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Home My WebLink About2012-10-23; City Council; 21022; GUNTHERS RETAILCITY OF CARLSBAD - AGENDA BILL 21.022 AB# MTG. 10/23/12 DEPT. CED GUNTHER'S RETAIL CUP 12-02 DEPT. DIRECTOR CITY ATTORNEY <^ CITY MANAGER RECOMMENDED ACTION: That the City Council hold a continued public hearing, and A) ADOPT Resolution No. 2012-202 DENYING the appeal and upholding the decision of the Planning Commission to DENY Conditional Use Permit CUP 12-02 based on ttie findir^gs and subject to the conditions contained therein; or B) ADOPT Resolution No. 2012-231 APPROVING the applicant's appeal and overturning the decision of the Planning Commission to DENY Conditional Use Permit CUP 12-02 based on the findings and subject to the conditions contained therein. ITEM EXPLANATION: On July 3, 2012 the Planning Commission adopted (4-0, Nygaard and Scully absent; Siekmann 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 on-line gift store, 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 store, is an allowed use because it is a storage, wholesale, and distribution facility which does not generate any general public pedestrian or automobile traffic to the site. Regarding the transfer, sales and storage of firearms, the applicants have explained that they have been issued a Federal Firearms License (FFL) by the U.S. Department of Justice. However, pursuant to federal law, while a business owner or any other member of the public can today purchase a firearm on- line or over the phone, they cannot physically take possession of it at the Gunther's business without a CUP for retail sales. They would instead be required to take possession of the firearm at another location which has a Federal Firearms License and a retail permit. Therefore, the Gunther's are requesting approval of this CUP to transfer and sell firearms from their existing business. The CUP was recommended for denial by staff and denied by the Planning Commission, as discussed in the attached staff 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 Carisbad Airport Center Specific Plan (SP 200(B)). On August 28, 2012 the City Council heard an applicant appeal (AB #20,990) of this denial and continued this item to October 2, 2012, and directed staff to meet with the applicant and pursue an alternative approach that would allow Gunther's Retail as a strictly limited retail use (an appointment only retail use that would allow the transfer, sales and storage of firearms, and firearm related products, DEPARTMENT CONTACT: Chris DeCerbo 760-602-4611 chris.decerbo@carisbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED is: • • • • CONTINUED TO DATE SPECIFIC )6 CONTINUED TO DATE UNKNOWN • RETURNED TO STAFF • OTHER-SEE MINUTES • Council adopted Resolution No. 2012-202. Page 2 and not other gifts which they currently sell on-line) at their on-line storage, wholesale and distribution facility in the Planned Industrial zone. Staff and the applicant have met and crafted a condition of approval, included below, that accomplishes this objective should the City Council vote to overturn the Planning Commission's decision to deny CUP 12-02. 1. CUP 12-02 is approved subject to the following restrictions: • The only on-site retail sales activity allowed by this CUP is the sales, transfer and storage of firearms, and firearm related products. No on-site retail sales of any other products is permitted. • All on-site retail sales, transfer or storage of firearms and firearm related products shall be conducted on an appointment only basis. • No additional signage regarding the sales, transfer or storage of firearms and firearm related products is allowed on-site. Consistent with this decision staff has included the original resolution denying the appeal and upholding the decision of the Planning Commission to deny CUP 12-02 as well as an alternative City Council Resolution approving CUP 12-02 based on the findings and subject to the conditions contained therein. FISCAL IMPACT: There are no fiscal impacts to the City other than administrative staff costs associated with the processing of this appeal. ENVIRONMENTAL IMPACT: The project is exempt from CEQA pursuant to Section 15301, Existing Facilities, of the State CEQA Guidelines. A Notice of Exemption will be filed by the City Planner upon project approval. EXHIBITS: 1. City Council Resolution No. 2012-202 Denying CUP 12-02 2. Alternative City Council Resolution No. 2012-231 Approving CUP 12-02 3. Location Map 4. Planning Commission Resolution No. 6891, dated July 3, 2012 5. Planning Commission Staff Report, dated July 3, 2012 6. Excerpts of Planning Commission Minutes, dated July 3, 2012 7. Applicant Appeal Form and Attachments, dated July 12, 2012. EXHIBIT 1 1 RESOLUTION NO. 2012-202 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DENYING AN APPEAL AND 3 UPHOLDING THE DECISION OF THE PLANNING COMMISSION TO DENY CONDITIONAL USE PERMIT CUP 12- 4 02 TO ALLOW FOR A 965 SQUARE FOOT RETAIL USE WITHIN AN EXISTING BUILDING HOUSING AN ON-LINE GIFT STORE 5 BUSINESS WITHIN THE PLANNED INDUSTRIAL ZONE ON PROPERTY LOCATED AT 2717 LOKER AVENUE WEST, SUITE 6 B, IN LOCAL FACILITIES MANAGEMENT ZONE 5. CASE NAME: GUNTHER'S RETAIL 7 CASE NO.: CUP 12-02 8 The City Council of the City of Carisbad, California, does hereby resolve as 9 10 11 12 13 14 15 16 17 18 19 20 21 22 and arguments, if any, of all persons desiring to be heard, the City Council considered all factors 22 relating to the appeal of a Conditional Use Permit denial. 24 NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City 25 of Carisbad as follows: 26 1. That the above recitations are true and correct. 27 28 follows: WHEREAS, pursuant to the provisions of the Municipal Code, the Planning Commission did, on July 3, 2012, hold a duly noticed public hearing as prescribed by law to consider Conditional Use Permit CUP 12-02 and adopted Planning Commission Resolution No. 6891, denying Conditional Use Permit CUP 12-02; and WHEREAS, the City Council of the City of Carisbad, on the 28th day of August, 2012, held a duly noticed public hearing to consider an appeal of the denial of Conditional Use Permit CUP 12-02, received a presentation from city staff, took public testimony, and continued the public hearing to October 2, 2012; and WHEREAS, the City Council of the City of Carisbad, on the 2nd day of October, 2012, held a continued duly noticed public hearing to consider an appeal of the denial of Conditional Use Permit CUP 12-02; and WHEREAS, at said public hearing, upon hearing and considering all testimony 3 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 2. That the City Council denies the appeal and upholds the decision of the Planning Commission to deny Conditional Use Permit CUP 12-02, and that the findings of the Planning Commission 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. "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 Carisbad by Carisbad 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 the decision becomes final a request for