loan Assn. 190 arrison St. Oakland A 94612 W Ida Saving & Loan Assn. 1901 nison St. Oakland, A 94612 W rld Saving & Loan Assn. 1901 >son St. Oakland, A 94612 d Saving & Loan Assn. 1901 ison St. Oakland, 94612 www.ave com 1- 800 -GO -AVERY AVERY® 8160"' A and A Capital Inc. Eric and Carol His 3435 Wilshire Blvd. 600 W. Walnut Ave. Los Angeles, CA 90 Arcadia, CA 91007 X4 b G 5°EI ct ty�dC,lY2YZ1,b�� , A d A Capital Inc. 343 ilshire Blvd. Los Ang les, CA 90010 ric and Carol His 6 OR W. Walnut Ave. Arc dia, CA 91007 A aftd Capital Inc. 3435 shire Blvd. Los Ange es, CA 90010 A a d A Capital Inc. 3435 lshire Blvd. Los Ange s, CA 90010 A an A Capital Inc. 3435 shire Blvd. Los Ange es, CA 90010 E 'c and Carol His 60\W. Walnut Ave. Arcadia, CA 91007 c and Carol His 600, W Walnut Ave Arcadia, CA 91007 Eric and Carol His 600 W. Walnut Ave. Arcadia, CA 91007 n A83AV-09.008-L wi09LB31VIdW3l�anyasn w.09LB ® �V V ww LenennNVA 6ul ;uPd Owd wet pue a6pnw5 " - City of Arcadia City Council 240 W. Huntington Dr. Arcadia, Ca. 91066 -6021 September 20, 2005 Re: Conditional Use Permit Application No. 05 -14; Appeal of Planning Commission Resolution No. 1733 Dear City Council Members: I hereby appeal the denial of my Conditional Use Permit application No. 05 -14. My appeal is based on the following considerations: 1.) The container that is the subject of this appeal has been in place for over 44 years. My use and occupancy has pre -dated any ordinance that you are imposing on me. There should be a grandfather provision to allow an inoffensive pre- existing secure container to remain. This secure container has never been considered as a problem nor unsightly, contrary to the subjective comment in the staff report. It is not an unsightly secure container and it is behind the building and a wall in the middle of the block. 2.) However, there are many similar containers around the city that are used by schools, hospitals, fire stations, churches, and City Yard, all of which are in full view and need of repair to include rental signs on each of them. I have been told that these entities are exempt. I have requested from the City Attorney the ordinance that allows the exemption, but he has not provided anything. 3.) This container is behind the existing 657 Bldg. and has been in that location since the bldg. was erected in 1961. No changes have been made to the building or parking lot spaces that were approved in 1961. According to the tenant of 10 years, Mr. Dan Hsieh, "There has never been a parking problem on this property ". In fact, this secure container is in the middle of the block and cannot be seen from Duarte on the south, Baldwin on the west, Arcadia Ave. on the north and the bldg. on the east. 4.) During the formal CUP process "no negative responses to the CUP application" were sent to the City by any property owner nor any tenants within the 300 yard radius. During the hearing, however, there were 2 written letters from tenants within the 300 yard area that were totally positive and 4 individuals that testified in favor of leaving the container where it has always been located & bothers no one. I have reviewed the provisions of Section 9275.1.2 of the Arcadia Municipal Code that outlines prerequisite conditions for issuance of a Conditional Use Permit and I believe that I have met all 5 of the conditions set forth. I will sign an acceptance form as published by the Development Services Department to indicate my awareness and acceptance of any conditions for approval. Your re- consideration of my application No. 05 -14 for a Conditional Use Permit for the use of an existing 10'x 10'x20 metal storage container at 657 W. Duarte Road and this appeal is appreciated. RECEIVED SEP 21 2005 CITY OF ARCADIA Joe S. Borland CITY CLERK BACK GROUND This property was developed in 1960 by Mr. Upjohn. The 657 Building was built & Leased to the National Cash Register NCR until 1980 when Joe Borland RPT purchased the property & secure container. NCR used the secure container for a night drop for cash registers to be repaired and before work pick up. This secure container has been behind the 657 Building in the same location unchanged and unexpanded since that time, a total of 45 years.... Joe Borland Physical Therapist started his physical therapy medical practice and Borland's Retail with two business licenses in the City of Arcadia in 1971 . Mr. Upjohn was Borland's patient and also sold Borland a cash register that same year. On or about the same time Mr. Upjohn leased the secured container to Borland for his business since NCR now manufactured electronic units. This secure container has been in Borland's ownership for 34 years same location. In 1990 Rick Gomez, Development Services Director for City of Arcadia, Approved the concrete slab under the secure container. "NO" permit was required. Mr. Gomez at the same time did not object to the secure container nor the location behind the building, in fact he thought "the location was a good one for 30 years." Now it has been 45 years... Since then, 1971 Joe Borland Physical Therapy & Borland's retail has continued in business at this same location and maintains the property including being the property manager. Borland continues to have two businesses for the past 34 years and uses the secure container for those businesses, medical records. This conditional permit will not create precedent since it has existed since 1960 Piano Gallerie CALIFORNIA MUSIC ACADEMY 657 West Duarte Road • Arcadia, CA 91007 VOICE: (626) 821 -9191 • FAX: (626) 821- 6006 September 20, 2005 City Council City of Arcadia 240 W. Huntington Dr. Arcadia, CA 91007 RE: CONDITIONAL USE PERMIT # 05 -14 Ladies and Gentlemen, I am the owner operator of Piano Gallerie /California Music Academy located at the subject address since 1996. During this passed 9+ years I have never received any comment, inquiry or complaint regarding the subject container. This subject container is tucked away in the rear of the building at 657 W. Duarte Rd. and is painted in the same color of the building blended in as part of the landscape. It is not visible from either Duarte Rd. or Baldwin Ave.. In addition, we never have any parking problem during these passed many years in business at the location. Your kind considerations and approval of this permit is just and appreciated. August 9, 2005 City of Arcadia 240 W Huntington Drive Arcadia, CA 91007 RE: Conditional Use Permit Hearing C.U. P #: 2005 -14 Gentlemen: I understand there is a concern about a security container located at 657 W Duarte Road being an "eyesore ". I have worked at 630 W Duarte Road for a total of 20 years, first as Branch Manager for Security Pacific National Bank, and now as Branch Manager for Citizens Business Bank. In all of that time, I have not noticed the security container that is in question, and have never heard any one of my customers express a concern about an "unsightly" container housed at 657 W Duarte Road. Sincerely, Dianne C. Chapman MESA Chiropractic September 21, 2005 City of Arcadia 240 W Huntington Drive Arcadia, CA 91007 RE: C.U.P. Hearing Dear Sirs: I have had my clinic at 638 West Duarte Road since September of 1990. During this time there has been no indication of activity around the security container at 657 West Duarte Road nor have there been complaints regarding such. Sincerely, 1 W. David Goff D. . City of Arcadia September 20, 2005 City Council 240 W. Huntington Dr. Arcadia, Ca. 91066 -6021 Re: Conditional Use Permit Application No. 05 -14; Appeal of Planning Commission Resolution No. 1733 Dear City Council Members: I hereby appeal the denial of my Conditional Use Permit application No. 05 -14. My appeal is based on the following considerations: 1.) The container that is the subject of this appeal has been in place for over 44 years. My use and occupancy has pre -dated any ordinance that you are imposing on me. There should be a grandfather provision to allow an inoffensive pre- existing secure container to remain. This secure container has never been considered as a problem nor unsightly, contrary to the subjective comment in the staff report. It is not an unsightly secure container and it is behind the building and a wall in the middle . of the block, VOID AFTER 90 DAYS Rank of America 'oP,.P� 1- 35 1210 2019903660 rx2' ttB, okt�rtNAT, 4t3g5N7? �te1�1Z4' ��iTt1�Rtv7A 'ttK;.I3Nfitl ,�... ,.;.� " tt�: rt�itt+'` A' �t3ti�'�}tr7"iH�stTE�`rr$i*iFr, _ A7'�itlV�AR7�`37 �A °GT4:;= M'.;E�#i positive and 4 individuals that testified in favor of leaving the container where it has always been located & bothers no one. I have reviewed the provisions of Section 9275.1.2 of the Arcadia Municipal Code that outlines prerequisite conditions for issuance of a Conditional Use Permit and I believe that I have met all 5 of the conditions set forth. I will sign an acceptance form as published by the Development Services Department to indicate my awareness and acceptance of any conditions for approval. Your re- consideration of my application No. 05 -14 for a Conditional Use Permit for the use of an existing 10'xIO'x20 metal storage container at 657 W. Duarte Road and this appeal is appreciated. ce rely �� p oe S. Borland u'20 1990 3660I 1:L 2i000358 1 : i,3970"113SO7611' N STAFF REPORT Police Department DATE: November 1, 2005 TO: Mayor and Members of the City Council FROM: Robert P. Sanderson, Chief of Police 0, By: Nancy Chik, Management AnaW4 -z- SUBJECT:: Resolution No. 6489 Adopting False Security Alarm Fees for the Police Department Recommendation: Approve SUMMARY Resolution No. 6489 sets forth updated fees for false security alarm responses by the Police Department. BACKGROUND & DISCUSSION The Department responds to about 3,500 false alarm calls per year, and the normal procedure is to have two officers respond to each of these calls. Several alarm activations occurring in a short period of time can deplete the patrol strength, thus depriving residents and visitors access to emergency services. Those locations that chronically have a history of false alarm activations become nuisances. The Police Department charges fees for services based upon the cost incurred to provide each service. These fees are periodically updated to reflect increased costs. The Department needs to recoup reasonable fees for services and to encourage residents and business owners to properly maintain their alarm systems. A review of the fees that were established in 1991 indicates that the fees do not reflect our current rates and actual costs for service; therefore, updated fees are required. Currently, there is no cost assessment for the first three false alarms in any consecutive 365 -day period. For the fourth and fifth false alarms, there is an assessment of $50; for the sixth and all subsequent false alarms, there is a $100 cost assessment. A cost analysis was conducted and it costs approximately $146 for the Police Department to respond to each false alarm call. It is recommended that there should be no cost assessment for the first three false alarms because California courts have made a decision that the municipality must give the subscriber warning of the excessive false alarms prior to actual billing. For a full recovery cost, $150 for the fourth and fifth false alarms and $300 for the sixth and subsequent false alarms were suggested. The Department recommends a lower fee structure because the proposed amounts already reflect a 100% increase in the current rates, and the $146 per response is based on a two- officer response, which is the normal practice. However, on some alarm calls, only one officer is dispatched due to personnel shortage or other circumstances. The proposed fees are as follows: Residences and businesses with a security system used for.deterring burglaries are allowed 3 false alarms over a 365 -day period, starting with the first alarm with no penalty assessment. The fourth and fifth false security alarms in any consecutive 365 - day period will be assessed $100. Each of the sixth and all subsequent false security alarms in any consecutive 365 -day period will be assessed $200: For each false security alarm which specifically signals a. robbery regardless of any other crime, there shall be a cost assessment of $200, commencing with the second false security alarm in any consecutive three hundred sixty-five (365) day period. After one "robbery" false security alarm, the City shall issue a warning notice to the security alarm user. This Resolution shall become effective upon the adoption of Ordinance No. 2212. FISCAL IMPACT Staff estimates increased revenue of $5,000 to $10,000 annually to the City. RECOMMENDATION Staff recommends that the City Council adopt Resolution No. 6489 adopting false security alarm fees for the Police Department. Approved: I William R. Kelly, City Manager Y RESOLUTION NO. 6489 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, ADOPTING FALSE SECURITY ALARM FEES FOR THE ARCADIA POLICE DEPARTMENT WHEREAS, the Police Department charges certain fees for administrative and related activities based on reasonable costs incurred by the Department; and WHEREAS, subject fees are subject to change to cover actual costs. