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HomeMy WebLinkAbout2012-08-28; City Council; 20990; Gunther's Retail CUP 12-02AB# 20,990 MTG. 8/28/12 CITY OF CARLSBAD-AGENDA BILL DEPT. DIRECTOR Afgjp DEPT. CED GUNTHER'S RETAIL CUP 12-02 CITY ATTORNEY -^W^ CITY MANAGER RECOMMENDED ACTION: That the City Council hold a public hearing and ADOPT Resolution No2012-202DENYING the appeal and upholding the decision of the Planning Commission to DENY Conditional Use Permit CUP 12-02 based on the findings contained therein. ITEM EXPLANATION: On July 3, 2012 the Planning Commission adopted (4-0; Nygaard and Scully absent; Seikmann abstained) Planning Commission Resolution No. 6891, denying Conditional Use Permit CUP 12-02. The project is a request to convert 965 square feet of an existing building housing an on-line gift store business, located at 2717 Loker Avenue in the Planned Industrial (P-M) zone, to a walk-in retail use which would consist of the sales of assorted gifts (engraved tactical knives, personalized license plates frames, glass vases, jewelry boxes, money clips, jewelry, liquor flasks and zippo lighters) in addition to the transfer, sales and storage of firearms. The current use, Gunther Gifts, an on-line assorted merchandise business, is an allowed use because it is a storage, wholesale, and distribution facility which does not generate any direct retail, general public pedestrian, or automobile traffic to the site. The CUP was recommended for denial by staff and denied by the Planning Commission, as discussed in the attached staff Planning Commission report, because the proposed use is not consistent with: (1) the Planned Industrial (PI) General Plan Land Use designation, (2) the purpose and intent of the Planned Industrial (P-M) Zone and (3) the Carlsbad Airport Center Specific Plan (SP 200(B)). Specifically: • Planned Industrial Implementing Policy (C.9) of the General Plan Land Use Element allows, by Conditional Use Permit, ancillary commercial, office, and recreational uses when clearly onented to support industrial development and their populations (emphasis added). Traditional examples of ancillary commercial uses which clearly support the industrial park and their populations would include office supply retail, office equipment, blueprinting, copy and duplicating services, dry cleaning, delicatessens, and personal grooming services. The proposed retail gift store use is not clearly oriented to support industrial office, manufactunng, and warehousing uses and therefore cannot be found consistent with the Planned Industrial (PI) General Plan land use designation. Historically, there have been no other CUP's approved for similar retail uses which do not clearly support the industrial park within the Planned Industnal land use designation; DEPARTMENT CONTACT: Chris DeCerbo 760-602-4611 chris.decerbo@carlsbadca.gov FOR CITY CLERKS USE ONLY. /yi 5 /-i COUNCIL ACTION: APPROVED • CONTINUED TO DATE SPECIFIC M /O"^" DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER - SEE MINUTES • AMENDED • Agenda Bill Void - See AB 21,022 Page 2 • The intent and purpose of the Planned Industrial Zone is to allow businesses, light industrial and office uses whose primary purpose is not to cater directly to the general public (emphasis added) and certain commercial uses that will cater to and be ancillary to the businesses, light industrial and office uses. The proposed retail gift store does not meet this purpose and intent; and • The project site (Lot 38 of SP 200(B)), is not identified as one of the four lots within the Carlsbad Airport Center Specific Plan identified for the location of certain retail uses which generally support the businesses, light industrial and office uses permitted by the specific plan. These four sites are generally located along Palomar Airport Road and include the existing business center (Staples, etc.) located at the Palomar Airport Road and Loker Avenue West intersection. The project applicant (Greg Gunther) spoke at the Planning Commission hearing and his testimony and the Planning Commissioner's responses are included in the attached Planning Commission minutes. Based upon a review of the facts, including the appeal form filed by the applicant, staff and the Planning Commission recommend that the City Council uphold the decision of the Planning Commission to deny CUP 12-02. FISCAL IMPACT: There are no fiscal impacts to the City other than administrative staff costs associated with the processing of this appeal. ENVIRONMENTAL IMPACT: Pursuant to Section 15270 of the California Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. Othen/vise, the project is exempt from CEQA pursuant to Section 15301, Existing Facilities, ofthe State CEQA Guidelines. A Notice of Exemption will be filed by the City Planner in the event that the City Council votes to overturn the Planning Commission's decision to deny this CUP. EXHIBITS: 1. City Council Resolution No. 2012-202 2. Location Map 3. Planning Commission Resolution No. 6891, dated July 3, 2012 4. Planning Commission Staff Report, dated July 3, 2012 5. Excerpts of Planning Commission Minutes, dated July 3, 2012 6. Applicant Appeal Form and Attachments, dated July 12, 2012. z EXHIBIT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 H 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2012-202 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING AN APPEAL AND UPHOLDING THE DECISION OF THE PLANNING COMMISSION TO DENY THE CONDITIONAL USE PERMIT CUP 12-02 REQUEST TO ALLOW FOR A 965 SQUARE FOOT RETAIL USE WITHIN AN EXISTING BUILDING HOUSING AN ON-LINE GIFT STORE BUSINESS WITHIN THE PLANNED INDUSTRIAL ZONE ON PROPERTY LOCATED AT 2717 LOKER AVENUE WEST, SUITE B, IN LOCAL FACILITIES MANAGEMENT ZONE 5. CASE NAME: GUNTHER'S RETAIL CASE NO.: CUP 12-02 follows: The City Council of tl )ad, California, does hereby resolve as publij WHEREAS, pursuant to the provisions of Commission did, on July 3, 2012, hold a\uly noticed consider Conditional Use Permit^UP 12-O^nd adopt 6891, denylig Con Municipal Code, the Planning heanng as prescribed by law to denial of C ^nditilnal in^^l lannina C^mnission Resolution No. Use PeiViit CUP 12-02^ and e City ^uncil of the City of GJrisbad, oaJh^ day of ili#hearinq 1% c9nsid< Id a duly noticed pS||^i^earing t CUP 12-0 isider an appeal of the aid public h( and argum^ts, if any, oTaFI persons cj^ing to bi City^ouncil considered all factors le^fng, upon hearing and^^sidcuffn >e i^^, the Ci ItojJWI Use Permrt^ • ^ ERE5(K, BE IT HEREBY RE g all testimony ED by the City Council of the City luting to tl^ adoption of a Condjji NOW, THERE5(B^\ BE IT l^pREBY RESC of Cartsba^difollows: ^ Tjji^i^ab^i recitatlns a^true and correct. '2. If Trl^the City Council denies the appeal and upholds the decision of the Planning Corllmiss\i to ofeny Conditional Use Permit CUP 12-02, and that the findings of the Planning CommissiOTi contained in Planning Commission Resolution No. 6891 on file with the City Clerk and incorporated herein by reference, are the findings and conditions of the City Council. /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "NOTICE TO APPLICANT" The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after^hw iflwHlHino^^comes final a request for the record is filed with a deposit in an amlunt sufficier!hto cover the estimated cost or preparation of such record, the timeLvithin which sVch petition may be filed in court is extended to not later tfian the tlVtieth day follol^ing the date on which the record is either personally daivered o\ mailed to rfe party, or his attorney of record, the has one. A writteimrequestlpr the Mifparation of the record of the proceeJngs shall be filed withYhe City \^rk,jdty of Cartsbad, 1200 Carlsbad Village