the record is filed with a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carisbad, CA. 92008." PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carisbad on the 23'^ day of October, 2012, by the following vote to wit: AYES: Council Members Hall, Kulchin and Packard. NOES: Council Members Blackburn and Douglas. ABSENT: None. LORRAfNE M. WOOD, City Clerk (SEAL) 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 follows: EXHIBIT 2 RESOLUTION NO. 2012-231 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN^ APPEAL AND OVERTURNING THE DECISION OF ^HE PLANNING COMMISSION TO DENY CONDITIONAL U^ PERMIT CUP 12- 02 TO ALLOW FOR A 965 SQUARE FOO/RETAIL USE WITHIN AN EXISTING BUILDING HOUSING AI^N-LINE GIFT STORE BUSINESS WITHIN THE PLANNED/NDUSTRIAL ZONE ON PROPERTY LOCATED AT 2717 LOKER AVENUE WEST, SUITE B, IN LOCAL FACILITIES MANAGBWENT ZONE 5. CASE NAME: GUNTHER'S RETAIL CASE NO.: CUP 12-02 ' The City Council of the Cit^jJ^arisbacW California, loes hereby jiesolve as WHEREAS, pursuant to/he provisions of th^lunfcipal Cod^the Planning Commission did, on July 3, 2012, hjfW a duly noticeJS^ublic h^ing as prolcribed by law to consider Conditional Use Permit QJOP 12-02 and adopted Pining Commj^ion Resolution No 6891, denying Conditional Use g%rmit CUP 12-02; and WHEREAS, thj/l City Co/icil of the CityV Carisbad, /i the 28th day of August, 2012, held a duly noticed jftjblic hearing\consider an affceal of jfie denial of Conditional Use Permit CUP 12-02, recd^ed a pre^ntation f^n city stj/took/ublic testimony, and continued the public hearing to jfctober 2, 201 WH^EAS, the City Coulicil of the City of J^risbad, on the 2nd day of October, 2012, held a cofitinued" ^ulygjoticed puol^ hearing t^f consider an appeal of the denial of Conditional U^ Permit CUP 12-02; WHEREAS, at said public hearing^/ipon hearing and considering all testimony and argui/ents, if any, of all persons desiring to fe heard, the City Council considered all factors relating/o the appeal of a Conditional Use PeHmit denial. NOW, THEREFORE, BE IT/EREBY RESOLVED by the City Council of the City of Carisbad as follows: 1 That the above jlcitations are true and correct. 2. That the recommendation of the Planning Commission for the denial of Conditional Use Permit (CUP 12-02) is hereby overturned and that CUP 12-02 is approved subject to the findings and conditions of the City Council contained herein. 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 Findings: 1. That the requested use (appointment only firearmaTretail facility) is necessary or desirable for the development of the community, an^is in harmony with the Planned Industrial (PI) General Plan land use designatiGfi in that the use will provide an appointment only firearms and firearm rented products retail facility for purchasing firearms and firearm related promicts for security purposes in closj proximity to the owners of the businessjii within the surrounding P-M Zoi Furthermore, security firms are a compatrbie land use in the Planned Indusjfial land use designation and are permitted inrthe P-M zone. miy fij fii rated »(isting That the requested use (appointment retail facility) is not detrimental to exi zone in which the proposed use is to ]ie existing surrounding office/Indus been designed to accommodate #1 required adequate traffic circulation, /urthermore the appoi firearm related products retail/acility is proposed to be located wi building suite and only tei\s^t improvehients to the inli^ior are use. related ofbducts jfically permirild in the compatibJe with the oject (PIRr88-02) has te and /rovides for t only Jnrearms and in an existing quired for the That the site for the projfosed conditional use 1%^dequate inifeize and shape to accommodate the yards, ^tbacks, walls, fences, parkirtlh^loading facilities, buffer areas, landscaping and other ddfelopment features prescribed in this coie and required by the planning director, plann^g commi^smjii ui "wt^ouncil, in order w integrate the use with other uses in the neianborhood^ that the a^liointment onw firearms and firearm related products retm\ facilitylvill occupy only 965 square/eet of an existing 9,650 square foot office/mdustrial ^Mte with existingY>nsite l^dscaping as previously approved under Planned Indi^ial Permit (FlP BS-QB) and requires no site alterations or ad/itional Imienitiesi^urthermoDe, the nfoject complies with all of the required de^lopment slandards oHbeJMTZone ap6 the proposed 965 square feet of the 9,^0 square feet tenant space is ad^uate in size and shape to accommodate/the proposed ^appointment only wearms and firearm related products ret^ facility operation^^s shown on Exh^it "A" dated July 3, 2012. That the strdfet system serving the propoeed use is adequate to properiy handle all traffic generated the pcaiaQgeduse in that theproject spte is provided access from Loker Avenue V^st, a Im il IK fl •iiiii ii Un iilful off ff Palomar Airport Road, a primary arterial sireet, which are currently operating alJan acceptable level of service. The originalJproject (PIP 88-02) was previously analyzed for traffic generation and the street Jystem was designed to properly /andle all traffic generated by the officeA^dustrial park. The limited additional average daily trips associated with this proposed appointment only firearm/ and firearm related products retail facil^ can be accommodated by the exist^g street system. ThA the City Planner has determined that tie project belongs to a class of projects that the State Secretary for Resources has fo/nd do not have a significant impact on the environment, and it is therefore catego/cally exempt from the requirement for the preparation of environmental documer/s pursuant to Section 15301 - "Existing Facilities" of the state CEQA Guidelines. In making this determination, the City Planner has found that the exceptions listed in Section 15300.2 of the state CEQA Guidelines do not apply to this project. 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 The City Council has reviewed each of the gjfections imposed on the Developer contained in this resolution, and hereby findsXin this case, that the exactions are imposed to mitigate impacts caused by or re^onably related to the project, and the extent and the degree of the exaction is in roygh proportionality to the impact caused by the project. Conditions: Note: Unless othenA/ise specified herein, all coj^itions shall be satisfied prior/o issuance of a business license and/or building pejmit or building occupancy /ermit, whichever occurs first. 