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: SECTION 1. Pursuant to Arcadia Municipal Code Section 3907, the cost assessments for false security alarm responses of the Arcadia Police Department are set forth as follows: (A) The first through third false security alarm in any consecutive three hundred sixty -five (365) day period —No cost assessment. (B) For each of the fourth and fifth false security alarms in any consecutive three hundred sixty -five (3 65) day period —One Hundred Dollars ($100.00) cost assessment. i f (C) For each of the sixth and all subsequent false security alarms in any consecutive three hundred sixty-five (365) day period— Two Hundred Dollars ($200.00) cost assessment. (D) For each false security alarm which specifically signals a robbery regardless of any other crime, there shall be a cost assessment of Two Hundred Dollars ($200.00), commencing with the second false robbery alarm in any three hundred sixty- five (365) day period. SECTION 2. That the City Clerk shall certify to the adoption of this Resolution. Passed, approved, and adopted this ist Mayor of the City of Arcadia ATTEST: City Clerk of the City of Arcadia APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 2 rY STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6489 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the lst day of November, 2005 and that said Resolution was adopted by the following vote, to wit: AYES: Council Member Chandler, Kovacic, Marshall, Segal and Wuo NOES: None ABSENT: None a City Clerk of the City of Arcadia 3 STAFF REPORT Arcadia Redevelopment Agency November 1, 2005 TO: Arcadia Redevelopment Agency FROM: Don Penman, Deputy Executive Director By: Brian Saeki, Economic Development Manager SUBJECT: SUM MA On January 4, 2005, the City Council and Redevelopment Agency Board approved a Land Assembly and Development Agreement ('LADA ") with Paul P. Rusnak .and Rusnak/Arcadia to assist in assembling five (5) properties (approximately 3.6 acres) to the east, Le., Church in Arcadia, a vacant triangular property Rod's Grill the Arcadia Self Storage building, and the Elks Club for purposes of expanding his, existing dealership. These properties are generally under -utilized, lade sufficient parking, and combine incompatible land uses. 11 Rusnak/Arcadia is now requesting that the LADA be amended to allow the Executive Director to approve an equivalent form: of financial assurance for the -Agency's investment in lieu of a letter of credit. All other forms of security induded in the LADA shall remain in place. Rusnak/Arcadia is proposing to substitute the letter of credit form of security with a line of credit. The line of credit would be issued by Volkswagen Credit. Staff :has reviewed the line of credit document, and though it is not the same as a letter of credit, staff feels it would provide adequate security in lieu of the letter of credit. Staff is recommending that the Agency Board approve resolution number ARA 217 (Attachment 1) which allows the Executive Director to approve other forms of financial assurance for the Agency's investment. Arcadia Redevelopment Agency November 1, 2005 Page 2 DISCUSSION The existing LADA provides for,several types of security to protect the City and Agency in the event Mr. Rusnak and /or Rusnak/Arcadia does not comply with the requirements as expressed in the LADA. For example, Rusnak/Arcadia has provided the Agency with a promissory note secured by a deed of trust on the existing 4-acre site. This could allow the Agency to recoup its investment in the event of a default. In addition, deeds of trusts must be,recorded on all acquired properties which would provide for the same type of security. Staff is comfortable that the market value of the existing Rusnak parcel and any acquired properties will provide more than adequate security. for the Agency. Other types of security are as follows: Section 6.6 of the LADA — No Transfer Prior to Repayment of Agency Loan The Owner and/or Operator cannot transfer any of its interest in the Expansion Site, Dealership Site, any improvement on either site nor any automobile dealership franchise then being operated on the sites prior to repayment in full of all principal and accrued interest under the Promissory Note. Section 8.1 of the LADA = Agency Right to Approve Lenders The Agency can use its "reasonable" discretion to approve lenders.and all related loan documents. Section 8.2 of the LADA — Recordation of Construction Loan The Owner.agrees to record-a construction loan against the Expansion Site or Dealership Site within 30 days following the close.of escrow. Section 8.7 of the LADA — Subordination of Agency Deed of Trust At close -of escrow, the Agency will be in the first lien position. The Agency can agree tb subordinate to second lien position only to a permitted security interest (i.e., land financing, construction loans, etc.); If theAgency is to take a second position to a permitted security interest, the Owner must provide payment and performance bonds in favor of the Agency for;= the completion of the Expansion Project. Arcadia Redevelopment Agency November 1, 2005 Page 3 Section 10.3 of the LADA — Agency Rights to accelerate Obligations Upon any default, the Agency may declare all amounts due or that may become due to the Agency or the City. Section 10.4 & 5 of the LADA — Agency Termination Rights Prior to the Close of the First Phase of Agency /Owner Escrow & Agency Power of Termination regarding Dealership Site Under Civil Code Sections 885.010, at seq., the Agency in its sole and absolute discretion (with 30 days written notice), can terminate the fee interest of,the Owner in real property conveyed through the Agency Grant Deed... If the Agency were to exercise its right to terminate the Agreement, all approved loans (land financing and construction loans) would be paid first, then the Agency and if there were proceeds remaining, they would go to the Owner. Finally, Mr. Rusnak is to provide the Agency with a $4 million letter of credit. Because of the cost of the letter of credit, Rusnak is requesting that a similar substitute security be allowed by the Agency (line of credit). The line of credit would be in the amount of $4 million and the Agency would have the exclusive right to draw upon it if in the event of a default by Mr. Rusnak and/or Rusnak Arcadia. The term of the line of credit would be for three (3) years and will be renewed annually. However, Volkswagen would have the right to terminate the Agreement with 120 days notice to the Agency. If they choose to do so, Mr. Rusnak must provide an equivalent substitute security acceptable to the Agency within the 120 day time period. If an acceptable substitute is not provided, the Agency has the authority to draw upon the entire $4 million at that time. It is staffs opinion that the line of credit with Volkswagen is sufficient security in lieu of the letter of credit. Volkswagen is a credible financial institution with sufficient assets to guarantee the $4 million line of credit. Most importantly, the Agreement with Volkswagen Credit will provide the Agency with the opportunity to draw upon the $4 million in the event of a default. ENVIRONMENTAL IMPACT Amendment No. 1 to the LADA will not effect the environmental impacts of the proposed development. Therefore, the Mitigated Negative Declaration and Mitigation Monitoring Plan approved by the City Council and Agency Board address and mitigate any potential environmental impacts from the project. Arcadia Redevelopment Agency November 1, 2005 Page 4 FINANCIAL IMPACT Amendment No. 1 to the LADA will have no financial impact on the City and or Agency. RECOMMENDATION That the Arcadia Redevelopment Agency Board adopt Resolution No. ARA 217 amending the Land Assembly and Development Agreement between the Arcadia Redevelopment Agency, and Paul P. Rusnak and RusnaklArcadia which would allow the Executive Director to approve other forms of financial assurance to the Agency in lieu of the $4 million letter of credit. Appro ved: . William R. Kelly, Executive Director — RESOLUTION NO. ARA -217 A RESOLUTION OF THE ARCADIA REDEVELOPMENT AGENCY OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING AMENDMENT NO. I TO A CERTAIN LAND ASSEMBLY AND DEVELOPMENT AGREEMENT WITH PAUL P. RUSNAK AND RUSNAK/ARCADIA WHEREAS, the Arcadia Redevelopment Agency (the "Agency ") has entered into a certain Land Assembly and Development Agreement ( "Agreement ") with Paul P. Rusnak and Rusnak/Arcadia (collectively, the "Owner" or the "Operator ") dated December 7, 2004 pursuant to which the Agency agreed to assist the Owner and/or the Operator in the expansion of their existing automobile dealership within the Central Redevelopment Project Area (the "Project Area "); Wei WHEREAS, the Agreement requires the Owner to provide the Agency a letter of credit in order to provide certain financial assurance to the Agency regarding the Owner's and the Operator's performance of their obligations under the Agreement; and WHEREAS, the Agency, the Owner and the Operator now desire and intend to amend the Agreement to provide for the flexibility of other forms of financial assurance to be provided by the Owner to the Agency, in addition to or separate from a letter of credit; and t .s WHEREAS, the Agency now proposes to enter into Amendment No. 1 to the Agreement ( "Amendment No. 1 ") for the foregoing purposes, and has found and determined that Amendment No. 1 does not materially alter any essential terms and provisions of the Agreement, is in the best interests of the Agency and will assist the Agency in achieving the purposes for which the Agency has entered into the Agreement. NOW, THEREFORE, THE ARCADIA REDEVELOPMENT AGENCY OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The Agency hereby approves Amendment No. 1, a copy of which is on file with the Agency Secretary. The Agency further authorizes and directs the Executive Director of the Agency, or his designee, to execute Amendment No. 1 on behalf of the Agency, together with such nonsubstantive changes thereto as may be approved by the Executive Director of the Agency and Agency Counsel. SECTION 2. The City Clerk shall certify to the adoption of this Resolution. 2 Passed, approved and adopted this ist day of November- , 2005. Chairperson Arcadia Redevelopment Agency ATTEST: IS/ wJA ES H. BARROWS Secretary Arcadia Redevelopment Agency APPROVED AS TO FORM Stephen P. Deitsch Agency Counsel STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, Secretary of the Arcadia Redevelopment Agency of the City of Arcadia, hereby certifies that the foregoing Resolution No. ARA -217 was passed and adopted by the Arcadia Redevelopment Agency of the City of Arcadia, signed by the Chairperson and attested to by the Secretary at a regular meeting of said Agency held on the 1 st day of November, 2005 and that said Agency Resolution was adopted by the following vote, to wit: AYES: Agency Members Chandler, Kovacic, Marshall, Segal and Wuo NOES: None ABSENT: None JAMS H, ARRO Secretary of the Arcadia Redevelopment Agency 0 STAFF REPORT Police Department DATE: November 1, 2005 TO: Mayor and Members of the City Council FROM: Robert P. Sanderson, Chief of Police By: Nancy Chik, Management Analyst-9 SUBJECT: Ordinance No. 2212 Amendino Sectio Introduce SUMMARY The Police Department requests amendment to Section 3907 of the Arcadia Municipal Code pertaining to false security alarm cost assessment/grace period. Speck fees have historically included in the Municipal Code, and it is recommended that the fee amounts be deleted from the Municipal Code and that updated fees will be set by resolution from time to time. BACKGROUND & DISCUSSION The Department responds to about 3,500 false alarm calls per year. Each response requires a minimum of two officers to respond on these calls. Several alarm activations occurring in a short period of time can deplete the patrol strength, thus depriving residents and visitors access to emergency services. Those locations that chronically have a history of false alarm activations become nuisances. The City has an ordinance dealing with security alarm systems, the required permits, a process for assessing penalties for nuisance locations, and criminal prosecution if necessary. Residences and businesses with a security system used for deterring burglaries are allowed 3 false alarms over a 365 -day period, starting with the- first alarm with no penalty assessment. The fourth and subsequent alarms in the 365 -day period can be assessed a penalty that increases with each false alarm. In our review of the ordinance pertaining to false alarm fees, it has come to our attention that the fees charged for false alarm responses are too low. The City should be able to recoup reasonable fees for services and to encourage residents and .business owners to properly maintain their alarm systems. Because fee assessments are periodically reviewed and adjusted, it is recommended that the fee amounts be removed from the Municipal Code and that updated fees will be established by resolution adopted by the City Council from time to time. The proposed amendment will read as follows: "3907. FALSE SECURITY ALARM COST ASSESSMENT/ GRACE PERIOD. Any person having a security alarm system which results in an Arcadia Police Department response in which the security alarm proves to be a false, security alarm, -shall pay a cost assessment fee to the City of Arcadia as established from time to time by Resolution of the City Council. There will be no penalty assessment for any false security alarms that occur within thirty (30) calendar days of the initial completed installation of a new security alarm system. A false security alarm cost assessment shall be paid to the City after four (4) false security alarms have been received from any one (1) source from any one (1) security alarm system, in accordance with the following schedule: A. The first through third false,security alarm in any consecutive three hundred sixty -five (365) day period will incur no cost assessment. B. For each of the fourth and fifth false security alarms in any consecutive three hundred sixty -five (365) day period, there will be a cost assessment as set forth by Resolution of the City Council. C. For each of the sixth and all subsequent false security alarms in any_ consecutive three hundred sixty -five (365) day period, there will be a higher cost assessment as set ;forth by Resolution of the City Council. D. Notwithstanding any provisions herein to the contrary, for.each false security alarm which specifically signals a robbery regardless of any other crime, there shall be a cost assessment as set forth by Resolution of the City Council, commencing with the second false security alarm In any consecutive three hundred sixty-five (365) day period. After one (1) 'robbery" false security alarm, the City shall issue a warning notice to the security alarm user. As set forth in Penal Code Section 211, "robbery" means the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, by means of force or fear. Notwithstanding any provision herein to the contrary, the cost assessment set forth in this subsection D shall not apply to so- called "panic" alarms which signify any kind of emergency. The purpose of this Section 3907 is, in part, to assure that assessments shall apply to any person whose security alarm system results in at least four (4) false security alarms within any consecutive three hundred sixty -five (365) day period. Any false security alarm within any three hundred sixty-five (365) day period shall be counted as part of the calculation of cost assessments as set forth by Resolution of the City Council. Accordingly, a person cannot be cleared of any false security alarms in this determination, unless that person's security alarm system does not register any false security. alarms for at least three hundred sixty-five • (365) consecutive days." FISCAL IMPACT With the new false alarm fees to be established by Resolution, the City anticipates an annual revenue of $5,000 to $10,000. . RECOMMENDATION Introduce Ordinance No. 2212 amending Section 3807 of the Arcadia Municipal Code Concerning False Security Alarms. Approved: William R. Kelly, City Manager ORDINANCE NO. 2212 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING SECTION 3907 OF THE ARCADIA MUNICIPAL CODE CONCERNING FALSE SECURITY ALARMS. THE CITY COUNCIL OF, THE. CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Section 3907 of the Arcadia Municipal Code is hereby amended to read as follows: "3907. FALSE SECURITY ALARM COST ASSESSMENT /GRACE PERIOD. Any person having a security alarm system which results in an Arcadia Police Department response in which the security alarm proves to be a false security alarm, shall pay a cost' assessment fee to the City of Arcadia as established from time to time by Resolution of the City Council. There will be no penalty assessment for any false security alarms that occur within thirty (30) calendar days of the initial completed installation of a new security alarm system. A false security alarm cost assessment shall be paid to the City after four (4) false security alarms have been received from any one (1) source from any one (1) security alarm system, in accordance with the following schedule: A. The first through third false security alarm in any consecutive three hundred sixty-five (365) day period will incur no cost assessment. 