prive, Cfrlsbad, CA. 920ol PASSE|, APP City of Carlsbacfon the AYES NOE ABSENT: ADOPltp at a Regular Meeting of the City Council of the 2012, by the following vote to wit: MATT HALL, Mayor ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) EXHIBIT 2 NOT TO SCALE SITEMAP Gunther's Retail CUP 12-02 5 EXHIBIT 3 1 5 18 19 20 21 22 PLANNING COMMISSION RESOLUTION NO. 6891 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING A 3 CONDITIONAL USE PERMIT TO ALLOW FOR A 965 SQUARE FOOT RETAIL USE WITHIN AN EXISTING 4 OFFICE/WAREHOUSE BUSINESS WITHIN THE PLANNED INDUSTRL\L ZONE ON PROPERTY LOCATED AT 2717 LOKER AVENUE WEST, SUITE B, IN LOCAL FACILITIES 6 MANAGEMENT ZONE 5. CASE NAME: GUNTHER'S RETAIL 7 CASE NO.: CUP 12-02 WHEREAS, Gunther LLC, "Developer/Owner," has filed a verified application with the City of Carlsbad regarding property" described as ("the Property"); and WHEREAS, said verified application constitutes a request for a Conditional Use 8 9 10 „ Lot 2 of Carlsbad Tract No. 03-12 in the City of Carlsbad, ^ ^ County of San Diego, State of California, According to Parcel j2 Map Thereof No. 19517, Filed in the Office of the County Recorder of San Diego County, June 30,2004 13 " 14 15 16 Permit dated July 3,2012, on file in the Planning Division, GUNTHER'S RETAIL - CUP 12- 17 02, as provided by Chapter 21.42 and/or 21.50 of the Carlsbad Municipal Code; and WHEREAS, the Planning Commission did, on July 3, 2012, hold a duly noticed public hearing as prescribed by law to consider said request; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 23 relating to the CUP. 24 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad as follows: 26 A) That the foregoing recitations are true and correct. 27 B) That based on the evidence presented at the public hearing, the Commission 28 DENIES GUNTHER'S RETAIL - CUP 12-02, based on the following findings and subject to the following conditions: ^ Findings; 2 1. That the requested use is necessary or desirable for the development of the community, 3 and is in harmony with the various elements and objectives of the general plan, including, if applicable, the certified local coastal program, specific plan or master plan, in that the 4 proposed retail use is not in harmony with the Land Use Element of the General ^ Plan and that the General Plan Land Use Industrial Implementation Policy C.9 states that the conditional use must be clearly oriented to support industrial 6 development and their populations. As discussed in the staff report in Section A, the project does not comply with this General Plan Land Use Policy and therefore 7 cannot be supported. Furthermore, the proposed retail use is not consistent with Specific Plan 200(B) as discussed in the staff report in Section "B." o 9 2. That the requested use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located in that the proposed retail 10 business does meet or exceed the zoning development regulations, is architecturally compatible with the surrounding industrial buildings, and the site is adequately ^ ^ designed to accommodate the current on-line operations. The project does not meet j2 the intent and purpose of the zone, whose primary purpose is to cater to the industrial populations in the area and not to cater directly to the general public. 13 Only retail commercial uses which will cater and/or be ancillary to the other uses and populations in the zone are allowed. Therefore, the retail use is not consistent 14 in supporting the neighboring industrial zone users and will be detrimental to surrounding industrial office uses and cannot be supported. 16 3. That the site for the proposed conditional use is adequate in size and shape to accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas, 17 landscaping and other development features prescribed in this code and required by the City Planner, planning commission or city council, in order to integrate the use with other uses in the neighborhood, in that the proposed retail use is proposed in an existing 19 building that is adequate in size and shape and meets all development standards and parking regulations. The project cannot be supported due to its public serving 20 nature which does not integrate with the industrial office uses in the neighborhood. 21 4. That the street system serving the proposed use is adequate to properly handle all traffic 22 generated by the proposed use, in that the proposed use will not increase ADT's significantly (approximately 8 ADT increase) and the street system is adequate to 23 handle any traffic generated by the use. 24 5. Pursuant to Section 15270 ofthe Califomia Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. 26 6. The Planning Commission has reviewed each of the exactions imposed on the Developer contained in this resolution, and hereby finds, in this case, that the exactions are imposed 27 to mitigate impacts caused by or reasonably related to the project, and the extent and the degree of the exaction is in rough proportionality to the impact caused by the project. 28 PCRESON0.6891 -2- 18 ^ NOTICE 2 Please take NOTICE that approval of your project includes the "imposition" of fees, dedications, ^ reservations, or other exactions hereafter collectively referred to for convenience as 4 "fees/exactions." 5 You have 90 days from date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 6 66020(a), and file the protest and any other required information with the City Manager for J processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or g annul their imposition. 10 9 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading, or other similar application processing or service fees in connection with this 11 project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has. previously otherwise 12 expired. 13 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning 14 Commission of the City of Carlsbad, Califomia, held on July 3, 2012 by the following vote, to wit: AYES: Chairperson Schumacher, Commissioners Arnold, Black and L'Heureux NOES: ABSENT: Commissioners Nygaard, Scully and Siekmann ABSTAIN: 15 16 17 18 19 20 21 22 ^y^^^,,^^ 23 MICHAEL SCHUMACHER, Chairperson CARLSBAD PLANNING COMMISSION 24 25 26 ATTEST: 27 DONNEU 2g City Planner PCRESON0.6891 -3- EXHIBIT 4 The City of Carlsbad Planning Division A REPORT TO THE PLANNING COMMISSION Item No. Application complete date: March 14, 2012 P.C. AGENDA OF: July 3, 2012 Project Planner: Dan Halverson Project Engineer: Clyde Wickham SUBJECT: I. CUP 12-02 - GUNTHER'S RETAIL - Request for a Conditional Use Permit to allow for a 965 square foot retail use within an existing office/warehouse business within the Planned Industrial zone on property located at 2717 Loker Avenue West, Suite B, in Local Facilities Management Zone 5. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 6891 DENYING Conditional Use Permit CUP 12-02 based on the findings and subject to the conditions contained therein. II. INTRODUCTION The proposal involves the conversion of an existing industrial office space into a retail use within the Plarmed Industrial zone. The use would consist of approximately 10% (965 square feet) of the floor space of an existing on-line gift; store being converted to a retail use which would consist of the sales of assorted gifts in addition to the transfer, sales, and storage of firearms. The use would be subordinate to the on-line sales of gifts which is allowed within the Plaimed Industrial zone. Staff finds that the proposed use is not consistent with the General Plan in that the retail use (the sales of assorted gifts and goods such as personalized license plates frames, glass vases, jewelry boxes, money clips, jewelry, liquor flasks, zippo lighters, and most recently fireamis) is not clearly oriented to support the industrial office developments or their populations and therefore is recommending denial of the Conditional Use Permit, III. PROJECT DESCRIPTION AND BACKGROUND The project site is located at 2717 Loker Avenue West, Suite B, and is one of six buildings in an existing industrial office complex. The building, which fi*onts on Loker Avenue West, is 13,926 square feet in size, of which Gunther Gifts, an existing on-line sales business in operation since 1999, occupies approximately 9,650 square feet of the building. Gunther's space is, currenfly being used as office and warehouse space and is currently selling on-line assorted gifts and goods and more recently firearms. The applicant is now requesting a CUP to allow for a retail use within the existing office/warehouse. The retail use would be 10% of their business area and would consist of the retail sales of gifts including the transfer, sale, and storage of firearms. A letter, received by the City on April 18, 2012 from the applicant, addressing staffs letter of concern, describes the intended retail use and is attached to this report for reference (Attachment 5). 9 CUP 12-02 - GUNTHER'S RETAIL July 3, 2012 PAGE 2 The site and the surrounding area have a General Plan Land Use and Zoning designation of Planned Industrial (PI/P-M). The property is surrounded by industrial office buildings with the exception of a retail center located on the comer of Palomar Airport Road and Loker Avenue West. Vehicular access to the site is provided off of Loker Avenue West. Staff has reviewed the project extensively, and although it is able to meet all design standards, the project is not consistent with the intent of the P-M zone and the policies of the General Plan Land Use Designation of Planned Industrial (PI) as described in the analysis below. IV. ANALYSIS The proposed project is subject to the following plans, ordinances, standards, and policies: A. Planned Industrial (PI) General Plan Land Use designation; B. Carlsbad Airport Business Center Specific Plan - SP 200(B); C. Planned Industrial (P-M) Zone (CMC Chapter 21.34); D. Parking Ordinance (C.M.C. Chapter 21.44); E. . Condifional Use Permit Regulations (CMC Chapter 21.42); and, F. Growth Management Ordinance (CMC Chapter 21.90) and the Zone 5 Local Facilities Management Plan. The recommendation for denial of this project was developed by analyzing the project's consistency with the applicable policies and regulations listed above. The following analysis section discusses the reasoning for the denial with each of these regulations/policies. A. Planned Industrial (PI) General Plan Land Use designation The project site has a Planned Industrial (PI) General Plan Land Use designation. The General Plan Land Use Element states that the PI land use includes those areas currently used for, proposed as, or adjacent to industrial development, including manufacturing, warehousing, storage, research and development, and utility use. The Plarmed Industrial Implementing Policy (C.9) of the General Plan Land Use Element allows, by Conditional Use Permit, ancillary commercial, office, and recreational uses when clearly oriented to support industrial development and their populations. Traditional examples of ancillary commercial uses which clearly support the industrial park and their populations would include office supply retail, office equipment, blueprinting, copy and duplicating services, dry cleaning, deli's, and personal grooming services. Accordingly, the proposed retail gift store use is not clearly oriented to support industrial office, manufacturing, and warehousing uses and therefore cannot be found consistent with the Planned Industrial (PI) General Land Use designation. For historical reference, there have been no CUP's approved within the City for stand-alone retail uses within the PI Land Use designation. B. Carlsbad Airport Business Center Specific Plan - SP 200(B) Specific Plan SP 200 was first adopted in September 1986 and later amended in October 2002 (SP200B). SP 200B includes Plarmed Industrial as both the land use and zoning for all properties within the SP 200B boundaries. Primary uses allowed by right are those listed in Section 21.34.020 (Table A) of the Carlsbad Municipal Code (CVIC). Because support services are /O CUP 12-02 - GUNTHER'S RriTAIL July 3, 2012 PAGE 3 needed in the area, SP 200B identifies Auxiliary Uses as industrial support, business and professional office support, and certain retail uses which are allowed with a CUP. Additionally, SP 200B identified four lots, Lots 1, 15, 23, and 24 (currenfly known as Lots 44- 47, 49, 28, and 29) as being appropriate for the type of mixed support uses because they were located at the primary entrances and within the industrial park. These lots have been developed with industrial office uses and only Lot 44-47 (formerly Lot 1) has been developed with a supporting commercial center, which does include retail uses. The project is located on Lot 38 (formerly Lot 21) and was not identified in the Specific Plan as a desirable lot for pennitting a mix of industrial support uses. Nonetheless, the proposed retail gift store use does not clearly support the industrial park users and therefore cannot be approved. All the development standards of the Specific Plan are the same as those found in the Planned Industrial Section of the CMC. These standards and their consistency will be discussed in Section C below. C. Planned Industrial (P-M) Zone (CMC Chapter 21.34) The site is zoned Plarmed Industrial (P-M) and is therefore subject to the provisions of Chapter 21.34 of the Zoning Ordinance. The intent and purpose of the Planned Industrial Zone is to allow the location of business and light industries engaged primarily in research and development, compatible light manufacturing, business and professional offices when engaged in activities associated with corporate offices or in activities whose primary purpose is not to cater directly to the general public and certain commercial uses that will cater to and be ancillary to the other uses, including industrial-office, which are allowed in the zone by right. The project is proposing to be located in an existing building that meets all development standards of the P-M zone. The current use, Gunther Gifts, an on-line assorted merchandise store, is a listed allowed use because it is storage, wholesale, and distribution facility which does not generate any general public pedestrian or automobile traffic to the site. CMC Section 21.34.020 Table A lists retail uses as allowed with the approval of a Conditional Use Permit approved by Planning Commission. This retail use would need to meet the purpose and intent of the zone for a CUP to be approved (as discussed in Section E below). Although the existing building and the on-line retail use meets the development standards, staff is recommending denial of the CUP due to the projects inconsistency with the purpose and intent of the P-M zone and Industrial General Plan Policy C.9 as described above. D. Parking Ordinance (C.M.C. Chapter 21.44) The allotted parking for the site was based on the assumption that all buildings would consist of a combination of office, manufacturing, and warehouse land uses. The project when approved (CT 03-12/PUD 03-08); was built with 215 parking spaces for the 80,548 square feet of building area divided into six buildings on site. Based on the assumption when built, this building (13,926 square feet) would require 30 parking spaces (5,163 office space = 21 spaces and 8,763 warehouse = 9 spaces). Based on the applicants current uses in the building, and when rounding up of fractional parking spaces, the total number of required parking spaces needed for this project with the City's current