1. If any of the following conditions implemented and maintained o^ implemented and maintained adcord revoke or modify all approvals future building permits; deny,jre issued under the authority of jTpprovals herein property title; institute and^rosecute litigation to conditions or seek damag^for theiviolation. No^sted or a successor in interest,|^ the City ail to occur, or if they are,iby their terms, to be such cdnditions fail to be so the C\lf shall have the right to ted; deny orlfurthaf condition issuance of all ler condif on ^ certificates of occupancy Jted; ecQpa a notice of violation on the mpfT their compliance with said ights are gained by Developer this Conditional Use Permit. Staff is authorized anp directed to make, or re( corrections and modif/ations toQiei^nditional U: to make them interndny consii^tent ancNjn conformi; Development shall/occur substantially las sho^ lire the Developer to make, all Permit documents, as necessary with the final action on the project, on the approved Exhibits. Any proposed developi; approval. lent, different from thif approval, shall require an amendment to this Developer shaufcom regulations in /ffect at with all appftcSnDle projfisions of federal, state, and local laws and time of building permit issuance. If any cond|Pbn for constriJction of any pujplic improvements or facilities, or the payment of any fee/in-lieu thereof, moposed by ttfis approval or imposed by law on this Project are challdnged, this approva^hall be/suspended as provided in Government Code Section 96020. Jf Plpy irh r^*^*'^" JB determined to be invalid, this approval shall be invalid i/iless the City Council determ/ies that the project without the condition complies with al/requirements of law. DevJIoper/Operator shall and doe/hereby agree to indemnify, protect, defend, and hold hai/iless the City of Carisbad, it/ Council members, officers, employees, agents, and rejlresentatives, from and againjlt any and all liabilities, losses, damages, demands, cBims and costs, including cou^ costs and attorney's fees incurred by the City arising, irectly or indirectly, from (a)/Dity's approval and issuance of this Conditional Use Permit, (b) City's approval or Asuance of any permit or action, whether discretionary or nondiscretionary, in conolction with the use contemplated herein, and (c) Developer/Operator's inyallation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. This obligation survives until all legal proceedings have been concluded and continues even if the City's approval is not validated. 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 10. 11 This project shall comply with all conditions and mitigatiQJf measures which are required as part of the Zone 5 Local Facilities Management Plajfand any amendments made to that Plan prior to the issuance of building permits. This approval shall become null and void if a buildj^g permit is not issued for ttjjf project within 24 months from the date of project approve Developer shall pay the citywide Public Facjljfies Fee imposed by City ^ouncil Policy #17, the License Tax on new construction imposed by Carisbad Municipsin Code Section 5.09.030, and CFD #1 special tax (if appyjcable), subject to any crecms authorized by Carlsbad Municipal Code Section 5.09.QwO. Developer shall also oley any applicable Local Facilities Management Plan fee for Zone IT^hir^jant to Chamer 21.90. All such taxes/fees shall be paid at issuance of J^Jildjj;>§f'|!5ermit. Iftlie taxes/Sees are not paid, this approval will not be consistent with thjrG^ftefliL Plan and sliall beSme void. Prior to the issuance of the buildinjf permit, Develd^^r shffill subjPhit to the City a Notice of Restriction executed by the ownef of the real propert^lo be djfveloped. Said notice is to be filed in the office of the C/unty Recorder, subfect toine satisfaction of the City Planner, notifying all interesjfd pacjies and su^essorsJnn interest that the City of Carisbad has issued a Concllcional Us^ermit by City Council Resolution No. on the property. Said Notiy of Restrictioh^all note th^roperty description, location of the file containing complex project details a^yill conditions of approval as well as any conditions or restrictionafspecified for inclusion in Vrd Notice of Restriction. The City Planner has the authdfty to execute and record |n amendment to the notice which modifies or terminate^said n^>tiee-«p^ a showin^f good cause by the Developer or successor in interest CUP 12-02 shall Jfe revi^i^d by the CitylPlannir annually to determine if all conditions of this permit hjRre beenljlet and that ine u^ does not have a substantial negative effect on surrounding propeir^s or th^ubli»nealth, safety and general welfare. If the City Planneryeteritoies that: T^Wn^Xondipnal Use Permit was obtained by fraud or misrepresenljBtion; on^) the use for whiy such approval was granted is not being exercised; /r 3) the Conditional Use Pejpiit is being or recently has been exercised contrary tofany of the tem^ or condition^f approval or the conditions of approval have not beerymet; or 4) the us^for which suph approval was granted has ceased to exist or has beajn suspended for oneSgar or more; or 5) the use is in violation of any statute, ordinairce, law ^i ii^lJiiliiiliuU—LO'J thjr use permitted by the Conditional Use Permit is being/or has been so exercised as/to be detrimental to the public health, safety or welfjfe or so as to constitute a ndlance, the City Planner shall recommend that the Pla/ning Commission hold a puhfTic hearing and after providing the permittee the oj^ortunity to be heard, the Planning Commission may revoke and terminate the )nditional Use Permit in whole ifr in part, reaffirm the Conditional Use Permit, modify le conditions or impose new cojjfcitions. This Conditional Use Permit i# granted for a period of five (5) years from October 2, 2012 through October 1, 201r. This permit may be revoked at any time after a public hearing, if it is found that the use has a substantial detrimental effect on surrounding land uses and the public's fyalth and welfare, or the conditions imposed herein have not been met. This permit may be extended for a reasonable period of time not to exceed five (5) years upon written application of the permittee made no less than 90 days prior to the expiration date. The Planning Commission may not grant such extension, unless it finds that there are no substantial negative effects on surrounding land uses or the 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 public's health and welfare. If a substantial negative ^§ct on surrounding land uses or the public's health and welfare is found, the extension shall be denied or granted with conditions which will eliminate or substantially redu^ such effects. There is no limit to the number of extensions the Planning Commissi<Mfmay grant. 12. CUP 12-02 is approved subject to the following restrictions: • The only on-site retail sales activity aUOwed by this CUP is the sales, transfer and storage of firearms, and firearm i^ated products. No on-site retail sales^f any other products is permitted. • All on-site retail sales, transfer dx storage o^Jug^grms and firearm rqlated products shall be conducted on all appoiptm^nt only B^Nis. • No additional signage regarding the scffes, transfer or stc^age of fireajfns and firearm related products is alldwedjni-siter Code Reminders: The project is subject to all applicabljrprovisiong^Df local ordinances, the following: 13. 14. 