1 B. For each of the fourth and fifth false security alarms in any consecutive three hundred sixty-five (365) day period, there will be a cost assessment as set forth by Resolution of the City Council. C. For each of the sixth and all subsequent false security alarms in any consecutive three hundred sixty-five (365) day period,.there will be a higher cost assessment as set forth by Resolution of the City Council. D. Notwithstanding any provisions herein to the contrary, for each false security alarm which specifically signals a robbery regardless of any other crime, there shall be a:cost assessment as set forth by Resolution of the City Council, commencing with the second false security alarm in any consecutive three hundred sixty-five (365) day period. After one (1) `robbery" false security alarm, the City shall issue a warning notice to the security alarm user. As set forth in Penal Code Section 211, "robbery" means the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, by means of force or fear.. Notwithstanding any provision herein to the contrary, the cost assessment set forth in this subsection D shall not apply to so- called "panic" alarms which signify any kind of emergency. The purpose of this Section 3907 is, in part, to assure that assessments shall apply to any person whose security alarm system results in at least four (4) false .a security alarms within any consecutive three hundred sixty-five (365) day period. Any false security alarm within any three hundred sixty-five (365) day period shall be counted as part of the calculation of cost assessments set forth by Resolution of the City Council. Accordingly, a person cannot be cleared of any false security alarms in this determination, unless that person's security alarm system does not register anyfalse security alarms for at least three hundred sixty-five days (365) consecutive days. SECTION 2. The City Clerk shall certify the adoption of this Ordinance and shall cause'a copy of the same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. Passed, approved and adopted this day of , 2005. Mayor of the City of Arcadia ATTEST: City Cleric of the City of Arcadia APPROVED AS TO FORM: R Y Stephen P. Deitsch City Attorney 3 t November 1, 2005 STAFF REPORT Public Works Services Department TO: Mayor and City Council FROM: Pat Malloy, Public Works Services DirecCor Prepared by: Tom.Tait, Field Services Manager Dave Thompson, Street Superinten ant SUBJECT: Asphalt - Grinding machine Recommendation: Purchase one (1) 2005 Asphalt- Grinding machine from Asphalt Zipper, Inc. in the amount of $65,950 SUMMARY Staff is recommending that the City Council award a purchase order contract for one (1) asphalt - grinding machine to Asphalt Zipper, Inc. in the amount of $65,950.00. This equipment will be used to remove asphalt for trenching and patching of raised and damaged areas providing an easier and faster repair and improving pavement maintenance operations of City streets overall. Funds in the amount of $75,000 have been budgeted for this acquisition in the 2005- 2006 Equipment Replacement Fund. DISCUSSION Conventional asphalt roads breakdown and deteriorate due to age, excessive wear and tear, and weather conditions. Furthermore, City owned tree roots are lifting and damaging asphalt pavement throughout the City. The asphalt grinder machine will be used to safely and efficiently remove asphalt for trenching and patching of raised and/or damaged areas. This machine will greatly reduce the time and physical labor that is currently spent removing and repairing city streets. The purchase of this piece of equipment will increase productivity while reducing the risk of injury to staff. Additionally, the ground material will be recycled and used as a base material to fill trenches and other repair work. Finally, this machine has been designed to excavate at variable depths, thus helping to prevent the likelihood of costly damage to underground utilities. Mayor and City Council November 1, 2005 Page 2 Notices inviting bids were published in the adjudicated paper and bid packages were distributed to area dealers. The following two (2) sealed bids were received on September 27, 2005: BIDDER BID AMOUNT Asphalt Zipper, Inc. $65,950.00 Asphalt Maintenance Equipment $79,270.00 Staff is recommending that the City Council award a purchase order contract for one (1) Asphalt- Grinding machine in the amount $65,950 to Asphalt Zipper, Inc. FISCAL IMPACT Funds in the amount of $75,000 are budgeted' in the 2005 -06 Equipment Replacement Fund for this acquisition. RECOMMENDATION 1. Approve the purchase of one (1) 2005 Asphalt- Grinding machine in the amount of $65,950.00 to Asphalt Zipper, Inc. 2. Authorize the Purchasing Officer to issue a purchase order for this acquisition. APPROVED: � William R. Kelly, City Manager PM:TWT:DT:dw STAFF REPORT Public Works Services Department November 1, 2005 TO: Mayor and City Council -, FROM: Pat Malloy: Public Works Services Director Prepared by: Dave McVey, General Services up rintendent SUBJECT: Purchase two (2) 2006 Pick Up Trucks Recommendation: Approve the purchase of two (2) Pick Up Trucks with utility bodies in the amount of $49,693.42 from Pasadena Ford SUMMARY Staff is recommending that the City Council award a purchase order contract for two (2) 2006 Ford trucks in the amount of $49,693.42 to Pasadena Ford for the purchase of two (2) three - quarter ton pick up trucks with utility bodies. These vehicles will replace two (2) vehicles used by the Public Works Services Department, Streets and Water Sections. $60,000.00 is included in this year's Equipment Replacement Budget for these units. The total cost for purchasing these trucks is $49,693.42. DISCUSSIONS The 2005 -06 Equipment Replacement Fund provides for the replacement of two (2) pick up trucks with utility bodies for the Public Works Services Department, Street and Water Sections. The vehicles scheduled for replacement are a 1995 Chevy and a 1996 Ford pick up trucks. Each of these vehicles meet the mileage and /or age requirement defined in the City's vehicle replacement policy. Additionally, the vehicles will be equipped with new two -way mobile radios, emergency lighting, and arrow message boards. Pasadena Ford has agreed to recognize a 2003 City of Arcadia purchase order that included the purchase of a 2004 three - quarter ton pick up truck with utility body. Pasadena Ford will recognize the same per unit price for two (2) 2006 trucks at the 2004 selling price. The purchase of these vehicles at this particular time allows the City to benefit by receiving brand new 2006 model vehicles for the price of the 2004 models. Staff has determined that Pasadena Ford Sales is a qualified company and the vehicles being provided meet City specifications. Mayor and City Council November 1, 2005 Page 2 FISCAL IMPACT Funds in the amount of $60,000.00 have been budgeted in the 2005 -06 Equipment Replacement Fund for:the purchase of these vehicles. RECOMMENDATION 1. Approve the purchase of two (2) 2006 Ford pick up trucks in the amount of $49,693.42 from Pasadena Ford. 2. Waive the formal bidding process and authorize a cooperative purchase with Pasadena Ford using the 2003 City of Arcadia purchase order unit prices. APPROVED BY: William R. Kelly, City Manager PM :DM:dW Avryn f. NO3 STAFF REPORT Public Works Services Department November 1, 2005 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Direc46r Prepared by: Gary F. Lewis, General Services Ma ager Ken Herman, Associate Civil Engineer SUBJECT: Santa Anita Reservoir No. 4 Design Recommendation: Authorize a change order to RBF Consulting in the amount of $41,210 to provide engineering support services for the construction of the Santa Anita Reservoir No. 4. SUMMARY The 2003 -04 Capital Improvement Program provides for the construction of a new 4 million gallon reservoir to replace reservoirs No. 1 and 2, each having a storage capacity of 1.0 million gallons. The City has received $5,126,049 grant funding over the last four (4) years from the U.S. Environmental Protection Agency (USEPA) for water system'improverrients for seismic reliability, $2.2 million is being applied to this project. Included in the scope of work for the design of Santa Anita Reservoir No.4 is the responsibility of the Engineer of Record to provide engineering technical support to the project during the course of construction. RBF Consulting has requested additional funds be added to their existing professional services agreement for engineering support hours spent in excess of the original budget estimate. Staff recommends that the City Council authorize a change order in the amount of $41,210 to RBF Consulting to continue to provide engineering support during the construction of the reservoir. DISCUSSION The replacement of Reservoirs No. 1 and 2 with Reservoir No. 4 is the third phase of an overall program of facility improvements at this site. Phase 1 was completed in 2001 and involved upgrading the Santa Anita Booster Pump Station. Phase 2 was recently completed and involved the seismic rehabilitation of Santa Anita Reservoir No. 3. Phase .3 involves the design and construction of a new 3.5 million gallon (MG) reservoir, replacing the two existing 1.0 MG reservoirs at this facility. Design of the reservoir was completed in October of 2004, and the City Council awarded the contract for the construction of the reservoir in January of 2005. The reservoir is currently under construction and anticipated to be complete in May of 2006. Mayor and City Council November 1, 2005 Page 2 During the course of construction, the Engineer of Record typically providesengineering support of the project by responding to Requests For Information (RFI), reviewing and approving product submittals, making periodic site inspections, and completing the final as -built revisions to the Record Drawings. Prior to the project being designed, it's very difficult for the Design Engineer to anticipate all the costs that could occur or to know the level of involvement that will be needed based on the final design. In their initial proposal to provide design services, submitted in 2002 RBF estimated time required for the construction support of the project based on the following factors: • The size and complexity of the structure • The anticipated project start date and project duration, • The Construction Management team providing construction direction • The Contractor and competence of the construction team,• • The cost to construct the project • The final document recording required by the EPA Throughout the course of construction, RBF has supported the "project demands by reviewing all design - related shop drawings, product information and questions submitted by the Contractor. Often times these questions are related to product substitutions or changes in the execution of work proposed by the Contractor in order to cut the Contractor's costs and increase profit or stay within their bid. These; requests have needed to be evaluated by the Design Engineer to ensure that the quality of the structure is not compromised. RBF has worked very closely with City staff and with the contract Construction Management staff to control the products used and execution of work, however the effort required to meet these' demands is in excess of what RBF had originally anticipated, and they are requesting additional funds to cover their costs. It is important to retain the services of RBF throughout the construction process as they are the Engineer of Record, and will be required by the EPA to approve the final record drawing set. The tight control of the project by Staff, the Construction Management team, and RBF has resulted in a project that is on schedule with only $4,400 in change orders. The total change orders to date by the Contractor represent 0.08% of the original construction contract. ENVIRONMENTAL IMPACT: The City Council adopted a Negative Declaration for this project on November 21, 2000, pursuant to the provisions of the California Environmental Quality Act; Staff did not find substantial evidence that this project would have a significant or potentially significant adverse effect on the environment. As a condition of the federal grant approval, the USEPA also completed an Environmental Assessment under the National Environmental Policy Act and did not find this project to have a significant environmental impact. Therefore,' no further action is necessary for approval of entering into a professional services agreement. Mayor and City Council November 1, 2005 Page 3 FISCAL IMPACT: Funds in the amount of $540,000 were budgeted in the 2002 -2003 Capital Improvement Program for engineering services including design and preparation of plans, specifications and bid and contract documents, and the provision of construction support. The current contract with RBF Consulting is $422,894. Addition of the requested change would increase this contract to $464,104. RECOMMENDATIONS: Authorize a change order in the amount of $41,210 to RBF Consulting to provide engineering support services during the construction of the Santa Anita Reservoir No. 4. Approved: William R. Kelly, City Manager PM:GFL:KH:dw Lug 5,110 de {u[!. BOf STAFF REPORT Public Works Services Department November 1, 2005 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Direct r- Prepared by: Tom Tait, Field Services Manager Martin Ray, Utilities Superintendent SUBJECT: Recommendation: Authorize the City Manager to enter into a contract with General Pump Company, Inc. in the amount of $300,000 to provide preventive maintenance services and repair of City owned water wells and booster pumps. SUMMARY The City of Arcadia owns and operates water production and distribution facilities, which includes 13 water production wells and 32 booster pumps. The mechanical pumps, motors and appurtenances require regular and, at times, extraordinary maintenance to ensure that water system demands are met. Currently, staff solicits separate bids for each required service, repair or whenever a failure in the system occurs. This can be time consuming and costly especially for emergency service repairs. To improve our response time and to keep the system operating as designed, a service contract for this work would be beneficial to the City. Funding for this work is included in this year's operating budget. On September 25, 2005, sealed bids were opened for well and booster pump maintenance services. Three (3) bids were received with General Pump Company, Inc. submitting the lowest responsive bid. Staff has reviewed their bid and found it to be satisfactory. This service contract ensures that preventative maintenance services and urgent and emergency repairs are performed on the City's wells and booster pumps in a timely manner. Therefore, staff recommends that the City Council award a one (1) year contract in the amount of $300,000 to General Pump Company, Inc. for annual preventive maintenance and repair services on City owned water wells and booster pumps. Mayor and