standards would be 29 parking spaces. CUP 12-02 - GUNTHER'S RETAIL July 3, 2012 PAGE 4 The applicant's proposal to use 965 square feet of the existing office space as a retail use is consistent with the City's Parking Ordinance. Per Section 21.44.020 of the Carlsbad Municipal Code, office uses are parked at a higher rate, 1 space per 250 square feet, than the individual retail use at 1 space per 300 square feet. Since the applicant has 30 parking spaces and the retail use would require less parking than the current office use, the project is consistent with the City's parking standards. E. Conditional Use Permit Regulations (CMC Chapter 21.42) The purpose of a Conditional Use Permit is to allow special consideration for certain uses to be located in zones other than those in which they are classified as permitted because of their particular characteristics. Retail is a conditionally allowed use within the Plarmed Industrial zone subject to the approval of the Plarming Commission when it does not cater to the general public. This project site is within a planned industrial office complex which is adjacent to Loker Avenue West. There is office, manufacturing, and warehouse uses surrounding the site except for the commercial retail center on the comer of Palomar Airport Road and Loker Avenue West, which is permitted by the Carlsbad Airport Business Center Specific Plan (SP 200(B)). Due to the projects inconsistency with the General Plan, as stated above, the project does not satisfy finding number 1 below and therefore staff carmot recommend support for approval of the CUP. The four findings to approve a CUP are described below: 1. That the requested use is necessary or desirable for the development of the community, and is in harmony with the various elements and objectives of the general plan, including, if applicable, the certified local coastal program, specific plan or master plan. The proposed retail use is not in harmony with the Land Use Element of the General Plan in that the General Plan Land Use Industrial Implementation Policy C.9 states that the conditional use must be clearly oriented to support industrial development and their populations. As discussed in Section "A" above, the project does not comply with this General Plan Land Use Policy and therefore cannot be supported. Furthermore, the proposed retail use is not consistent with Specific Plan 200(B) as discussed in Section "B" above. 2. That the requested use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located. The proposed retail business does meet or exceed the zoning development regulations, is architecturally compatible with the surrounding industrial buildings, and the site is adequately designed to accommodate the current on-line operations. The project does not meet the intent and purpose of the zone, whose primary purpose is to cater to the industrial populations in the area and not to cater directly to the general public. Only retail commercial uses which will cater to and/or be ancillary to the other uses and populations in the zone are allowed. Therefore, the retail use is not consistent in supporting the neighboring industrial zone users and will be detrimental to surrounding industrial office uses and cannot be supported. 3. That the site for the proposed conditional use is adequate in size and shape to accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas, landscaping and other development features prescribed in this code and required by CUP 12-02 - GUNTHER'S RETAIL July 3, 2012 PAGE 5 the City Planner, Planning Commission or City Council, in order to integrate the use with other uses in the neighborhood. The retail use is proposed in an existing building that is adequate in size and shape and meets all development standards and parking regulations. The project cannot be supported due to its public serving nature which does not integrate with the industrial office uses in the neighborhood. 4. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use. The proposed use will not increase ADT's significantly (approximately 8 ADT increase) and the street system is adequate to handle any traffic generated by the use. F. Growth Management Ordinance (CMC Chapter 21.90) and the Zone 5 Local Facilities Management Plan The project is located within Local Facilities Management Zone 5 in the northeast quadrant of the City. The impacts on public facilities created by this project, and its compliance with adopted performance standards, are minimal to no impact. The small ancillary retail use would create approximately 8 additional ADT's but no other impacts to the zone are created. V. ENVIRONMENTAL REVIEW Pursuant to Section 15270 of the Califomia Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. ATTACHMENTS; 1. Planning Commission Resolution No. 6891 2. Location Map 3. Disclosure Statement 4. Background Data Sheet 5. Applicant's letter dated April 17,2012 6. Exhibit A N NOT TO SCALE SITEMAP Gunther's Retail CUP 12-02 STATEMENT planning Division \y CITY OF P- irA\ 1635 Faraday Avenue CARLSBAD ^'^^ www.carisbadca.gov Applicant's statement or disclosure of certain ownership interests on all applications which will require discretionary action on the part of the City Council or any appointed Board, Commission or Committee. The following information MUST be disclosed at the time of application submittal. Your project cannot be reviewed until this Information is completed. Please print. Note: Person is defined as "Any individual, firm, co^partnershipi joint venture^ association, social clubi fraternal organization, corporation, estate, trust, receiver, syndicate, in this and any other county, city and county, city municipality, district or other political subdivision or any other group or combination acting as a unit." ' Agents may sign this document; however, the legal name and entity of the applicant and property owner must be provided below. 1. APPLICANT (Not the applicant's agent) Provide the COMPLETE. LEGAL names and addresses of ALL persons having a financial interest in the application. If the applicant includes a corporation or partnership, include the names, titles, addresses of all individuals owning more than 10% of the shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publiclv-owned corporation, include the names, titles, and addresses of the corporate officers (A separat^a^e^m^yb^.|ttached c^^V.^ &^<i4rs Uc. Person Grr^^ Gt^-Y^G-x^ Corp/Part QS^L Gx^vx^'ejr Title ?res\<fe.vvV' Title OTO Address 'ZM'D Coa-si- fWe- Address '2^vnS' Co^^sAr ftvi^. 2. OWNER (Not the owner's agent) » ^ Provide the COMPLETE. LEGAL names and addresses of ALL persons having any ownership interest in the property involved. Also, provide the nature of the legal ownership (i.e., partnership, tenants in common, non-profit, corporation, etc.). If the ownership includes a corporation or partnership, include the names, titles, addresses of all individuals owning more than 10% ofthe shares. IF NO INDIVIDUALS OWN MORE THAN 10% OF THE SHARES, PLEASE INDICATE NON-APPLICABLE (N/A) IN THE SPACE BELOW. If a publiclv-owned corporation, include the names, titles, and addresses of the corporate officers. (A separate page may be attached if necessary) Person &c&>f^ 6rw^A\.