15. icluding but not limited to Developer shall pay traffic impact and sewer iml^nct fees based oiySection 18.42 and Section 13.10 of the C])fy of Carlsbad Municipal Coch^respectivelvf The Average Daily Trips (ADT) and floor/rea contained in the staff repornand shov^ on the site plan are for planning purpose/only. Approval of this rsi&iuest sh^not excuseciwTipliance with all Applicable sections of the Zoning Ordinance and all Aher applicable C^^ ordinances un effect at time of building permit issuancef except as omirwise specificalW provided hefein. Premise ider Code Secti( [ification^address( 18.04.3: >) shall be pro/ded consistent with Carisbad Municipal NOTICE TOAPPLICANT'i "he time within which judicial review of this sTecision must be sought is governed by Code ofjCivil Procedure, Section 10^.6, which hasjoeen made applicable in the City of Carlsbad b/carisbadjjynicipal Code ChaWer 1.16. An/petition or other paper seeking review must be filed in the approprl^tte»<CQyrt not latel^han the onnetieth day following the date on which this decj^on becomes final; howefti, il willith ten c^ys after the decision becomes final a requestor the record is filed with a deposit in an arrpunt sufficient to cover the estimated cost or preparation of such record, the time within wtph such petition may be filed in court is extended to not later than the thirtieth day followmg the date on which the record is either per^nally delivered or mailed to the party, or hisrattorney of record, if he has one. A written request for the preparation of the record of the/roceedings shall be filed with the City Clerk, City of Carisbad, 1200 Carlsbad Village Drive, Q&risbad, CA. 92008. 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 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of 2012, by the following vote, to wit: AYES: NOES: ABSENT: MATT HALL, Mayor ATTEST: LORRAINE M. WOOD, City CI (SEAL) EXHIBIT 3 1 SITEMAP NOT TO SCALE Gunther'^ Retail CUP 12-02 \\ EXHIBIT 4 1 5 8 9 10 11 PLANNING COMMISSION RESOLUTION NO. 6891 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNL\, 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 INDUSTRLVL 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 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 ("the Property"); and WHEREAS, said verified application constitutes a request for a Conditional Use 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 18 WHEREAS, the Planning Commission did, on July 3, 2012, hold a duly noticed 19 public hearing as prescribed by law to consider said request; and 20 WHEREAS, at said public hearing, upon hearing and considering all testimony 22 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 25 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 ^ 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 12 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 in supporting the neighboring industrial zone users and will be detrimental to surrounding industrial office uses and cannot be supported. 15 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 of the Califomia Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. 25 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 PCRESONO. 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 fmal approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section ^ 66020(a), and file the protest and any other required information with the City Manager for ^ 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 3 annul their imposition. 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 DOBS 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. ^3 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: 15 16 17 18 19 20 21 26 AYES: Chairperson Schumacher, Commissioners Arnold, Black and L'Heureux NOES: ABSENT: Commissioners Nygaard, Scully and Siekmann ABSTAIN: 23 MICHAEL SCHUMACHER, Chairperson CARLSBAD PLANNING COMMISSION 24 25 ATTEST: 27 DON NEU 2g City Planner PC RESONO. 6891 EXHIBIT 5 The City of Carlsbad Planning Division A REPORT TO THE PLANNING COMMISSION Item No. P.C. AGENDA OF: July 3, 2012 Application complete date: March 14, 2012 Project Planner: Dan Halverson Project Engineer: Clyde Wickham SUBJECT: 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. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolufion 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 Planned 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 Planned 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 firearms) 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 fronts 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 currently 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). 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 Designafion 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. Conditional 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 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 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 Planned 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 (CMC). Because support services are CUP 12-02 - GUNTHER'S RETAIL 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 CtjP. Addifionally, SP 200B identified four lots. Lots 1, 15, 23, and 24 (currently 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 idenfified in the Specific Plan as a desirable lot for permitting 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 Planned 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 assumpfion 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. 1 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 Planned Industrial zone subject to the approval of the Planning 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 corner 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 cannot 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 direcfiy 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 Gunthers Retail CUP 12-02 ^ DISCLOSURE Deve,oorr.ent .-:.r.,r.. ••^w; STATEMENT Planning Division /^AniCDAW P-1(A) 1635 Faraday Avenue CARLSBAD (760)6O2.46XO www.carlsbadca.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: Pervon is defined as "Any individual, flmrn co-partnershipi joint venture, associaHon; sociarclub} 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 cornblrtatlon 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^e^^y^Ijached Ifnecess^^^^ C^^^W «m Uc, Person frneg^ (g^yvN^^e^r- Corp/Part Lk^^ (Sx^-Vkex- Title Pr^^^^^w•V^ Title CTO Address XKl'y COOJ^ five. Address •z^ms' CotfcsV froe. 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 fhe ownership 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 separate page may be attached if necessary) Person &csafK fSwyV^a/r- Corp/Part \^sos. (SwMver- Title Pngs'xAevc^ Title CTo Address 2-nn LoWer /W^ CA^SV Address ^I Vl Uoker prN>e> tOeg^ P-IW Page 1 of 2 Revised 07/10 3. NON-PROFIT ORGANIZATION OR TRUST If any person Identified pursuant to (1) or (2) above Is a nonprofit organization or a tmst. 