City Council November 1, 2005 Page 2 DISCUSSION The City of Arcadia's water system annually delivers approximately 17,000 acre -feet of potable drinking water through its 13,800 water service.:connections. The water supply for the system is obtained from 13 groundwater production wells. Additionally, the water system is divided up into seven (7) pressure zones, which includes 32 booster pumps that pump water through the distribution system into 16 reservoirs throughout the water system. These reservoirs are used to provide emergency storage, meet daily system demands and to provide adequate storage and pressure in the event of a fire. The Public Works Services Department is responsible for the day-to- dayoperation and maintenance of the City's wells and booster pumps. However, in certain instances work goes beyond staffs capability to repair or perform specialized maintenance services. In these cases, a bid is requested each time we have to repair a pump or well which can be time- and inefficient. Additionally, not having immediate access to a contractor whenever emergency repairs are needed can be costly to the City. An annual. preventive maintenance contract will eliminate the need to go out to bid separately each time a particular service(s),or repair(s) has to be completed. A specific list of work, covering every possible repair scenario, was listed in the proposal to ensure that repair costs were covered for any repair. Bidders, were asked to provide the unit cost associated for each possible work scenario that may or may not be needed for maintenance and /or repairs. Because the bid tabulation includes all repair scenarios the actual contract cost will be significantly lower. The amount recommended for award .:is based on the average actual maintenance and -repair "expenditures experienced over the last several years. Moreover, the City's dependence on the water system makes the annual preventative maintenance wells and booster pumps an essential aspect in continuing to provide a reliable and safe supply to the City's residents and businesses. As a result, this service contract will. provide, timely and reliable preventative maintenance services and repairs to the City's wells and booster pumps. A Notice inviting Bids for this project was advertised and published in local papers. The City Clerk publicly opened three (3) responses on September 25, 2005, with the following results: I . Bidder Location Bid Amount General Pump Company San Dimas $401,500.00 PumpMan Baldwin Park $575,700.00 Evans - Hydro Rancho Dominguez $ No - Bid L. Mayor and City Council November 1, 2005 . Page 3 The bid proposal form was prepared to include all o� ssible labor, equipment and work that would or could be required in performance of the preventative maintenance of City wells and booster pumps. The actual recommended contract amount is based on average expenditures over the last several years, which is more reflective of the type of work that will be needed to maintain and service our wells and booster pumps. Therefore, the actual contract cost will be less than the lowest bidder's proposed figures. Staff has reviewed the bid documents for content and has investigated the low bidder's background and recent projects for competency. It is staffs opinion that General Pump Company, Inc. can satisfactorily perform the work required and recommends that the City Council award a contract in the amount of $300,000 to General Pump Company, Inc. for annual preventative maintenance services on City owned wells and booster pumps. ENVIRONMENTAL IMPACT This project is categorically exempt per Section 15301 Class 1 (d) from the requirements of the California Environmental Quality Act. FISCAL IMPACT $300,000 is budgeted in the 2005/06 operating budget for preventative maintenance services of the City's water wells and booster pump stations. RECOMMENDATION 1. Award a one (1) year contract in the amount of $300,000.00 to General Pump Company, Inc. for the annual preventative maintenance and rehabilitation of City owned wells and booster pumps. 2. Authorize the City Manager and City Clerk to execute a contract in a form approved by the City Attorney Approved by: —� William R. Kelly, City Manager PM:TT:MR:dw c e °• MEMORANDUM Office of the City Attorney DATE: November 1, 2005 TO: MAYOR AND CITY COUNCIL (� FROM: STEPHEN P. DEITSCH, CITY ATTORNEY v SUBJECT: ORDINANCE NO. 2211 AMENDING SECTIONS OF THE ARCADIA MUNICIPAL CODE PERTAINING TO ADULT BUSINESSES AND ADDING A NEW CHAPTER TO THE ARCADIA MUNICIPAL CODE PERTAINING TO THE LICENSING OF ADULT BUSINESSES Recommendation: Introduce SUMMARY: It is recommended that the City Council introduce Ordinance No. 2211 amending sections of the Arcadia Municipal Code pertaining to adult businesses and adding a new chapter to the Arcadia Municipal Code pertaining to the licensing of adult businesses. DISCUSSION: The City's existing adult business regulations are contained in the "Division and Use of Land" provisions of Article IX, Chapter 2, Part 7, Division 9 of the Arcadia Municipal Code. The regulations include licensing requirements as well as adult business operating, zoning and locational requirements. As it is currently structured, any amendment to the City's existing adult business regulations will require a public hearing since California law requires that local governments hold public hearings prior to any land -use and planning amendments. The proposed amendments will reorganize the existing adult business regulations by deleting certain sections pertaining to adult business licensing from Article IX, Chapter 2 and moving them to the "Businesses, Professions, Trades, and Occupations" provisions of Article VI, Chapter 8 of the Arcadia Municipal Code. This will not only move such sections to a more appropriate location, but will allow the City Council to amend such sections in the future without a public hearing. Moreover, the proposed amendments are intended to update the City's adult regulations so they continue to meet the constitutional requirements established by the courts and to protect the City from the potential adverse secondary effects that may be caused by having an adult business located inappropriately in the City. Courts have held that adult businesses provide a forum for protected speech and expression. Although cities cannot ban them entirely from their jurisdiction, they may regulate such businesses to address any adverse secondary effects that they may create including crime, the spread of sexually transmitted diseases and blighting effects. In fact, the United States Supreme Court in a number of decisions has repeatedly upheld the use of secondary effect studies to justify content - neutral regulations aimed at addressing the adverse secondary effects. Studies documenting the adverse secondary effects upon which the . City's regulations are based are summarized in the proposed ordinance, and incorporated herein by reference. Staff has prepared the attached ordinance for consideration and introduction by the City Council. Ordinance No. 2211 includes the following changes to the existing adult business regulations: 1) Adds several findings that cite to studies upon which the City's regulations are based and references case law as a means to document additional secondary effects. 2) Adds certain requirements to obtain an adult business regulatory permit. 3) Eliminates appeals to the City Council by making decisions of the Business License Review Board final. 4) Requires a security guard to be on duty on adult business premises at all times. 5) Adds unrated materials that are characterized by an emphasis on depicting or describing specified sexual activities to the list of materials that are restricted to minors. PA FISCAL IMPACT: There is no anticipated fiscal impact to the City in regard to the City Council's action on this item. RECOMMENDATION Introduce Ordinance No. 2211 amending sections of the Arcadia Municipal Code pertaining to adult businesses and adding a new chapter to the Arcadia Municipal Code pertaining to the licensing of adult businesses. APPROVED: William R. Kelly City Manager Attachment 3 ORDINANCE NO. 2211 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING SECTIONS 9279.1, and 9279.3 THROUGH 9279.16 OF THE ARCADIA MUNICIPAL CODE PERTAINING TO ADULT BUSINESSES, DELETING ALL OR PORTIONS OF SECTIONS 9279.1 and 9279.3 THROUGH 9279.14, AND ADDING A NEW CHAPTER TO THE ARCADIA MUNICIPAL CODE PERTAINING TO LICENSING OF ADULT BUSINESSES THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. FINDINGS. The City Council of the City of Arcadia hereby finds, determines, and declares that: A. The City Council finds that it is necessary and appropriate to amend Article DX, Chapter 2, Part 7, Division 9, entitled "Adult Businesses" of the Arcadia Municipal Code by amending the provisions as they relate to required distance between adult businesses by deleting certain provisions that will be added to a new chapter, located at Article VI, Chapter 8, and entitled "Adult Business License." The public health, safety and welfare of the City of Arcadia and its residents require the enactment of this Ordinance in order to: (1) mitigate and reduce the judicially recognized potential adverse secondary effects of adult businesses, including but not limited to crime, the prevention of blight in neighborhoods and the increased threat of the spread of sexually transmitted diseases; (2) protect the quality of life and neighborhoods in the City, the City's retail and commercial trade, and local property values, and minimize the potential for nuisances related to the operation of adult businesses; and (3) protect the peace, welfare and privacy of persons who own, operate and/or patronize adult businesses. B. The City Council, in adopting this Ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary effects of adult businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington, Department of Construction and Land Use (1989); Austin, Texas, Office of Land Development Services (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana, Department of Metropolitan Development (1984); Houston, Texas, City Council Report (1983 and 1997); Beaumont, Texas (1982); Minnesota Crime Prevention Center, Inc., Minneapolis (1980); Phoenix, Arizona (1979); Los Angeles, California, Department of City Planning (1977); Amarillo, Texas, Planning Department (1977); and Cleveland, Ohio (1977); New York, New York (1994); Newport News, Virginia (1996); Times Square, New York City (1994); Whittier, California (1978); Adams County, Colorado (1990); Dallas, Texas (1997) and El Paso, Texas (1986). The studies and their summaries are available for public review in the City Clerk's office. The City Council finds that these studies are relevant to the problems addressed by the City in enacting this Ordinance to regulate the adverse secondary effects of adult businesses and more specifically finds that these studies provide convincing evidence that: 1. There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by adult businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish by convincing evidence that adult businesses that are not regulated as to operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. 2. Regulations for adult businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather that waiting for problems to be created. C. In developing this Ordinance, the City Council is mindful of legal principles relating to regulation of adult businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of adult businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of adult businesses, including but not limited to: City of Los Angeles v. Alameda Books, 122 S.Ct. 1728 (2002); City of Erie v. Pap's A.M. (Kandyland'), 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW /PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596,107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the United Stated Court of Appeals for the Ninth Circuit, including but not limited to: Gammoh v. City of La Habra (9` Cir. 2005) 395 F.3d 1114; World Wide Video of Washington, Inc. v. City of Spokane, 2004 WL 1171686 (9` Cir.(May 2004)); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Alameda Books v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000), cert. granted 121 S.Ct. 1223 (2001); Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam 1'), 154 F.3d 1097 (9th Cir. 1998); Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam II'), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam III), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); several California cases, including but not limited to: Tily B., Inc. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); Department of Alcoholic Beverage Control v. Alcoholic Beverage Appeals Bd. of California ( "Vicary') 99 Cal.App.4th 880 (2002); and City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to: Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. -2- 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986). Copies of the decisions are available for public review in the City Clerk's office. D. The City Council fiuther finds the following, based in part upon its understanding of the documents, including but not limited to documents describing the experiences of Arcadia, the declarations of police officers in other jurisdictions setting forth their experiences, and judicial decisions in the public record: 1. Evidence indicates that some dancers, models, entertainers, performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical areas in adult businesses (collectively referred to as "performers ") have been found to engage in sexual activities with patrons of adult businesses on the site of the adult business. 2. Evidence has demonstrated that performers employed by adult businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows. 3. Evidence indicates that performers at adult businesses have been found to engage in acts of prostitution with patrons of the establishment. 4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity. 5. As a result of the above, and the increase in incidences of HIV, AIDS, hepatitis B, and hepatitis C which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution and unlawful sex acts at adult businesses in order to protect the health, safety, and well -being of its citizens. The City finds this is relevant to the experience of Arcadia and the need to regulate the secondary effects of adult businesses within the community. 