<2/r Corp/Part L.AS<X. CSwcVWer- Title PrgsxA^w::^ Title CJffc> Address TJlyn LoV^er /V/g- tA^sV Address "^Kl L^^r fVN^e-> tO^d" Page 1 of 2 Revised 07/10 15 NON-PROFIT ORGANIZATION OR TRUST If any person identified pursuant to (1) or (2) above is a nonprofit organization or a trust, list the names and addresses of ANY person serving as an officer or director of the non- profit organization or as trustee or beneficiary of the. Non Profit/Trust Non Profit/Trust Title Title Address Address 4. Have you had more than $500 worth of business transacted with any member of City staff. Boards, Commissions, Committees and/or Council within the past twelve (12) months? / I I Yes ~y_ No If yes, please indicate person(s): NOTE: Attach additional sheets if necessary. certify that all the above information is true and correct to the best of my knowledge. Signature of owner/date Signature of applicant/date Print or type name of owner Print or type name of applicant Signature of owner/applicant's agent if applicable/date Print or type name of owner/applicant's agent p-1 (A) Page 2 of 2 Revised 07/10 / IP- BACKGROUND DATA SHEET CASE NO: CUP 12-02 CASE NAME: GUNTHER'S RETAIL APPLICANT: Lisa Gunther REQUEST AND LOCATION: Request for a Conditional Use Permit to allow for a 965 square foot retail use within an existing office/warehouse business within the Planned Industrial zone on property located at 2717 Loker Avenue, Suite B, in Local Facilities Management Zone 5. LEGAL DESCRIPTION: Lot 2 of Carlsbad Tract Map No. 03-12, in the Citv of Carlsbad, County of San Diego, State of Califomia, According to Parcel Map No. 19517, Filed in the office of the County Recorder of San Diego County, June 30, 2004 APN: 209-081-38 Acres: 5.38 Proposed No. of Lots/Units: N/A GENERAL PLAN AND ZONING Existing Land Use Designation: Plarmed Industrial (PI) Proposed Land Use Designation: N/A Density Allowed: N/A Density Proposed: N/A Existing Zone: Planned Industrial (P-M) Proposed Zone: N/A Surrounding Zoning, General Plan and Land Use: Zoning General Plan Current Land Use Site Planned Industrial(P-M) Planned Industrial (PI) Industrial Office/warehouse North Plarmed Industrial(P-M) Planned Industrial (PI) Industrial Office/warehouse South Planned Industrial(P-M) Planned Industrial (PI) Industrial Office/warehouse East Planned Industrial(P-M) Planned Industrial (PI) Industrial Office/warehouse West Planned Industrial(P-M) Planned Industrial (PI) Industrial Office LOCAL COASTAL PROGRAM Coastal Zone: Q Yes |3 No Local Coastal Program Segment: N/A Within Appeal Jurisdiction: O Yes ^ No Coastal Development Permit: Q Yes ^ No Local Coastal Program Amendment: Q Yes ^ No Existing LCP Land Use Designation: N/A Existing LCP Zone: N/A Proposed LCP Land Use Designation: N/A Proposed LCP Zone: N/A Revised 01/06 PUBLIC FACILITIES School District: Carlsbad Water District: Carlsbad Sewer District: Carlsbad Equivalent Dwelling Units (Sewer Capacity): N/A ENVIRONMENTAL IMPACT ASSESSMENT I I Categorical Exemption, I I Negative Declaration, issued I I Certified Environmental Impact Report, dated_ Other, Pursuant to Section 15270 of the Califomia Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. Revised 01/06 FROM.: FAX NO. >. 18 2012 9:48fiM P2 April 17, 2012 Gunther Gifts Inc. 2717 Loker Avenue West Carlsbad, CA 92010 Chris DeCerbo City of Carlsbad, Planning Division 1635 Faraday Avenue Carisbad, CA 92008 Dear iVlr. DeCerbo, RECEIVED APR 1 8 2012 CITY OF CARLSBAD PLANNING DIVISION in response to the letter dated March 14, 2012, from the City of Carlsbad Planning Division, there is an issue of concern noted as "The proposal to conduct what appears to be pnmary retail business for the general public and to "transfer, sell, and store firearms" in the Planned Industrial (p-IVI) zone does not comply with the Intent ofthe P-M zone." We would like to address this concern: 1. Gunther Gifts Inc. has been conduaing business in Carlsbad's P-M zone since 1999. Our primary business is selling engraved tactical knives and assorted retail gifts online and via a printed catalog. Firearm sales would be ancillary to our current knife business. We own the building located at 2717 Loker Avenue West and need to expand our business into retail due to the downturn in the economy at the end of 2008 which forced us to layoff 30% of our workers. We are not a new company seeking to pay low rent for a retail location within the P-M zone. We are an existing Carisbad company that Is looking for additional income streams to support our $15,000 per month current building payment. The retail location would be ancillary to our existing business as well as our new venture into firearms. 2. The City of Carisbad has already granted Gunther Gifts Inc. a business license to transfer, sell and store firearms at our Carisbad warehouse for online sales. This is our main focus (and has been since 1999 with our existing business). Our primary retail business Is online. 3. In 21.34,020, permitted uses are listed in the Table A. Retail Uses are allowed with a CUP-2. "Land Use Element" page 39, Amended September 14, 2010 in C.9 allows for "ancillary commerdal... uses when cleariy oriented to support industrial developments". A small retail area (approximately 10% of our overall space) would be ancillary to our current business which has been in operation since 1999. A CUP-2 would allow us to serve the local business park, the law enforcement community and the new range/training center in Carlsbad. FROM,: FAX NO. : 18 2012 9:48PlM P3 4. A secondary side issue has come up that a CUP-2 is needed from the City of Carisbad to allow a member ofthe PM zone to be able to do the following: a. Purchase a firearm. b. Transfer /sell a firearm. c. Ship a firearm to a manufacturer or service center if repair or warranty is needed. d. Members of the P-M zone should be able to purchase firearms for business, recreation or personal security within the City of Carisbad, namely within the P-M zone. Security is a concern for any business. e. Members of the P-M zone are currently not being served anywhere within the city of Carlsbad In regards to any firearms related issues. Since we are located in the P-M zone and have a Federal Firearms License from the US Department of Justice and approval from the Califomia Department of Justice, we would like to fill the needs of the P-M zone forflrearm related issues. f. Gunther Gifts Inc is not buried within the heart ofthe industrial zone but rather right on the fringe. The retail Staples Center is right across the street Across Palomar Airport Road Is another commercial zone which includes Stater Bros. We are on the edge ofthe P-M zone and practically in the commercial zone as it is. The small ancillary retail space we are seeking is meant to accommodate any incidental walk-ins that may occur and seem to already be presently occurring with other businesses in the P-M zone. 5. For the first time, the Carlsbad Police Department Would be able to purchase firearms and related equipment and accessories within Carlsbad. We are eager to provide support to the local police department. The Gunther family Is "true blue" with police officers in our family for over 85 years. We would be proud to serve the Carisbad Police. 6. California is only second to Texas in the amount of firearms in the state. This translates into many people within the P-M zone that own firearms. There is a need for people to be able to sell, purchase and transfer firearms with Carisbad's P-tvi zone. We would like to fill those needs. 7. As 40 year, long-term residents of North County, we believe that a firearms store i$ better suited to an industrial area than a retail area. This is the case with neighboring cities such as Oceanside and San Marcos as this Issue has already come up. Oceanside has 'Iron Sights" which is both a range and a retail establishment within an industrial zone, San Marcos has ^North County Firearms" which is in an industrial zone and was granted a CUP in 2011 similar to what we are seeking. North County Firearms is located at 120 North Pacific Street #C1, San Marcos, CA 92069. 