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/Tru8t_ 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? • Yes 2 No If yes, please Indicate person(s):. NOTE: Attach additional sheets If necessary. I certify that all the above Information is true and con-ect 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 Pc9 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: Planned 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 Planned 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: d Yes ^ No Local Coastal Program Segment: N/A Within Appeal Jurisdiction: \Z} Yes ^ No Coastal Development Permit: Q Yes Local Coastal Program Amendment: Q Yes ^ No 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 =P3 PUBLIC FACILITIES School District: Carlsbad Water District: Carlsbad Sewer District: Carlsbad Equivalent Dwelling Units (Sewer Capacity): N/A ENVIRONMENTAL IMPACT ASSESSMENT n Categorical Exemption, r~l Negative Declaration, issued r~l Certified Environmental Impact Report, dated. Other, Pursuant to Section 15270 of the Califomia Environmental Quality Act (CEQA), CEQA does not apply to proiects which a public agency reiects or disapproves. Revised 01/06 , (Pi RECEIVED June 24.2012 JUN 2 5 2012 CITY OF CARLSBAD Dear City Planners: PLANNING DIVISION 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. .V^AVw,SMssK^^^ - sells Victorlnox and Wenger knives. b. vvww.GuntherGifts.com - sells knives by Buck, Gerber, Victorlnox, 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. v^vw.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 online knives] but per California 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 online sales on a new website www,GuMherGuii^^ Gunther Gifts Inc. meets all findings of the 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, wails, 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 Bressl 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 online 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 listed 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 of the 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, 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. (S- I'-f -f ^ Gunther's Retai CUP 12-02 EXHIBIT 6 Planning Commission Minutes July 3,2012 Page 7 Chairperson Schumacher closed the public hearing on Agenda Item 3 and asked 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. 30 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. SDP 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. 31 The Loftin Firm HP EXHIBIT 7 Attorneys at Law Via Email (chris. decerbo(^.carlsbadca. gov.- don.neu(a).carlsbadca.sov) 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 of the record of the proceedings. Based upon your correspondence the deadline for requesting the record and paying the fee is July 23, 2012. Thank you for your attention to this matter. Sincerely, THE LQFTIN 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.loftinfirm.com • sloftin@Ioftinfirm.com M:\Gunther Gifts, Inc\450 City\Ltr to Neu.7-12-12.docx Client ^ ^jje No 3P .•'""'111 ^ CITY OF CARLSBAD APPEAL FORM P-27 Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov Date of Decision you are appealing: Subject of the Appeal: July 3, 2012 BE SPECIFIC Examples: if the action is a City Planner's Decision, please sa\ applications, (such as a Coastal Development Permit, Planned Unit Developrti Permit, etc) please 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 Reasonfs) for the Appeal: PLEASE NOTE: The appeal shall specificallv state the reason(s) for the Failure to specify a reason mav result In denial of the appeal, and vou will be limited to the appeal grounds stated here when presenting vour appeal. BE SPECIFIC How did the decision-maker enr? What about the decision Is inconsistent with local laws, plans, or policy? Please see Carlsbad Municipal Code (CMC) Section 21.54.140(b) for additional information (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 92008 (760) 431-2111 Sloftin@loftinfirm.com p-27 Page 1 of 1 Rev. 05/12 33 The Loftin Firm UP 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 SUBJECT: Planning Commission Denial of Request for CUP, July 3,2012, Resolution No. PC - 6891 Dear Planning Division and related Departments: GENERAL INFORMATION This office has been retained to represent Gunther Gifts Mc, the owner of the property located at 2717 Loker Avenue West, Carlsbad and operator of the current sales of engraved tactical knives, assorted retail gifts online and via a printed catalog. Gunther Gifts, Inc. has been in business in Carlsbad since 1999 and is struggling to remain in business in Carlsbad. Due to the downturn in 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 mdustrial 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 license 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 • sIoftin@loftinfirm.com 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 of 3 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 of the 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 respectfully request the City Council approve this request for a CUP. Sincerely, THE LOFTM FIRM LL^ 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, $17.55, check 2728 5760 Fleet Street, Suite 110 • Carlsbad • California • 92008 T: 760.431.2111 • F: 760.431.2003-www.loftinfirm.com • sloftin@loftinfirm.com M:\Gunther Gifts\450 CityVAppeal to City Council 7-I2-12.docx Client ^ Fjje^^o 3o 98/28/2812 09:46 7604312083 LOFTIN FIRM • PAGE, 01/10 Dale:. DMrfbirtion: ^ City Clerk Asst. City Clerk Deputy Clerk Book T 1 F I » IW LIP Agenda Item For the members of ihr. CITY COUNCIL ACM DCM ^cA:ilcQi:::;r Date^^Scity ManagerJi5£Z^ Attorneys at Law To: Hon. Mayor Matt Hall and Councilpersons Fax: 760-720-9461 Adrians! Hernandez on behalf of Sue Loftin, Esq. 8/28/2012 Re: cc: , . r^T*.. TTvrr Paces- )0 (including covei" page) CUP-12-02 Gunther's Gift's, INC l age^- ^" v Ron Ball, Esq; Lorraine Woods 760-434-8367 760-720-6917 • Please comment O Please reply • Please recycle • Urgent X. For review • Plea.$c commcru Dear Hon. Mayor Matt Hall and Councilpersons, Planning Commission to Deny Request for CLP m PM Zone. Thank you, Adriana Hernandez (760)431-2111 abemandez@loftinfirm.com • NOTICE- The information contained in or entity to whom it i. addressed. ' J^^^f^ hereby notified that any he employee of agent responsible to dehvcr .t lo '"'""r"^;^^^^^^^^ If you have received ifjrs^x:^?^^ 43^ .2111 » F: 760.431.2003 • wvvw.loftinfirm.com anern 08/28/2012. 