6. The public health, safety, welfare, and morals of all persons in the City must be protected by the establishment of standards to diminish the possibility of infection of contagious diseases. E. The City Council is cognizant of the specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal. The City Council takes legislative notice that according to statistics provided by the Los Angeles County Health Department, in 1998 1,624 cases of AIDS were diagnosed in Los Angeles County and 184 AIDS- related deaths were reported. According to the most recent statistics available for 1999, 464 cases of AIDS were diagnosed in Los Angeles County between January 1, 1999 and June 30, 1999, and 42 AIDS - related deaths were reported for that same period. Further, the City Council takes legislative notice of the County of Orange Communicable Disease Summary 1998, County of Orange Health Care Agency, issued January 2000 ( "Communicable Disease Summary'. The Communicable Disease Summary states that 5,149 cases of AIDS were reported in Orange -3- County between 1982 and 1998. In 1998, 305 cases of AIDS were reported in Orange County, an 8% increase over the 283 reported cases in 1997. As of December 1998, an estimated 2,345 residents of Orange County were living with AIDS, over double the number six years prior. As of December 2000, an estimated 5,700 Orange County residents were living with HIV or AIDS. The City also takes legislative notice of the AIDS Surveillance Report dated July 31, 2001 by the County of San Diego Health and Human Services Agency, Division of AIDS and Community Epidemiology ( "AIDS Surveillance Report") and the report entitled San Diego County HIV /AIDS Status dated June 2000, also by the County of San Diego Health and Human Services Agency ( "AIDS Status Report'). According to the AIDS Surveillance Report, 10,876 AIDS cases were reported throughout the County since 1981 through July 2001, 150 of which were reported in 2001 and 420 of which were reported in 2000. F. The City is also concerned with preventing the spread of other sexually transmitted diseases such as syphilis, gonorrhea, chlamydia, hepatitis B and hepatitis C. The Communicable Disease Summary further indicates that between 1994 and 1998, 211 cases of syphilis were reported, 3,094 cases of gonorrhea were reported, and 17,349 cases of chlamydia were reported in the County. The City also takes legislative notice of the STD Fact Sheet of 2000 by the County of San Diego Health and Human Services Agency ( "STD Fact Sheet ") and the Sexually Transmitted Diseases Annual Summary, San Diego County, 1993 -1994, by the Sexually Transmitted Disease Control Program, dated December 1995 ( "STD Annual Summary"). According to the STD Fact Sheet and STD Annual Summary, 1109 cases of syphilis were reported throughout the County between 1990 and 2000, 27 of which were reported in 2000. With respect to gonorrhea, 27,890 cases of gonorrhea were reported between 1990 and 2000, 1797 of which were reported in 2000. The number of cases of chlamydia reported within the County dramatically exceeds the number of reported cases of syphilis and gonorrhea: 74,079 cases were reported between 1990 and 2000, 8637 of which were reported in 2000: It should also be noted that according to the AIDS Status Report, numerous studies have shown that sexually transmitted diseases such as syphilis, gonorrhea and chlamydia facilitate the transmission of HIV. The City Council has a reasonable basis to believe that the experiences of Los Angeles County, Orange County and San Diego County as to these sexually transmitted or blood borne diseases are relevant to the experiences of Arcadia. G. The City Council has also determined that live entertainment facilities with or without the service of alcohol bring deleterious secondary effects into the community and it is necessary to protect the health, safety, and general welfare of the citizens of the City of Arcadia. In addition to the findings in studies conducted in other cities regarding increases in crime rates and blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev, Inc., v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); and Tily A v. City of Newport Beach (1999) 69.Cal.App.4th 1, regarding how live adult entertainment facilities result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. The City has a reasonable basis to conclude that these secondary effects are in play for live entertainment facilities which do not serve alcohol which are many times referred to as "nude juice bars" but in most cases provide totally nude dancers on a raised center stage and offer some IM type of off stage activity. It is important to note that the same dancers who perform on stage totally nude then add a minimal amount of clothing and move immediately off stage in most cases offering some type of off stage fare typically referred to as lap dances wherein the entertainer will mount the patron and rub various body parts on the patron's clothed genitals often times until the patron ejaculates. The City has relied on information from police officers from its jurisdiction as well as information as to the experiences of sister communities to support its finding that live entertainment facilities have increased crime, including drug related activities, all of which place an added burden on the resources of the City's police department. H. The City also takes legislative note of the number of courts that have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult businesses that provide live entertainment, including, based on the presence of secondary effects including, but not limited to: Gammoh v. City of La Habra (9 Cir. 2005) 395 F.3d 1114; Tily B. v. City of Newport Beach (1999) 69 Cal.AppAth 1; Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104, 1110 -11 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). The City Council finds that a 6 foot separation is appropriate for reasons which include, but are not limited to: the fact that 6 feet is approximately the distance of two outstretched arms; and it also assists in enforcing the prohibitions against physical contact and prevents the transmission of illegal drugs. The City Council further finds that the city has continuously and correctly interpreted its existing operational requirements to permit off -stage performances so long as such off -stage performances are performed no closer than within 6 feet of a patron and that such interpretation is consistent with the City Councils intent. I. The City Council recognizes the possible harmful effects on children and minors exposed to the effects of adult businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 1075 (1995). J. While the City Council desires to protect the rights conferred by the United States Constitution to adult businesses, it desires to do so in a manner that ensures the continued and orderly use and development of property within the City and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of adult businesses. K. Locational and operational limits on adult facilities are a legitimate and reasonable means of reducing adult businesses' secondary effects and helping to assure that such businesses comply with reasonable regulations to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Arcadia residents, protect -5- citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The requirements contained in this Ordinance do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in the City of Arcadia. L. The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that adult businesses are free to operate seven (7) days a week for sixteen (16) hours per day. The City Council takes note of the proliferation of adult material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser -Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the hiternet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. An adult business no longer has to be physically located in a City to be available in the community. M. Zoning, licensing or regulatory permits, along with operating standards are a legitimate and reasonable means of ensuring that adult businesses are located in places and conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators, businesses, licensees and permittees comply with reasonable regulations related to such requirements to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Arcadia residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. N. The requirements contained in this Ordinance do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in Arcadia, and a sufficient and reasonable number of alternative locations for adult businesses are provided by the City of Arcadia. The City Council takes legislative notice of the United States Supreme Court decision in Renton that requires the City provide adult businesses a reasonable opportunity to open and operate. The City Council also takes legislative notice of the Ninth Circuit's decision in Topanga Press, Lim v. City of Long Beach; Isbell v. City of San Diego; and World Wide Video v. City of Spokane with respect to availability of sites for adult businesses and finds that there are sufficient sites available for adult businesses within the City. O. It is not the intent of the City Council of the City of Arcadia in enacting this Ordinance or any provision here of to condone or legitimize the distribution of obscene material, E2 and the City and its Council recognize that State law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce State obscenity statutes against such illegal activities in Arcadia. P. The City Council does not intend to regulate in any area preempted by California law, including but not limited to, regulation of obscene speech, nor is it the intent of the City Council to preempt regulations of the State Department of Alcoholic Beverage Control ( "ABC'). Q. Nothing in this Ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof. SECTION 1. Chapter 2, Article XI of the Arcadia Municipal Code is hereby amended by deleting Sections 9279.1 and 9279.4 through 9279.14 of Chapter 2, Article XI and relocating them to Chapter 8, Article VI of the Arcadia Municipal Code, with renumbered sections. SECTION 2. A new Section 9279.1 is hereby added to Chapter 2, Article XI of the Arcadia Municipal Code to read in its entirety as follows: "9279.1. DEFINITIONS The definitions contained in the Arcadia Municipal Code, specifically those found in Chapter 8, Article VI shall govern for purposes of this chapter." SECTION 3. Section 9279.3 of Chapter 2, Article XI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9279.3. PERMIT REQUIREMENTS A. All adult businesses that meet the zoning and location requirements set forth in this Division are also subject to the adult business regulatory permit requirements of this Section, and the requirements of Chapter 8, Article VI, as well as all other applicable ordinances of the City and laws of the State of Califomia. B. Applications must be complete and accompanied by the following: 1. Two (2) sets of preliminary site plans drawn to scale and clearly dimensioned which include but are not limited by the following: a) Scale and north arrow. b) Street addresses of lot or lots to be included as part of the adult entertainment business. c) Size of lots accurately dimensioned. d) Location and size of all existing and proposed structures. e) Location and size of all existing and proposed parking stalls. -7- f) Location of all landscaped area. g) Location of trash area(s). h) Location of proposed exterior lighting system as required by Section 6805 of Chapter 8, Article VI. 2. Two (2) sets of preliminary floor plans drawn to scale including square footage and clearly dimensioned showing the interior configuration of the premises and showing compliance with the performance standards set forth in the Ordinance codified in this Division. 3. A radius map(s) illustrating: a) The distance from any other adult business measured between the nearest exterior wall of the facility or tenant space housing such use or proposed use along the shortest route intended and available for public traverse between said uses; and b) The distance from any existing residentially zoned property, park, recreation area, religious establishment, library, school or day care facility. The distances set forth above shall be measured between the nearest exterior wall of the facility or tenant space housing the adult business or the proposed adult business and the nearest property line included within the residential zone, park, recreation area, religious establishment, library, school or day care facility, along a straight line extended between two (2) points." 4. The Director may waive receipt of some of the above information if the Director determines that such information is not necessary. The Director may require additional information if the Director deems such information necessarily to adequately evaluate the application. SECTION 4. Section 9279.15 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 9279.4. SECTION 5. Section 9279.16 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 9279.5. SECTION 6. Chapter 8, entitled "Adult Business License," is hereby added to Article VI of the Municipal Code with sections numbered 6800 et seq. SECTION 7. Section 6800 is hereby added to Chapter 8, Article VI of the Arcadia Municipal Code to read in its entirety as follows: The intent of this chapter is to regulate uses which, because of their very nature, are believed to have any of the recognized significant secondary effects on the community which include, but are not limited to: depreciated property values and increased vacancies in residential and commercial areas in the vicinity of Adult Oriented Businesses; interference with residential, commercial and industrial property owners' enjoyment of their property when such property is located in the vicinity of Adult Oriented Businesses due to increased crime, debris, noise and vandalism; higher crime rates in the vicinity of Adult Oriented Businesses; and blighting conditions such as low -level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the Adult Oriented Businesses. In approving the regulations contained in this article, the city council has reviewed detailed studies, reports and letters prepared by other jurisdictions and its own staff with respect to the detrimental social, health and economic effects on persons and properties surrounding Adult Oriented Businesses. These studies include Upland, California (1992); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); State of Minnesota, Attorney General Report (1989); Newport news, Virginia (1996); St. Paul, Minnesota (1987); Corpus Christi, Texas (1995); National Law Center (1995); and Azusa (2003) (collectively "Studies "). The Studies substantiate the adverse, secondary effects of adult businesses. It is neither the intent nor effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors or exhibitors of sexually oriented materials to their intended market. Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof." SECTION 8. Section 6801 (formerly Section 9279.1) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6801. DEFINITIONS. In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this Division and Article VI, Chapter 7, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail. A. "Adult arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image- producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices." 0 B. "Adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of an adult business used for any of the following purposes: 1. Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas "; or 2. Where "adult arcade" devices are located. C. "Adult business" shall mean: A business establishment or concern that as a regular and substantial course of conduct operates as an adult retail store, adult motion picture theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio (as these phrases are defined in this section); or 2. A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes "adult oriented material' or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas" but not including those uses or activities (as these phrases are defined in this section) which are preempted by State law. D. "Adult cabaret" shall mean a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment." E. "Adult hotelimotel " shall mean a "hotel' or "motel' (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image - producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or "specified anatomical areas" (as these phrases are defined in this section). F. "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons, including but not limited to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including but not limited to a topless and/or bottomless dancers, go -go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas"; and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities" whether or not the specified anatomical areas are covered. -10- G. "Adult modeling studio" shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such consideration. "Adult modeling studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California. H. "Adult motion picture theater" shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, digital video disks, holograms, virtual reality devices, or similar electronically- generated reproductions that is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." I. "Adult oriented material" shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." "Adult oriented material" shall include "sexually oriented merchandise." J. "Adult retail store" shall mean a business establishment having as a regular and substantial portion of its stock in trade, "adult oriented material" and/or "sexually oriented merchandise." K. "Day care facility' or "day care center" means any child day care facility as defined in Section 1596.750 of the California Health and Safety Code other than family day care homes. L. "Establishment of an adult business" shall mean any of the following: 1. The opening or commencement of any "adult business" (as defined earlier) as a new business; 2. The conversion of an existing business, whether or not an "adult business," to any "adult business "; 3. The addition of any "adult business" to any other existing "adult business "; 4. The relocation of any "adult business "; or 5. Physical changes that expand the square footage of an existing "adult business" by more than ten percent (10 %). -11- M. "Owner /permit holder" shall mean any of the following: (1) the sole proprietor of an adult business; (2) any general partner of a partnership that owns and operates an adult business; (3) a corporation; (4) the owner of a controlling interest in a corporation or limited liability company that owns and operates an adult business; or (5) the person designated by the officers of a corporation or the members of a Limited Liability Company to be the permit holder for an adult business owned and operated by the corporation. N. "Park" shall mean any park, playground, swimming pool, golf course or athletic field within the City which is under the City's control, operation and management, and the Arcadia County Park. O. "Performer" shall mean any person who is an employee or independent contractor of an adult business, and who, with or without any compensation or other form of consideration, performs adult live entertainment for patrons of an adult business. Performer does not include a patron. P. "Religious institution" shall mean structure or facility that is used primarily for religious worship and related religious activities such as a church, temple or synagogue. Q. "Residential zone" shall mean any property within the City which carries a zoning designation of: R -M Residential Mountainous Zone Single Family Zone; R -O Residential First One- Family; R -1 Residential Second One - Family; R -2 Medium Density Multiple - Family Residential Zone; and R -3 Multiple Family Residential Zone. R. "School" shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and/or is maintained pursuant to standards set by the Board of Education of the State of California and has an approved use permit, if required under the applicable jurisdiction. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education under the jurisdiction of the California Department of Education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university. It does not include private instructional and/or tutoring facilities. S. "Sexually oriented merchandise" shall mean sexually oriented implements, paraphernalia, or novelty items, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado - masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." sp_a T. "Specified anatomical areas" shall mean and include any of the following: Less than completely and opaquely covered, and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered human: a) genitals, pubic region; b) buttocks, anus; or c) female breasts below a point immediately above the top of the areola; or 2. Human male genitals in a discernibly turgid state, even if completely or opaquely covered. U. "Specified sexual activities" shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering: 1.. Human genitals in a state of sexual stimulation or arousal; and/or 2. Acts of human masturbation, sexual stimulation or arousal; and/or 3. Simulated sexual intercourse; and/or 4. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or 5. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or 6. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or 7. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast. (Former Section 9279.1 repealed and new Section 9279.1 added by Ord. 2178 adopted 5- 6 -03)" SECTION 9. Section 6802 is hereby added to Chapter 8, Article VI of the Arcadia Municipal Code to read in its entirety as follows: .:1 ; ul : 4=2-2107 In addition to the requirements of Section 9279, et seq., of this Code, no adult business shall be permitted to operate, engage in, conduct or carry on business within the City unless the owner of the business first obtains both an Adult Business Regulatory permit and a business license from the City." -13- SECTION 10. Section 6803 (formerly apart of Section 9279.3) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6803. PERMIT REQUIREMENTS. A. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult business within the City of Arcadia unless the person first obtains, and continues to maintain in full force and effect, an adult business regulatory permit as herein required. Any occurrence of the "establishment of an adult business" as defined in Arcadia Municipal Code Section 6801(L) shall require a new application for an adult business use permit. The adult business use permit shall be subject to the development and operational standards contained in Sections 6805. B. Permit applicants shall file a written, signed, and verified application on a form provided by the Director of Development Services or designee (hereinafter referred to as "Director "). Any changes in information on an application shall be submitted on a supplemental application within ten (10) working days of each such change. Such application shall contain the following information and shall also include applicant's acknowledgment that he /she has read and understands all requirements set forth in Section 6805. 1. If the permit applicant is an individual, the individual shall state his or her legal name, including any aliases, telephone number, home address (including previous addresses), tax identification number, social security number, information regarding past adult business ownership, and shall submit satisfactory written proof that he or she is at least eighteen (18) years of age. 2. If the permit applicant is a partnership, the partners shall state the partnership's complete name, address, and telephone number, and the names (including aliases), telephone number, home address (including previous addresses), tax identification number, social security number, and information on past adult business ownership of all partners. The applicant and all the partners shall also submit satisfactory written proof that he or she is at least eighteen (18) years of age and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any. 3. If the permit applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State of California, the names and capacities of all officers and directors, the name of the registered corporate agent, and the address of the registered office for service of process. 4. If the permit applicant is an individual, he or she shall sign the application. If the permit applicant is other than an individual, each individual or entity with a ten percent (10 %) or greater interest in the business entity shall sign the application. Any individual who signs the application must also provide his or her name, including any aliases, home address (including previous addresses), telephone number, date of birth, social security number, information regarding past adult business ownership, and shall submit satisfactory written proof that he or she is at least eighteen (18) years of age. -14- 5. If the permit applicant intends to operate the adult business under a name other than that of the permit applicant, the permit applicant shall file the fictitious name of the adult business and show proof of registration of the fictitious name. 6. A description of the type of adult business for which the permit is requested and the proposed address where the adult business will operate, plus the names and addresses of the owners and lessors of the adult business site. If premises are leased, a complete copy of the current lease must be attached. The property owner must sign the application. 7. The address to which notice of action on the application is to be mailed. 8. The full names, aliases, if any, addresses, telephone numbers and date of birth of all employees, independent contractors, and other persons who will perform at the adult business, who are required by Section 6700 et seq. to obtain an adult business performer license. This information shall be updated by the licensee of the adult business establishment within five (5) days of retention of any new or additional employees, independent contractors, and other persons who will perform at the adult business, who are required by Section 6700 et seq. to obtain an adult business performer license. All persons who have been issued an adult business regulatory permit shall promptly supplement the information provided as part of the application for the permit with the names of all employees, independent contractors, or other persons, who are required to obtain an adult business performer license, within ten (10) working days of any change in the information originally submitted. The information obtained by the City pursuant to this subsection B(8) shall be kept confidential. 9. Permit applications shall include a signed and verified statement that: A. The permit applicant, if an individual, or each shareholder, partner, officer and director, or other party possessing a ten percent (10 %) or greater interest, if a partnership or corporation, has not pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex - related offense; or B. if there has been a conviction or a plea, then: (1) More than two (2) years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a misdemeanor; or (2) More than five (5) years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a felony, or (3) More than five (5) years have elapsed between the date of the last conviction or plea, or the date of release from confinement for the last conviction or plea, whichever is the later date, and the date of application if the convictions or pleas are two (2) or more misdemeanors or a combination of misdemeanor offenses occurring within any twenty-four (24) month period. -15- C. The completed application shall be accompanied by a non - refundable application fee. Said fee shall be set forth by Resolution of the City Council. D. The completeness of an application for an adult business regulatory permit shall be determined by the Director within five (5) working days of its submittal. If the Director determines that the permit application is incomplete, the Director shall immediately notify in writing the permit applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Such writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete. Within five (5) working days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in accordance with the provisions set forth above. Evaluation and notification shall occur as provided herein until such time as the application is found to be complete. E. The fact that a permit applicant possesses other types of State or City permits or licenses does not exempt the permit applicant from the requirement of obtaining an adult business regulatory permit." SECTION 11. Section 6804 (formerly Section 9279.4) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6804. INVESTIGATION & ACTION ON APPLICATION FOR ADULT BUSINESS REGULATORY PERMIT A. The completeness of an application for an adult business regulatory permit shall be determined by the Director of Development Services or his designee (hereinafter 'Director ") within five (5) working days of its submittal. If the Director determines that the permit application is incomplete, the Director shall immediately notify in writing the permit applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Such writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete. Within five (5) working days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in accordance with the provisions set forth above. Evaluation and notification shall occur as provided herein until such time as the application is found to be complete. B. Upon receipt of a completed application and payment of the application and permit fees, the Director shall immediately write or stamp the application "Received" and, in conjunction with City staff and the Chief of Police, shall promptly investigate the information contained in the application to determine whether an adult business regulatory permit shall be granted. -16- C. Within ten (10) working days of receipt of the completed application, the Director shall issue or deny the license, unless extended for five (5) additional working days upon a showing of good cause. Only one such extension shall be permitted unless requested by the applicant. D. In reaching a decision, the Director shall not be bound by the formal rules of evidence in the California Evidence Code. E. The failure of the Director to render any decision within the time frames established in any part of this Section shall be deemed to constitute an approval, subject to appeal to the Business License Review Board, pursuant to Section 6807. The Director's decision shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this Code. F. Notwithstanding any provisions in this Section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this Section or may request a continuance regarding any decision or consideration by the City of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications. G. The Director shall grant or deny the application in accordance with the provisions of this Section, and so notify the applicant as follows: 1. The Director shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 2. If the application is denied, the Director shall attach to the application a statement of the reasons for the denial. 