8. Gunther Gifts Ina is the first corporation granted a Federal Firearms License (FFL) from the Department of Justice within the City of Carlsbad. c>0 Ff^OMi : FfiX NO. : 18 2012 9:49PM P4 9. The state of California has also granted Gunther a "certificate of eligibility" after further background checks and FBI investigation, We have passed all necessary checks and received alt required licenses on the state and federal levels. 10. These Federal and State licenses are meaningless without a CUP-2 from the City of Carisbad. A CUP-2 is essential because any member ofthe P-M zone that purchases a firearm from Gunther Gifts Inc. must appear In person to take possession as per Federal and State law. U. We would condua business differently from a regular gun store. Our primary business focus will still be online, but local people can pick up, sell their merchandise or send It back to factory for service from our store if they choose to. Our approach to local transactions will be by appointment only to offer a customer a different experience than he/she currently receives from established stores. Our focus will be to eliminate wait time at the counter. Our customers will set up an appointment, come in for paperwork and leave. Our intention is not to have people wait for service. It will be at a controlled pace to give the customer a personal, friendly experience that they are not currently receiving at any other store. 12. Allowing Gunther Gifts Inc a small retail area for ancillary use will enable us to hire back laid off employees. 13. Since the firearms business would follow a similar business plan as our existing businesses (which would be primarily online sales), we would expect a similar amount of random walknns. In the case of a firearms store, we would anticipate 1-5 appointments per month from members of the P-M zone. The rest of the sales/activity would be online. 14. Please, give us the opportunity to address any of your concerns in person. We are confident that we can make a compelling case for a CUP-2. Gregg Gunther 32° Lisa J. Gunther President CFO RECEIVED June 24,2012 JUN 2 5 2012 CITY OF CARLSBAD PLANNING DIVISION Dear City Planners: A CUP-2 for Retail in the PM zone is critical to the future success of Gunther Gifts Inc. for the following reasons: 1. Since the end of 2008, we have laid off 30% of our workers. A retail aspect to our business would allow us to rehire. 2. We are seeking additional income to support our $15,000 per month building payment. A CUP-2 is necessary to expand our existing business: 1. Gunther Gifts Inc. sells engraved gift items with an emphasis on knives. 2. 3 websites/businesses are under Gunther Gifts Inc: a. www.SwissKnlvesExpress.cg_m - sells Victorinox and Wenger knives. b. ww^.GuntherGifts.com - sells knives by Buck, Gerber, Victorinox, Wenger, Leatherman, SOG, etc. Although the website also lists wedding related goods, the focus (and most of the volume) since the beginning has been knives. c. www.GuntherWatch.com - a low volume website selling engraved pocket watches. 3. Gunther Guns was formed as a 4*^ business at the end of 2011 with the intention of selling online firearms [just as we had been selling onhne knives] but per Cahfornia Penal Code 26705 the business license must state "Valid for Retail Sales of Firearms." Since Retail is available with a CUP-2, that is why we applied. As soon as this is granted, we can begin onhne sales on a new website www.GuntherGuns.com. Gunther Gifts Inc. meets all findings ofthe City of Carlsbad Planning Division reasons for approving a CUP-2 Retail: 1. Necessary/Desirable. Yes. Knives are tools that are desirable and support the mixed industrial office, manufacturing and warehouse uses already in the zone. The additional and related firearms sales serve the security needs, state and federal paperwork requirements for PM zone members to purchase, liquidate or transfer firearms. This is not detrimental to existing uses. It is desirable as it is not available anywhere in Carlsbad and would be a great convenience to the zone. 2. Adequate Size and Shape. Yes. The existing building and online retail use meets development standards. 3. Necessary Features Provided and Maintained. Yes, all of the yards, setbacks, walls, fences, landscaping and other features necessary to adjust the requested use to existing or permitted future uses in the neighborhood will be provided and maintained. 4. Adequate Street System. Yes. There is sufficient parking to support the 10% proposed retail space and the street system is adequate to handle any traffic generated by the new/additional use. In addition to the critical 4 findings above required by the City Planning Division for allowing the CUP-2, there are the following compelling reasons to grant it as well: 1. A large retail center exists at 2712 Loker Avenue West. Gunther is located at 2717 Loker Avenue West. 2. Gunther's driveway to Staples is 41 feet [curb to curb). 3. An even larger retail center exists nearby [Stater Brothers, Trader Joes, Pet Smart, restaurants, etc) as you continue down Loker Avenue towards Bressi Ranch. 4. Retail is done all over the PM zone already with no permit or enforcement by the City of Carlsbad. 5. Our primary focus is not the general public. It is onhne sales and has been since 1999. 6. Our products are desirable to the PM zone. 7. This 10% small retail area would not be detrimental to existing uses. 8. Retail is specifically hsted as an allowed use in Table A under 21.34.020. 9. Gunther has passed all extensive background checks by the US Department of Justice, the FBI and the State of California. Gunther is the first business to do so in order to qualify and be granted a Federal Firearms License. 10. Per the City of Carlsbad's website the city's goal is "to make doing business easy" and "help businesses prosper". We have been doing business in Carlsbad since 1999 and need the city's help to continue to help ourselves and be prosperous. This helps our family, the families of our workers, members ofthe PM Zone, and the City of Carlsbad. 11. We would be able to support equipment and accessory needs of the Carlsbad Police Department The Gunther family is "true blue" with police officers in our family for over 85 years and it would be an honor to serve the Carlsbad Police. ^3 As you can see, we strongly feel that we meet all critical findings of the City of Carlsbad as well as the aforementioned reasons. We ask that you help a Carlsbad small business by granting our retail permit. Sincerely, Gregg Gunther President, Gunther Gifts Inc. Lisa Gunther CFO, Gunther Gifts Inc. Pi Stapbs Entrance 1 •< t.-f^'^'^fj™* • Gunther Entrance rji i« 4 ^^^^^^^ Hi ! ' i V WV** ' "> ** l^? ^ . ..» "t" * A Gunther's Retail CUP 12-02 EXHIBIT 5 Planning Commission Minutes July 3,2012 Page 7 Chairperson Schumacher closed the public hearing on Agenda Item 3 and asl<ed Mr. Neu to introduce the next Item. 4. CUP 12-02 - GUNTHER'S RETAIL - Request for a Conditional Use Permit to allow for a 965 square foot retail use within an existing office/warehouse business within the Planned Industrial zone on property located at 2717 Loker Avenue West, Suite B, in Local Facilities Management Zone 5. Mr. Neu introduced Agenda Item 4 and stated Principal Planner Chris DeCerbo would make the staff presentation. Commissioner Siekmann stated that because she was a former employee of the applicant, she needed to recuse herself. Chairperson Schumacher opened the public hearing on Agenda Item 4. Mr. DeCerbo gave a brief presentation and stated he would be available to answer any questions. Chairperson Schumacher acknowledged receipt of a letter from the applicant dated June 23 and asked if there were any questions of Staff. Seeing none, he asked if the applicant wished to make a presentation. Greg Gunther gave a brief presentation and stated he would be available to answer any questions. Chairperson Schumacher asked if there were any questions of the