09:46 7604312003 LOFTIN FIRM PAGE 02/10 be L « f t i n F i r m HP , ^ Attorneys at Law Via Email & Facsimile August 27,201.2 Honorable Mayor Matt Hall and Councilpersons City of Carlsbaid 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Re: Hearing Date: August 28, 2012 6:00 p.m. Hearing Item: Number 14 ^ ^ r^r™ Hearing Matter: Appeal from Planning Commission to Deny Request for CUP in PM Zone Hearing Reference: CUP-12^2 Gunther's Gift's, INC, PC Resolution # 6891 Request: Approve the Appeal and the CUP Dear Honorable Mayor Matt Hall and Councilpersons: This Firm has been retained by Gunther^s Gift's hic, the "Applicant" under the request for a CUP to add an accessory use related and incidental to its current and permitted use of the property located at 27.17 Loker Avenue. See, Carhbad Ord, 21.34.020 Permitted Uses, Table A. BACKGROUND The Applicant is a coiporation owned and operated by a husband and wife team: Lisa and Gregg Gunther (the "Gunther's''). The Gunthers own the property located at 2717 Loker Av(5me, Carlsbad (the "Property''). Since 1999, the Gunther's have owned and operated their business known as Gunther's Gifts from the Property. The current, permitted and pnmary use of the property is selling engraved tactical knives and assorted retail gifts onlme and via a pnnted catalog The current payment and related costs attributable to the Gunther's Property is approximately $15,000 per month. Upon the advent of the 2008 economic downt^^^ the onhne business significantly lost customers and revenues resulting m layoffs of 30% of their employees, and the business has not recovered at this pomt in time. 5760 Fleet Street, Suite 110 • Carlsbad • California - 92008 T: 760.431.2111 * F: 760.431.2003 • www.loftinfirm.com • 5loftin@loftinfirm,com Clitirn / File Ni.^ OG-450 08/2B/20i2 09:'46 7&04312003 . • . LOFTINFIRM 'PAGE 63/10 THE LOFTIN FIRM LLP Honorable Mayor Matt Hall and Councilpersons City of Carlsbad Au^st27,2012 Page 2 of 6 Tr. f:,Hlitate tlie recovery for the business, Applicant needs to expand its product offering?oSr?hS^^^ selling engraved tactical knives is firearms. CURRENT PERMITS TO FACILITATE K^ANSION OF PRODUCT TYPE TO INCLUDE FIRE ARMS The following permits have been obtained toward enhancing the Applicants product line to supplement and as an accessoi^ product to its current busmess: 1 CitzsfCMsbad. A business license to transfer, sell and store fireaims at the Property for online sales. 2. ^mMCmi^ A "certificate ^'i^'f Jl^" ^'^^^ts'^r^*;^^^ Ihe Federal Bureau of Investigatimis peifoimed all necessary bacfcgrouna mvestigations and checks. , F^.r,l A Federal Firearms License ("FFL") was issued by the Knent of .lusticc. This is the first, and only, FFL issued w.lhm the C.ty of Carlsbad. WHY IS A "RETAIL" DESIGNATION REQUIRED? Both the State and Federal statu.s ^^^^ ^l^^j^^ t^:^^^^^^^' the online product line cannot be expanded. DESCRIPTION OF THE "RETAIL" STORE * ^f'+K* "Bfvtfiii*'-xtore is to be an accessory semce for use the online service to purchase merohandise. "Retail- store wi!) not be a walk-up storeor^ ^nlf0^7^lie ^terw^J customers will be required to set ^ an to <'j^^^^^'^ .J^ Client / PiteNo GCi.45fl 08/28/2012 03:46 7604312003 LOFTINFIRM , PAGE 04/10 THE LOFTIN FIRM LLP Honorable Mayor Matt Hall and Councilpersons City of Carlsbad August 27, 2012 Page 3 of 6 require a CUP. The CUP is being requested because the designation "Retail-^ is required on the zone or other approved planning document by the State and Federal statutes. THE PLANNING COMMISSION DENIED THE APPLICATION FOR THE CUP BASED ON A CONCLUSION THAT THE PROPOSED ACCESSORY USE WAS NOT CONSISTENT WITH THE PLANNED INDUSTRIAL USE WHEREAS APPLICANT CONTENDS TO THE CONTRARY The proposed accessory use, to be incorporated into the existing and primary use of the Property is consistent with the existing use of the Property and merely supplements the existmg use by providing the ability to expand the online business witiiout impacting the suiroundmg businesses The City staff found that the proposed accessory use to the existmg, pnmary use ot the Property was consistent with the following applicable ordinances and requirements for Property in the Planned Industrial (P-M) Zone (C,M..C. Chptr. 21.34) Staff Found the Proposed Accessory Use Was Consistent with the Following: 1 Parking Ordinance (C.M.C. Cbptr. 21.44), the proposed accessory use is consistent with parking standards. StaiT con-ectly concluded that this Property has designated 30 parking spaces and with the addition of the proposed ancillary use would require only 27 parking spaces. Further, die 27 parking space requirement was based on an incoirect conclusion that what is being proposed is a walk-m store whereas 85 described above, the "RctaiP' services would be by appointment only. Therctbre, the staff concluded coirectly that the total number of reqwred parkmg spaces needed for the proposed additional use for the Property is consi-steiit with and exceeds City's current standards. ^ * 2 The site for the proposed accessory use to the existing primary use is consistent with the development features prescribed by code in order to integrate the proposed accessory use into the existing use. Hie site is developed, there are no proposed building changes to the Property, and the developed site is consistent with all required development features. The Street Svstem is adequate to properly handle all of the traffic generated by the proposed use. Staff made this finding without consideration of the limited "Retail" use. Limited "Retail" use means by appointment only. 4 The proposed accessory use would have minimal to no impact on pubhc facilities and therefore would be consistent with the Growth Management Ordinance (CMC 21.90) and the Zone 5 Local Facilities Management Plan. Staff Recommended Denial on the Basis that the Proposed Accessory Use 3- 5760 Fleet Street. Suite 110 - Carlsbad • California * 92008 T 760.431.ttt1 • F: 760.431.2003 • www.loftinfirm.com • 5loflin@loft1nfirm.com Client/Fik5 No CO-450 1 nr-^TK! riPM ' PAGE- 05/10 08/28/2012 09:46 7604312003 , , .LOF > IN --.J-M THE LOFTIN FIRM LLP Honorable Mayor Matt Hall and Councilpersons . Cityof Carlsbad August 27,2012 Page 4 of 6 Was Inconsistent with the General Plan and Specific Plan Tb. Citys web sit. under the section entitled [W] hy do business in Crlsbad [?] clearly commits to assisting businesses prosper: . City staff wor. wim busines.es to provide personalized, prof.sslonel se.ics, which help businesses . cZLd City leaders interested in nurturing exisfing busines.es and .ttracting new businesses that strengthen the city's economy and quality of life . Tailored business development teems help businesses eech step of the «ey about. Tbc intent and pu,.ose <>f ^^^^Z^XS^^^^^ business whose pi im^ry purpose ,s not to ca^ is .^sell .^ems ontoe and to store those directly to the general public. The issue then is what is a» "^ccesso,^" 't:;:^^^^^ industrial nses7 The municipal f^^/'^'^.f^'^J^^^^^^^^^ " (CMC 21.34.020) .re [Ajcce..,>n' 7^i""fj^t<^ir usSt^ited ability for the public ,0 Based vpon the hm-ted size "^^^ P ^''^^^^^^^ «td Federal requirements to access the accessory use, at)d the ability to "^"^P'^ J"^ ^. clearly the proposed increase the product line for the vm^^J'^l ^Xso^^Te s allowed within tbe P-l „se ir,eets the rcquirentents as an "^i^rS the designation oT "Reiair. It is s,r—^^^^^ .3anadditic„aUntentat,dpun=oseo«^^^^^^^ additionally the "^^-^^^J ^^^^^^^ on thLddWona. and OCv450 08/28/2012 •09:46 7604312003 LOFTINFIRM PAGE 06/10 THE LOFTIN FIRM LLP Honorable Mayor Matt Hall and Counellpersons City of Carlsbad August 27, 2012 Page 5 of6 Specific Plan. Tlie conclusion that tlie proposed ancillaj-y use does not catei' to and is not ancillary to die uses allowed in the zone has two parts. Cater to or support industrial uses can, and does mean, sevei-al things within the cited documents: provide a sei-vice to industrial uses or support existing industrial uses. With the by-appointment only retail service, this pi-ovides a service for tlic zone population which would not be available to the zone users, who would have to go outside the City of Carlsbad to obtain these products. Further, tliis Application supports and is ancillary to a use which is allowed in the zone, Gunther Gifts. FACTUAL MATERIALS 1. Other Examnles of Ancillary and/or Accessory Uses in the Zone. There aie other ancillary or accessory uses in the zone, which include customers coming to the property. A map of some, but not all, of such uses is attached as Exhibit "A". 