3. If the application is granted, the Director shall stamp "Approved" on the application. H. The Director shall grant the application and issue the adult business regulatory permit unless the application is denied based upon one (1) or more of the criteria set forth in subsection J below. I. If the Director grants the application, the applicant may begin operating the adult business for which the permit was sought, subject to strict compliance with the development and operational standards and requirements of this Division. The permit holder shall post the permit conspicuously in the premises of the adult business. J. The Director shall deny the application for any of the following reasons: 1. The adult business does not comply with the zoning and location standards found in Section 9279.2. -17- 2. The adult business does not comply with the development, operational or performance standards found in this Division. 3. The permit applicant, his or her employee, agent, partner, director, officer, shareholder with a ten percent (10 %) or greater interest, or manager has made any false, misleading, or fraudulent statement of material fact in the application for an adult business regulatory permit or in any report, record, or document required to be filed with the application, the Police Department, Sheriff, other law enforcement agency, or other department of the City. 4. The permit applicant is under eighteen (18) years of age. 5. The required application fees have not been paid. 6. The permit applicant, if an individual, or any shareholder, partner, officer, director or other party possessing a ten percent (10 1 /o) or greater interest, if a partnership or corporation, has: (a) Pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex - related offense; and (b) (1) Less than two (2) years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a misdemeanor; or (2) Less than five (5) years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a felony; or (3) Less than five (5) years have elapsed between the date of the last conviction or plea, or the date of release from confinement for the last conviction or plea, whichever is the later date, and the date of application if the convictions or pleas are two (2) or more misdemeanors or a combination of misdemeanor offenses occurring within any twenty-four (24) month period. 7. Within the past eighteen (18) months the applicant, including, but not limited to, an owner, partner or shareholder with a 10% or greater financial interest has been found to have violated any provision of this division, has had an adult oriented business permit or similar entitlement permitting the establishment of an adult or sexually oriented business revoked, regardless of whether such revocation occurred within the City or in some other jurisdiction. K. An applicant cannot re -apply for an adult business regulatory permit for a location for which the applicant previously submitted an application within one (1) year from the date of prior denial, if the denial is based on Subsection (J)(6). Denial for any other reason shall be without prejudice to re- application at any time. L. Any affected person may appeal the decision of the Director in writing in accordance with the provisions of Section 6807." M SECTION 12. Section 6805 (formerly Section 9279.5) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6805. DEVELOPMENT AND OPERATING STANDARDS. A. Hours of Operation. It shall be unlawful for any permitee, owner, operator, manager or employee of an adult business to allow such adult business taremain open for business, or to permit any employee or performer to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 10:00 a.m. of any day excepting herefrom an "adult hotel/motel." B. Exterior Lighting Requirements. All exterior areas, including parking lots, of the adult business shall be illuminated at a minimum of 1.50 foot - candle, maintained and evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours. C. Interior Lighting Requirements. All interior areas of the adult business excepting therefrom adult hotels and motels shall be illuminated at a minimum of 1.00 foot - candle, maintained and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours. D. Minors' Access. 1. To the extent that it is in conformity with the Penal Code, movies, videotapes, digital video disks (DVDs), compact disks (CDs) and laser disks rated "X" or "NC -17" by the Motion Picture Association of America ( "MPAA ") or which have not been submitted to the MPAA for a rating and which are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas shall be restricted to persons at least eighteen (18) years of age. If an establishment that is not otherwise prohibited from providing access to persons under eighteen (18) years of age sells, rents, or displays movies, videos, DVDs, or laser disks that have been rated "X" or rated "NC -17" by the MPAA, or which have not been submitted to the MPAA for a rating, and which consist of images which are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser disks shall be located in a specific section of the establishment where persons under the age of eighteen (18) shall be prohibited. 2. For material relative to adult businesses not covered by Subsection (D)(1), of this Section, access shall be restricted to persons over eighteen (18) years of age. 3. It shall be unlawful for any employee, owner, operator, responsible managing employee, manager or permittee of an adult business to allow any person under the age of eighteen (18) years upon the premises or within the confines of any adult business, either as a patron or employee, if no liquor is served, or under the age of twenty-one (21) if liquor is served. SLR E. Regulation of Adult Booth/Individual Viewing Area. 1. No adult booth/individual viewing area shall be occupied by more than one (1) individual at a time. 2. Each adult booth/individual viewing area within the adult business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two -way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. A manager shall be stationed in the main aisle at all times. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment is viewed is visible from one main aisle. The entire body of any patron in any_ adult booth/individual viewing area must be visible from the main aisle without the assistance of mirrors or other device. 3. No doors are permitted on an adult booth/individual viewing area. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individual viewing areas shall be permitted. 4. No holes or other openings (commonly known as "glory holes ") shall be permitted between adult booths /individual viewing areas. Any such hole or opening shall be repaired within twenty-four (24) hours using "pop" rivets to secure metal plates over the hole or opening to prevent patrons from removing the metal plates. 5. No beds shall be permitted in an adult booth/individual viewing area. F. Interior of Premises. No exterior door or window on the premises of an adult business shall be propped or kept open at anytime while the business is open and any exterior windows shall be covered with opaque coverings at all times. G. On -Site Manager -- Security Measures. All adult businesses shall have a responsible person who shall be at least twenty-one (21) years of age and shall be on the premises to act as manager at all times during which the business is open. The individual designated as the on -site manager shall be registered with the Director to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises. All adult businesses shall provide a security system that visually records and monitors all parking lot areas during all business hours. At least one (1) security guard shall be on duty outside the premises, patrolling the grounds and parking lot at all times. The security guard shall be charged with preventing violations of law and enforcing the provisions of this chapter. All security guards shall be uniformed so as to be readily identifiable as a security guard by the public. No person acting as a security guard shall act as a door person, ticket taker or seller, or any similar function, while acting as a security guard. For all adult oriented businesses providing live entertainment, an additional security guard shall be provided with each increase in maximum -20- occupancy of 200 persons. Security guards shall be licensed under the California Private Security Services Act, Business & Professions Code Section 7580 et seq. H. Sign Requirements. All adult businesses shall comply with the following sign requirements, in addition to those otherwise set forth in the Arcadia Municipal Code. Should a conflict exist between the other requirements of the Arcadia Municipal Code and this subsection, the more restrictive shall prevail. 1. If an adult business does not serve alcohol, it shall post a notice inside the establishment, within ten (10) feet of every entrance used by customers for access to the establishment, stating that persons below the age of eighteen (18) years of age are prohibited from entering onto the premises or within the confines of the adult business. This notice shall be posted on a wall in a place of prominence. The dimensions of the notice shall be no less than six (6) inches by six (6) inches, with a minimum typeface of twenty -five (25) points on contrasting background. If the adult business serves alcohol, it shall comply with all notice and posting requirements of the Alcoholic Beverage Control Department. 2. No material relative to adult businesses on the premises shall be displayed in window areas or any area where they can be viewed from the sidewalk in front of the building. I. Adult Live Entertainment -- Additional Operating Requirements. The following additional requirements shall pertain to adult businesses providing live entertainment. No person, association, partnership, or corporation shall engage in, conduct or carry on, or permit the operation of an adult business to engage in, conduct or carry on unless all of the following requirements are met: 1. No employee, owner, operator, responsible managing employee, manager or pernnttee of such use shall allow any person below the age of eighteen (18) years upon the premises or within the confines if no liquor is served, or under the age of twenty-one (2 1) if liquor is served. 2. Except as provided below, no performer then performing adult live entertainment characterized by the exposure of specified anatomical areas or specified sexual activities shall perform such adult live entertainment at an adult business except upon a permanently fixed stage at least eighteen (18) inches above the level of the floor surrounded by a railing at least thirty (30) inches high which railing is set back from the outside edges of the stage by six (6) feet. The performer then performing live entertainment characterized by the exposure of specified anatomical areas or specified sexual activities shall only perform such live entertainment six (6) feet or more from a patron while the performer is so performing. 3. A performer shall only be permitted to perform off -stage adult live entertainment characterized by the exposure of specified anatomical areas or specified sexual activities when such performer is at least six (6) feet from a patron while the performer is so performing. This provision shall not apply to an individual viewing area where the performer is completely separated from the patron by a floor to ceiling permanent solid barrier enclosed on all sides such that access by the patron is not possible. -21- 4. No performer then performing adult live entertainment characterized by the exposure of specified anatomical areas or specified sexual activities shall have physical contact with any patron, and no patron shall have physical contact with any performer, while the performer is performing on the premises. In addition, while on the premises, no performer shall have physical contact with a patron and no patron shall have physical contact with a performer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft or the buttocks, perineum, anal region, or female breast with any part or area of any other person's body either before or after any adult live entertainment by such performer. This prohibition does not extend to incidental touching. Patrons shall be advised of the separation and no touching requirements by signs conspicuously placed on the barrier between patrons and performers. If necessary, patrons shall also be advised of the separation and no touching requirements by employees or independent contractors of the adult business. 5. All employees, except therefrom performers while performing, shall, at a minimum while on or about the premises or tenant space, wear an opaque covering which covers their specified anatomical areas. 6. No performer then performing adult live entertainment characterized by the exposure of specified anatomical areas or specified sexual activities shall accept directly from a patron, and no patron shall directly hand to such performer any tip or gratuity, throw tips to performers, or place tips in the performers' costumes. Patrons shall be advised of these tipping and gratuity requirements by signs conspicuously placed on the premises. If necessary, patrons shall also be advised of the tipping and gratuity requirements by employees or independent contractors of the adult business. 7. The adult business shall provide dressing rooms for performers that are separated by gender and exclusively dedicated to the performers' use, and which the performers shall use. Same gender performers may share a dressing room. Patrons shall not be permitted in dressing rooms. 8. The adult business shall provide an entrance /exit for performers which is separate from the entrance /exit used by patrons, which the performers shall use at all times. 9. The adult business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the adult business shall provide a minimum three (3) foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which actually results in) preventing any physical contact between patrons and performers. Nothing in this Section is intended to exempt the adult business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility. 10. Fixed rail(s) at least thirty (3 0) inches in height shall be maintained establishing the separations between performers and patrons required by this Subsection. _22_ J. Adult Motion Picture Theater. An adult motion picture theater shall observe the following special requirements: 1. If the theater contains a hall or auditorium area, the area shall comply with each of the following provisions: a. Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the area; b. Have a continuous main aisle alongside of the seating areas in order that each person seated in the areas shall be visible from the aisle at all times; and c. Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area. 2. If an adult motion picture theater is designed to permit outdoor viewing by persons seated in automobiles, it shall have the motion picture screen so situated, or the perimeter of the establishment so fenced, that the material to be seen by those persons may not be seen from any public right -of -way, day care facility, park, school, or religious institution, as those terms are defined in this Division. K. Regulation of Public Restroom Facilities. If the adult business is required to provide restrooms for patron use, it shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from adult oriented material. Only one (1) person shall be allowed in each restroom at any time, unless otherwise required by law, in which case the adult business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant shall ensure that no person of the opposite sex is permitted into the restroom, and that not more than one (1) person is permitted to enter a restroom stall, unless otherwise required by law, and that the restroom facilities are used only for their intended sanitary purposes. Access to restrooms for patron use shall not require passage through an area used as a dressing area by performers. L. Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag at least once a day. (Amended by Ord. 2178 adopted 5- 6 -03)" SECTION 13. Section 6806 (formerly Section 9279.6) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6806. TRANSFER OF ADULT BUSINESSES OR ADULT BUSINESS REGULATORY PERMITS. A. A permit holder shall not operate an adult business under the authority of an adult business regulatory permit at any place other than the address of the adult business stated in the application for the permit. -23- B. In the event of a transfer of ownership of the adult business or the adult business regulatory permit, the new owner shall be fully informed by the transferor of the requirements of this Division, including the operational and development standards of Section 6805 and the provisions relating to adult business performer licenses including disqualification from certain criminal convictions pursuant to Sections 6804(J)(6) and 6703(C)(3). C. In the event of a transfer of the adult business or the adult business regulatory permit, the transferee must provide the City with the following information at least thirty (30) days prior to the transfer. D. No permit shall be transferred to a transferee with criminal convictions as set forth in Section 6804(J)(6). Such transfers are deemed to be null and void. E. If the permit holder is a corporation and the corporation retains ownership of the business, the sale of the corporate stock shall not be considered a transfer of an adult business regulatory permit under this section. The new shareholders shall provide all information required under Section 6803 (13)(4) within ten (10) working days of sale of stock." SECTION 14. Section 6807 (formerly Section 9279.7) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6807. DENIAL, SUSPENSION OR REVOCATION OF ADULT BUSINESS REGULATORY PERMITS /APPEAL PROCEDURE. A. On determining that the grounds for permit denial, suspension, or revocation exist, the Director shall furnish written notice of the proposed denial, suspension, or revocation to the permit applicant or permit holder. Such notice shall set forth the time and place of a public hearing before the Business License Review Board (hereinafter referred to as the "Board ") and the ground or grounds upon which the hearing is based, the pertinent Arcadia Municipal Code Sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the address of the permit applicant or permit holder provided to the City, or shall be delivered to the permit applicant or permit holder personally or at the business, at least ten (10) working days prior to the hearing date. The hearing shall be consistent with the following requirements: 1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. 2. The Board shall not be bound by the formal rules of evidence. 3. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or witness at the request of the permit applicant or permit holder. Extensions of time or continuances sought by a permit applicant or permit holder shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on permit denials, suspensions, or revocations. 191S 4. The Board may conduct the hearing itself or may delegate the hearing to a retired judge who shall hear the case and make a proposed decision to the Board within five (5) working days of the conclusion of the hearing. Upon receipt of the designee's proposed decision, the Board shall convene within four (4) working days to render its decision. If the Board finds and determines that there are grounds for denial, suspension or revocation, the Board shall impose one of the following: a. Denial of the permit or conditional granting of the permit; b. Suspension of the permit for a specified period not to exceed six (6) months; or c. Revocation of the permit. The Board shall render a written decision that shall be hand delivered or overnight mailed to the permit holder within five (5) working days of the Board convening to render its decision. B. A permit maybe suspended or revoked based on the following causes arising from the acts or omissions of the permit holder, or an employee, agent, partner, director, stockholder with a ten percent (10 %) or greater interest, or manager of the permittee (unless an entertainer is an employee, any entertainer shall be deemed to be an agent of the permittee for purposes of this chapter): 1. The use or building, structure, equipment, or location used by the adult business fails to comply with applicable building, fire, electrical, plumbing, health, and those zoning requirements of the Arcadia Municipal Code or this Division relating to adult businesses, including the adult business development and operating standards contained in Section 6805. 2. The permit holder has failed to obtain or maintain all required City, County, and State licenses and permits. 3. The permit holder has made any false, misleading, or fraudulent statement of material fact in the application for an adult business regulatory permit. 4. The permit is being used to conduct an activity different from that for which it was issued. 5. The permit holder has failed to submit and/or update the information pertaining to performers in accordance with Section 6803(B)(8). 6. An adult business has been operated without a responsible adult on the premises, officially acting in the capacity of manager, at all times during which the business is open or operating. -25- 7. That a permittee, including, but not limited to, an owner, partner, or shareholder with a ten percent (10 %) or greater financial interest, or employee of an adult business, has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex - related offense and (a) less than two (2) years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two (2) or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period. 8. That an individual employed by the adult business has been convicted of two (2) or more sex - related offenses that occurred in or on the licensed premises within a twelve (12) month period and was an employee of the adult business at the time the offenses were committed. 9. That the use for which the approval was granted has ceased to exist or has been suspended for more than six (6) months. 10. That the transferee /new owner of an adult business or adult business regulatory permit fails to comply with the requirements of Section 6806. 11. The permit holder, employee, agent, partner, director, stockholder with at least a ten percent (10 %) interest in the business, or manager has knowingly allowed of permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult business; or a permittee has been convicted of violating any of the following State laws on the premises of the adult business: a. Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation. b. Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. c. The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315, 316, 318 of the California Penal Code. d. Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in Sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code. e. Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. -26- f An act or omission in violation of any of the requirements of this Division if such act or omission is with the knowledge, authorization, or approval of the permit holder or is as a result of the permit holder's negligent supervision of the employees of the adult facility. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. C. In the event a permit is revoked (or suspended) pursuant to this Section, another adult business regulatory permit to operate an adult business shall not be granted to the permittee, or any other owner, manager, director, board member or immediate family member of any of the above within eighteen (18) months after the date of such revocation (or if suspended, during the period of suspension). D. Nothwithstanding any other provision of this Code, the decision of the Business License Review Board on any suspension or revocation shall be deemed final." SECTION 15. Section 6808 (formerly Section 9279.8) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "6808. JUDICIAL REVIEW. A. The time for a court challenge to a decision of the Board under Section 6807 is governed by California Code of Civil Procedure § 1094.8. B. Notice of the Board's decision and its findings under Section 6807 shall include citation to California Code of Civil Procedure & 1094.8. C. Any permit applicant or permit holder whose permit has been denied, suspended, or revoked pursuant to Sections 6804 and/or 6807 shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8. D. A suspension or revocation of an adult oriented business license shall be effective upon the latter to occur of the following: (1) the expiration of the time period within which the permittee can commence judicial review of the revocation pursuant to Code of Civil Procedure Section 1094.8 if no such action for review is filed; or (2) if judicial review is commenced, upon issuance of judgment in the trial court." SECTION 16. Section 9279.9 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 6809 in Chapter 8, Article VI of the Arcadia Municipal Code. SECTION 17. Section 6810 (formerly Section 9279.10) of Chapter 8, Article VI of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: _27_ "6810. EMPLOYMENT OF AND SERVICES RENDERED TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS PROHIBITED; TWENTY -ONE (21) IF ALCOHOLIC BEVERAGES ARE SERVED. A. Employees. Employees of an adult business must be at least eighteen (18) years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, employee, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not at least eighteen (18) years of age. If alcoholic beverages are served at the adult business, employees of the adult business must be at least twenty-one (21) years of age. If alcoholic beverages are served at the adult business, it shall be unlawful for any owner, operator, manager, partner, director, officer, employee, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not twenty-one (21) years of age; and said persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the adult business. The provisions of this subsection do not apply to service employees (e.g., janitors, repair and maintenance workers, or similar service workers) whose work is not conducted during the normal hours of operation as set forth in Section 6805. B. Patrons. Patrons of an adult business must be at least eighteen (18) years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, employee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least eighteen (18) years of age. If alcoholic beverages are served at the adult business, patrons must be at least twenty-one (21) years of age. If alcoholic beverages are served at the adult business, it shall be unlawful for any owner, operator, manager, partner, director, officer, employee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least twenty-one (21) years of age; and said persons shall exercise reasonable care in ascertaining the true age of persons entering the adult business. C. X -rated Movies. The selling, renting and/or displaying of movies, videotapes, digital video disks (DVDs), compact disks (CDs) and laser disks rated "X" or "NC -17" by the Motion Picture Association of America ( "MPAA ") shall be restricted to persons at least eighteen (18) years of age or older. If an establishment that is not otherwise prohibited from providing access to persons under eighteen (18) years of age sells, rents, or displays movies, videos, DVDs, CDs, or laser disks that have been rated "X" or rated "NC -17" by the MPAA, or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser disks shall be located in a specific section of the establishment from which persons under the age of eighteen (18) shall be prohibited." SECTION 18. Section 9279.11 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 6811 of Chapter 8, Article VI of the Arcadia Municipal Code. on SECTION 19. Section 9279.12 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 6812 of Chapter 8, Article VI of the Arcadia Municipal Code. SECTION 20. Section 9279.13 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 6813 of Chapter 8, Article VI of the Arcadia Municipal Code. SECTION 21. Section 9279.14 of Chapter 2, Article IX of the Arcadia Municipal Code is hereby renumbered as Section 6814 of Chapter 8, Article VI of the Arcadia Municipal Code. SECTION 22. Section 6815 is hereby added to Chapter 8, Article VI of the Arcadia Municipal Code to read in its entirety as follows: "6815. PUBLIC NUISANCE. In addition to the penalties set forth in Section 6814 above, any adult business which is operating in violation of these provisions regulating adult businesses is declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation." SECTION 23. Section 6816 is hereby added to Chapter 2, Article IX of the Arcadia Municipal Code to read in its entirety as follows: If any section, subsection, paragraph, sentence, clause, or phrase of this Division and the Ordinance to which it is a part, or any part thereof is held for any reason to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, the remaining sections, subsections, paragraphs, sentences, clauses, and phrases shall not be affected thereby. The City Council hereby declares that it would have adopted this Division and the Ordinance to which it is a part regardless of the fact that one or more sections, subsections, paragraphs, sentences, clauses, or phrases may be determined to be unconstitutional, invalid, or ineffective." SECTION 24. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the official newspaper of said City within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty-first (31 day after its adoption. [SIGNATURES ON NEXT PAGE] -29- Passed, approved and adopted this _ day of 2005. Mayor of the City of Arcadia City Clerk APPROVED AS TO FORM: w (�� 4ev City Attorney 99113