applicant. Commissioner Arnold asked how many staff members he has. Mr. Gunther stated 5 employees. Commissioner Black asked about signage for the site. Mr. Gunther stated he has no intention of changing the existing signs. Commissioner Black asked if it would be considered retail or wholesale if a Carlsbad Police Officer were to come in for merchandise. Mr. Gunther stated it would be retail. Chairperson Schumacher asked if there were any further questions of the applicant. Seeing none, Chairperson Schumacher asked if there any were members of the audience who wished to speak on Agenda Item 4. Seeing none, he opened and closed public testimony on the item. DISCUSSION Commissioner Arnold stated that while he can understand the concerns of the small business owner, he cannot support the project. He further stated that the business does not serve the occupants of the business park as required by the General Plan and zoning. Commissioner L'Heureux stated that he has a difficult time trying to apply even two of the findings that are necessary to approve a Conditional Use Permit therefore he has to deny the request. Commissioner Black stated he is concerned with setting precedence with this project. He stated he has to deny the request. Chairperson Schumacher applauded the applicant in their interest in complying with rules. He concurred with Commissioner Black in regards to setting precedence. Chairperson Schumacher commented that ultimately the project is not congruent with the General Plan or the intent of the P-M Zone. ^7 Planning Commission Minutes July 3,2012 Page 8 ACTION: Motion by Commissioner L'Heureux, and duly seconded, that the Planning Commission adopt Planning Commission Resolution No. 6891 denying Conditional Use Permit CUP 12-02 based on the findings and subject to the conditions contained therein. VOTE: 4-0-1 AYES: Chairperson Schumacher, Commissioner Arnold, Commissioner Black, and Commissioner L'Heureux NOES: None ABSENT: Commissioner Nygaard, Commissioner Scully and Commissioner Siekmann ABSTAIN: None Chairperson Schumacher closed the public hearing on Agenda Item 4. RECESS Chairperson Schumacher called for a 5 minute recess at 8:05 p.m. MEETING CALLED TO ORDER Chairperson Schumacher called the meeting to order at 8:10 p.m. with all Commissioners present and asked Mr. Neu to introduce the next item. 5. SDR 12-01 - VISTA LA COSTA APARTMENTS - Request for approval of a Site Development Plan to allow for the development of a 19-unit residential apartment project on a 0.88-acre infill site generally located on the north side of Gibraltar Street, south of the La Costa Golf Course, between Jerez Court and Romeria Street, and in Local Facilities Management Zone 6. Mr. Neu introduced Agenda Item 5 and stated Assistant Planner Greg Fisher would make the staff presentation. Chairperson Schumacher opened the public hearing on Agenda Item 5. Mr. Fisher gave a brief presentation and stated he would be available to answer any questions. Chairperson Schumacher acknowledged receipt of an errata sheet for the project and asked if there were any questions of Staff. Commissioner Siekmann inquired about turning left out of the project onto Gibraltar Street. Mr. Jones stated that it is a residential street so there should not be any issues with traffic turning left onto Gibraltar Street. Commissioner Siekmann asked about the apartment manager for the project. Mr. Fisher stated that pursuant to state law there will be an onsite apartment manager who will be there part-time. Chairperson Schumacher asked if there were any further questions of staff. Seeing none, he asked If the applicant wished to make a presentation. Solomon Ravi gave a brief presentation and stated he would be available to answer any questions. Chairperson Schumacher asked If there were any questions of the applicant. Seeing none, Chairperson Schumacher asked If there any were members of the audience who wished to speak on Agenda Item 5. Seeing none he opened and closed public testimony on the item. DISCUSSION Commissioner Arnold stated he can support the project. Commissioner L'Heureux stated he can support the project. EXHIBIT 6 ^ CITY OF CARLSBAD APPEAL FORM P-27 Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov July 3, 2012 Date of Decision you are appealing: Subject of the Appeal: BE SPECIFIC Examples: if the action is a City Planner's Decision, please sa\| annlications (such as a Coastal Development Permit, Planned Unit Develops +^*uo*K^ro %?mTetcrpleas^^^ list all of them. If you only want to appeal a part of the whole action, please state that here. Please see fee schedule for the current fee. Case name: Gunther's Retail . _ ^ Case No.: CUP 12-02 Planning Commission denial, PC Reso. No 6891 or- oDcnicir ^lr^v*/ HiH thp Hpri«5ion-maker en"'? What about the decision is inconsistent with local laws, plans, frS^PIeas: SaS Muni^^^^^ (CMC) Section 21.54.140(b) for additional infonnation (attached). Please attach additional sheets or exhibits if necessary. Please see attached letter^ . NAME (Print): MAILING ADDRESS: CITY. STATE, ZIP: TELEPHONE: EMAIL ADDRESS: SIGNATURE: DATE: The Loftin Firm LLP 5760 Fleet Street. Suite 110 Carlsbad, CA 92 008 (760) 431-2111 Sloftin@loftinfirm.com p-27 Page 1 of 1 Rev. 05/12 The L O f t I n FIrmtLP Attorneys at Law Via Email fchris.decerho(a^carlsbadca,SOv:'don.neu(a),carlsbadcagov) Personal Delivery & Facsimile (760-602-8559) July 12,2012 DonNeu,AICP City Planner 1635 Faraday Avenue Carlsbad, CA 92008 Re: CUP-02 - Gunther's Retail Notification of Appeal Request for Costs Related to Preparation of Record Your Correspondence dated July 5,2012 Dear Don Neu: This office has been retained by Gunther's Retail to appeal the Planning Commission decision to the City Council and to prepare a Writ if that appeal is unsuccessful. The purpose of this correspondence is to request the preparation of the record of the proceedings and a cost estimate for the preparation ofthe record ofthe proceedmgs. Based upon your correspondence the deadline for requesting the record and paymg the fee is July 23, 2012. Thank you for your attention to this matter. Sincerely, THE LOPTIN FIRM LLP L. Sue Loftin, Esq cc: Client End: Copy of Appeal \ . _ 5760 Fleet Street, Suite 110 • Carlsbad • California • 92008 T: 760.431.2111 • F: 760.431.2003 • www.loftinflrm.com • sloftin@loftinfirm.com Client / File No M:\Gunther Gifts, Inc\450City\Ltr to Neu.7-12-12.docx 00-450 30 The L o f t I n FirmUP Attorneys at Law Via Hand Delivery & U.S. Mail July 12,2012 Planning Division, Development Services City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: APPEAL FORM P-27 CASE NAME: Gunther's Retail CASE NO: CUP 12-02 ^r™ T i ^ ^ni^ SUBJECT: Planning Commission Denial of Request for CUP, July 3, zuiz, Resolution No. PC-6891 Dear Planning Division and related Departments: GENERAL INFORMATION This office has been retained to represent Gunther Gifts Inc., the owner of the property located at 2717 Loker Avenue West, Carlsbad and operator ofthe current sales of engraved tactical knives, assorted retail gifts online and via a printed catalog. Gunther Gifts, Inc. has b^^^i in Carlsbad since 1999 and is struggling to remain in business m Carlsbad^ Due to the downtmi n the economy, Gunther Gifts, Inc., must expand its business with additional merchandise to survive and to retain ownership of the building. The natural expansion item to the general merchandize currently offered by Gunther Gifts, Inc. is firearm sales. CURRENT ZONING AND LICENSES 1 ZONING- The property is zoned P-M zone which permits "ancillary commercial (retail) uses .. .to support industrial developments with a CUP-2. See, ORD. 21.34.020, Table A, Retail; Land Use Element, p. 39, Amended September 14, 2010. 