2. 1 Iniane Loca*inTi of the Property, The Property is located at 2717 Loker Avenue which is approximately across the street from the Stables Business Center and is located on the outskirts of the Industrial Zone. See, Exhibit A. Therefore, the proposed accessory use will not impact other businesses in the area. 3 suonort from Adiacent Property Owners, The adjacent property owng-s support this Application: a. Carlsbad Custom Cabinets. Incated at 2719 Loker. Support letiei- dated August 22, 2012 irom Tom Rhatigan, President, whose business is located adjacent to 2717 Loker. Letter attached a.? Exhibit "B", b. Torrev Pines Scientific, located at 2713 Loker Tsame business park)... Support letter dated August 22, 2012 from Anthony P. Cassiapo, Chairman. Letter attached as Exhibit "C". CONCLUSION On behalf of Gunther Gifts, we respectfully request approval of this Application and a finding that the requested accessory use to the primary use is consistent with the gencrail and specific plans The accessory use implements an expansion of the primar^^ allowed use operating for approximately 14 years by the owner of the Property in Carlsbad, and provides an economic benefit to the community by stabilizing the existing business and providmg the potential for additional jobs. Sincerely, THE LOFTIN FIRM LLP - 5760 Fleet Street, Suite 110 * Carlsbad • California • 92008 T; 760.431.2111 • F: 760.431,2003 • www.loftlnfirm.com • sloftin@loftinfirm.com 08/28/2012 08:'46 7634312003 LOFTINFIRM , PAGE 07/10 THE LOFTJN FIRM LLP Honorable Mayor Matt Hall and Councilpersons City of Carlsbad Auguist27, 2012 Page 6 of 6 L. Sue Loftin, Esq. End: Tliree (3) cc: Client J^rraine Woods, City Clerk Ronald R, Ball, City¥momey ' — - - g7«n F^pt Qtreet Suite 110 * Carlsbad • California * 92008 T: 760,431 2111 If 76a431 2003 * sloftin@loftlrTflrm,oonn CJicnl / File No CiG"450 08/28/2812 09:46 7604312003 LOFTIN FIRfv PAGE 08/10 08/28/2012 09:46- 7604312003 LOFTIN. FIRM PAGE- 09/10 FRX HQ. •:)u^, 22 2015 i0:39W1 P2 S/22/20I2 "Deer Carlsbad City Couricil Members: 1 am aware bf Gunther Gifts application for a Conditional Use Permit to allow for a retail use out of 27^7 Loker AvenUG West ^nt) have no ebjectiorts. am located at 2719 fadjacentto 27^7) Loker Avenue West, J urge the Cfty Council to approve their Conditional use Permit in order to allow Gunther to conduct their desired retail use out of their building. Sincerely, Tom Rhatigan Owner/President Carlsbad Custom Cabinets 2713 Loker Avenue West ^ ^ Carlsbad, CA 92010 7G0-918-9870 08/28/2012 09:'46 7604312003 LOFTIN FIRM •PAGE 10/10 FAX HO. •-^UQ. 24 2012 10:091*1 P2 TORREY PINES SCIENTIFIC 2713 Loker Ave W&st Carlsbeid. C-^ 92010 (760) 930-9-400 I o rr ey p ine s scle r»t I f! t.40 m 22 August 2012 Dear Carlsbad City Council Members, Gunther Gffts has an application for a Conditional Use Permit before you. It is for retell use from their fecHlty at 2717 Loker Avenue West We have no objections to this. We, TorTBy Pines Scientific. Inc. are located in the same business park at 2713 Loker Avertue West We urge the City Council to approve their Condltionaf Use Permit in order to allow Gunther Gifts to conduct their desired retail use out of their factlfty. Anthony P. Casslano Chairman Torrey Pines Scientific, Inc. Degrees Better Date: niftfrihiiflAffi^ / Distribution: City Clerk Asst. City C Deputy Cle Book Agenda Item # (^^ For the members of the: CITY COUNCIL \CM DCM CA-^CC 13ate ilU^Citv Manager UA-- GUNTHER GIFTS Appeal from Denial by PC City Council Hearing August 27, 2012 By: L. Sue Loftin, Esq. The Loftin Firm LLP www.loftinfirm.com Laguna Terrace August 7, 2012 GUNTHER GlFrS 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 © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www.loftlnfirm.com 760.431.2111 1 Laguna Terl-acev August,7,2PP 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 Ucenses, which have been issued. The CUP is to add the word "retail" to the permitted uses at the Loker address 1. 2. :Air-WHAT THIS REQUEST "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. 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) © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www. lofti nf irm .com 760.431.2111 2 Laguna Terrace August 7, 2012 PERMITVnCEN 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. PC DENIAL BASED UPON FINDING PROJECT INCONSISTENT WITH "INTENT" OF PLANNED INDUSTRIAL ZONE (GP & SP) ALLOW THE LOCATION OF BUSINESS... WHEN ENGAGED....OR INACTIVITIES 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. © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www.loftinflrm.com 760.431.2111 3 Laguna Terrace August 7, 2012 ACCESSORY USE The municipal code clearly states what constitutes an "accessory" use: [Ajccessory 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 Hne for the primary business purpose, online sales. ALTERNATIVE PERMISSIVE USE ALLOW THE LOCATION OE..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. © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www.loftinfirm.com 760.431.2111 4 Laguna Terrace August 7, 2012 LOCATION OF GUNTHER'S GIFTS PROVIDES ASSURANCE OF NON- INTERFERENCE WITH OTHER BUSINESSES AND IS CONSISTENT WITH OTHER ACCESSORY USES IN THE AREA. : FlMrtw iSiMdn by nekHftno* C<il9i nc ^ Store ri* =iJiei'.U|*li».l.y •j Slapitt © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www.loftinflrm.com 760.431.2111 Laguna Terrace August 7, 2012 COIVIMUNITY SUPPORT Carlsbad Custom Cabinets, located at 271Q 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. ALL APPLICABLE CITY ORDINANCES 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 700.431.2111 or abedell@loftinfirm.com © The Loftin Firm LLP 2012 Do Not Duplicate without Prior Permission www.loftinfirm.com 760.431.2111 6 Donna Heraty From: Sent: To: Subject: Attachments: Donna Heraty on behalf of City Clerk Friday, August 24, 2012 11:19 AM Donna Heraty FW: City Council Hearing, August 28, 2012, Item #14 Letter from Anthony Cassiano.pdf; Letter from Tom Rhatigan.pdf ^ CITV Of CARLSBAD Donna Heraty Deputy City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 www.carlsbadca.gov P: 760-434-2808 F: 760-720-6917 donna.heratvPcarlsbadca.gov Please consider