2 CARLSBAD BUSINESS LICENSE TO SELL FIRE ARMS: City of Carlsbad granted Gunther Gifts Inc., a business Hcense to transfer, sell and store firearms at the Loker site for online sales. ^ . _ —- 5760 Fleet Street, Suite 110- Carlsbad • California • 92008 T: 760.431.2111 • F: 760.431.2003 • www.loftinfirm.com • sloftin@loftinfirm.com . ^ M ai^.-^j Client/File No M:\Gunther Gifts\450 City\Appeal to City Council 7-12-12.docx GG-450 3 THE LOFTIN FIRM LLP Carlsbad Planning Commission APPEAL FORM P-27 July 12, 2012 Page 2 of3 3. STATE OF CALIFORNIA "CERTIFICATE OF ELIGIBILITY". The State of Califomia, after extensive background checks and FBI investigation, issued Gunther Gifts, Inc., the Certificate of Eligibility to sell firearms. 4. FEDERAL FIREARMS LICENSE (FFL): Gunther Gifts Inc. is the first corporation granted a FFL in the City of Carlsbad. The reason for the requested CUP-2 is that the State and Federal licenses require a "retail" outlet as part of their licensing requirements to sell to local persons/customers. BASIS FOR APPEAL 1. Finding No. 1: The Appellant contends that the proposed use is in harmony with the Land Use Element of the General Plan and the General Land Use Industrial Implementation Policy C.9 and is consistent with Specific Plan 200(B), all contrary to the asserted finding. 2. Finding No. 2: The Appellant contends that the project does meet the intent and purpose of the zone and is ancillary to the industrial use located at the site; is consistent with supporting the neighboring industrial zone uses; and will not be detrimental to the surrounding industrial uses, all contrary to the asserted finding. 3. Finding No. 3: The Appellant contends that the limited public serving nature ofthe proposal does integrate with the industrial uses in the neighborhood, all contrary to the asserted finding. CONCLUSION To preserve business and employment opportunities within this Industrial neighborhood and in recognition of the other and varies retail and/or public serving uses in this zone, we respectfiilly request the City Council approve this request for a CUP. Sincerely, THE LOFTIN FIRM LLP L. Sue Loftin, Esq. cc: City Council; Client End: Appeal Form P-27; Filing Fee, $1,011.00, dated 7/11/2012, check 003333, Noticing fee, $17.55, check 2728 5760 Fleet Street, Suite 110 • Carlsbad •California • 92008 T: 760.431.2111 • F: 760.431.2003 • www.loftinfirm.com • sloftin@loftinfirm.com M:\Gunther Gifts\450 CityVAppeal to City Council 7-12.I2.docx Client '^^^^^^ 3^ Gunther’s Retail Appeal CUP 12-02 Gunther’s Retail •On-line Gift Store is an allowed use because it does not generate any general public pedestrian or automobile traffic to the site. Gunther’s Retail •July 3, 2012 – Planning Commission denied CUP 12-02. •Proposed Use is not consistent with the General Plan, P-M Zone and Specific Plan 200(B). General Plan Land Use Element •Planned Industrial Implementing Policy (C.9) of the General Plan Land Use Element allows, by Conditional Use Permit, ancillary commercial uses when clearly oriented to support industrial development and their populations. Planned Industrial (P-M) Zone •The purpose and intent of the Planned Industrial Zone - allow the location of business and light industries whose primary purpose is not to cater directly to the general public and certain commercial uses that will cater to and be ancillary to industrial-office uses. Specific Plan 200(B) •The subject property is not consistent with SP 200(B) because it is not identified as one of the four lots within the Carlsbad Airport Specific Plan for the location of support retail uses. Recommendation That the City Council DENY the appeal and uphold the decision of the Planning Commission to DENY Conditional Use Permit CUP 12-02 based on the findings contained therein. Appeal from Denial by PC City Council Hearing August 27, 2012 By: L. Sue Loftin, Esq. The Loftin Firm LLP www.loftinfirm.com 1 GUNTHER GIFT’S 1.Property Owner in the City of Carlsbad: 2717 Loker Avenue 2.Been in business for approximately 18 years in Carlsbad at the Loker address 3.An employer in Carlsbad 4.Online business the operates from the Loker address with storage and shipping of orders from the Loker address 2 THE REQUEST For the City Council to approve the appeal from Planning Commission Resolution 6891 and to approve the CUP. The CUP is to provide the zoning requirement for the State and Federal licenses, which have been issued. The CUP is to add the word “retail” to the permitted uses at the Loker address 3 “RETAIL” – WHAT IT MEANS UNDER THIS REQUEST 1.“Retail” means that for residents of the P-I zone, they have to come into Gunther’s Gifts, fill out the government forms and then return to collect their item. 2.All such activity will done only by appointment (no walk in customers) 3.The primary purpose of Gunther’s Gifts is to sell items online and to store those items for delivery at the Property. The primary purpose of this business is not to cater directly to the general public. (C.M.C. 21.34.010.1) 4 PERMITS/LICENSES ISSUED AT THIS TIME City of Carlsbad. A business license to transfer, sell and store firearms at the Property for online sales.  State of California. A “certificate of eligibility” was issued after the State and the Federal Bureau of Investigations performed all necessary background investigations and checks.  Federal. A Federal Firearms License (“FFL”) was issued by the Department of Justice. This is the first, and only, FFL issued within the City of Carlsbad. 5 PC DENIAL BASED UPON FINDING PROJECT INCONSISTENT WITH “INTENT” OF PLANNED INDUSTRIAL ZONE (GP & SP) ALLOW THE LOCATION OF BUSINESS…WHEN ENGAGED….OR IN ACTIVITIES WHOSE PRIMARY PURPOSE IS NOT TO CATER DIRECTLY TO THE GENERAL PUBLIC,… (C.M.C. 21.34.010 “Intent and Purpose”) The primary business purpose of Gunther’s Gifts is to sell online and deliver the goods. The requested CUP does not change the primary business purpose. 6 ACCESSORY USE The municipal code clearly states what constitutes an “accessory” use: [A]ccessory uses…where related and incidental to a permitted use.” (CMC 21.34.020) Based upon the limited size of the proposed accessory use, the limited ability for the public to access the accessory use, and the ability to comply with State and Federal requirements to increase the product line for the primary business purpose, online sales, 7 STAFF FOCUSED ON ANOTHER ALTERNATIVE PERMISSIVE USE ALLOW THE LOCATION OF…CERTAIN COMMERCIAL USES WHICH CATER TO AND ARE ANCILLARY TO THE USES ALLOWED IN THIS ZONE. (C.M.C. 21.34.010(1)) The factual finding was that the proposed use did not cater to businesses or persons in the zone and was not ancillary to the uses allowed in the zone; and therefore, staff and subsequently, the PC denied the application. Gunther’s Gifts does not agree with the factual finding, but submits that even if it is correct, the requested use is permissible as an accessory use attached to the primary purpose. 8 LOCATION OF GUNTHER’S GIFTS PROVIDES ASSURANCE OF NON- INTERFERENCE WITH OTHER BUSINESSES AND IS CONSISTENT WITH OTHER ACCESSORY USES IN THE AREA. 9 10 COMMUNITY SUPPORT Carlsbad Custom Cabinets, located at 2719 Loker. Support letter dated August 22, 2012 from Tom Rhatigan, President, whose business is located adjacent to 2717 Loker. Torrey Pines Scientific, located at 2713 Loker (same business park). Support letter dated August 22, 2012 from Anthony P. Cassiano, Chairman. 11 The primary business activity is online sales The accessory business activity is a designation as retail for a limited service require by State & Federal statutes that local businesses and persons must fill out the paper work in person. If you have additional questions, please contact Ariel Bedell of The Loftin Firm at 760.431.2111 or abedell@loftinfirm.com 12