the environment before printing ttiis e-mail From: Sue Loftin [mailto:SLoftin(g)loftlnfirm.coml Sent: Friday, August 24, 2012 11:00 AM To: City Clerk; Council Internet Email Subject: City Council Hearing, August 28, 2012, Item #14 This Firm represents Gunther Gifts which sought a CUP to open a small retail business attached to, and included with, its current on-line business. Gunther Gifts has been a business located in Carlsbad for approximately 14 years and needs this expansion to remain in business due to the economy. The Planning Commission denied the request and this matter is on appeal to the City Council. This Firm will be sending separately a letter outlining the issues in more detail later in the day. Attached are two letters that have been sent to the City Council in support of this application. I wanted to make sure that the letters were included in the record and distributed to the City Council Members before the hearing. Your assistance in this matter will be greatly appreciated. L. Sue Loftin, Esq. THE LOFTIN FIRM LLP 5760 Fleet Street, Suite 110 Carlsbad, California 92008 Tel: 760.431.2111 Fax: 760.431.2003 Email: sloftin@loftinfirm.com THIS E-MAIL MESSAGE AND ITS CONTENTS ARE LEGALLY PRIVILEGED AND CONFIDENTIAL INFORMATION THAT IS INTENDED SOLELY FOR THE USE OF THE ADDRESSEE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS MESSAGE AND ITS CONTENTS IS STRICTLY PROHIBITED, IF YOU HAVE RECEIVED THIS E-MAIL MESSAGE IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY REPLY E-MAIL AT sloftin@loftinfirm.com AND DELETE THE MESSAGE. THANK YOU. Please consider the environment before printing this email. FROM FftX NO. Aug, 24 2012 10:09At1 P2 TORREY PINES SCIENTIFIC 2713 Loke'" Ave West Carlsbad. CA 92010 (760) 930-9^00 torreypjnessclentific.com 22 August 2012 Dear Carlsbad City Council Members, Gunther Gifts has an application for a Conditional Use Permit before you It is for retail^use from their facility al 2717 Loker Avenue West We have m ot!?edions ^L" rfill?J^^fPc?"^*' H ^PP^^^^^^^'r Conditional Use Permit in order to allow Gunther Gifts to conduct their desired retail use out of their facility. Anthony P. Cassiano Chairman Ton-ey Pines Scientific, Inc. Degrees Better FROM FfiX NO. ftag. 22 2012 10:3am P2 8/22/2012 Dear Carlsbad City Council Members: I am aware of Gunther Gifts appiicatfon for a Conditional Use Permit to allow for a retail use out of 2717 Loker Avenue West and have no objections. i am located at 2719 (adjacent to 2717) Loker Avenue West. 1 urge the City Council to approve their Conditional Use Permit in order to allow Gunther to conduct their desired retail use out of their building. Sincerely, Tom Rhatigfln Owner/President Carlsbad Custom Cabinets 27J9 Loker Avenue West ^ <^7^^ ^ Carlsbad, CA 92010 7G0-918-9870 PROOF OF PUBLICATION (2010 & 2011 CCP.) This space is for the County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above-entitled matter. I am the principal clerk of the printer of North County Times Formerly known as the Blade-Citizen and The Times-Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: August 17*^ 2012 Proof of Publication of NQIICE OF PUBLIC HEARING f NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6.00 p.m. on Tuesday, August 28, 2012, to con-sider an appeal of a Planning Commission denial of 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 and more par- ticularly described as: Lot 2 of Carlsbad Tract No. 03-12 in the City of Carlsbad, County of San Diego State of California, According to Parcel Map Thereof No. 19517, Filed in the Office of the County Recorder of San Diego County, June 30, 2004 Whereas, on July 3, 2012 the City of Carlsbad Planning Commission voted 4-0 to deny a Conditional Use Permit for a 965 square foot retail use within an existing office/warehouse business within the Planned Industrial zone on prop- erty located at 2717 Loker Avenue West, Suite B, in Local Facilities Manaoe-ment Zone 5. Those persons wishing to speak on this proposal are pordially invited to attend the public hearing. Copies of the agenda bill will be available on and after August 24, 2012. If you have any questions, please contact Chris DeCerbo in the Planning Division at (760) 602-4611 or chris.decerbo@carisbadca.oov. If you challenge the Conditional Use Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing de- scribee! in this notice or In written correspondence delivered to the City of Carlsbad, Attn: City Clerk's Office, 1200 Carisbad Village Drive, Carisbad, CA 92008, at or prior to the public hearing. CASE FILE: CUP 12-02 CITY OF CARLSBAD CITY COUNCIL CASE NAME: GUNTHER'S RETAIL net 2320680 08/17/2012 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at E dido, California ugust 2012 Jane Allshouse NORTH COUNTY TIMES Legal Advertising NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, August 28, 2012, to consider an appeal of a Planning Commission denial of a Conditional Use Permit to allow for a 965 square foot retail use within an existing office/warehouse business within the Planned Industhal zone on property located at 2717 Loker Avenue West, Suite B, in Local Facilities Management Zone 5 and more particularly described as: Lot 2 of Carlsbad Tract No. 03-12 in the City of Carlsbad, County of San Diego, State of California, According to Parcel Map Thereof No. 19517, Filed in the Office of the County Recorder of San Diego County, June 30, 2004 Whereas, on July 3, 2012 the City of Carlsbad Planning Commission voted 4-0 to deny a Conditional Use Permit 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. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available on and after August 24, 2012. If you have any questions, please contact Chris DeCerbo in the Planning Division at (760) 602-4611 or chris.decerbo@carlsbadca.gov. If you challenge the Conditional Use Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City of Carlsbad, Attn: City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or prior to the public hearing. CASE FILE: CUP 12-02 CASE NAME: GUNTHER'S RETAIL PUBLISH: AUGUST 17, 2012 CITY OF CARLSBAD CITY COUNCIL y^nn > m SITEMAP NOT TO SCALE Gunther's Retail CUP 12-02 AMdAV-Oa-OOB-l. UU03*^iaAe*MMAA CARLSBAD UNIF SCHOOL DIST 6225 EL CAMINO REAL CARLSBAD CA 92011 ap SU9S • SAN MARCOS SCHOOL DISTRICT STE 250 255 PICO AVE SAN MARCOS CA 92069 ENCINITAS SCHOOL DISTRICT 101 RANCHO SANTA FE RD ENCiNITAS CA 92024 SAN DIEGUITO SCHOOL DISTRICT 710 ENCINITAS BLVD ENCINITAS CA 92024 LEUCADIA WASTE WATER DIST TIM JOCHEN 1960 LA COSTA AVE CARLSBAD CA 92009 OLIVENHAIN WATER DISTRICT 1966 OLIVENHAIN RD ENCINITAS CA 92024 CITY OF ENCINITAS 505 S VULCAN AV ENCINITAS CA 92024 CITY OF SAN MARCOS 1 CIVIC CENTER DR SAN MARCOS CA 92069-2949 CITY OF OCEANSIDE 300 NORTH COAST HWY OCEANSIDE CA 92054 CITY OF VISTA 200 CIVIC CENTER DR VISTA CA 92084 STATE OF CALIFORNIA DEPT OF FISH AND GAME 3883 RUFFIN ROAD SAN DIEGO CA 92123 VALLECITOS WATER DISTRICT 201 VALLECITOS DE ORO SAN MARCOS CA 92069 REGIONAL WATER QUALITY STE 100 9174 SKY PARK CT SAN DIEGO CA 92123-4340 I.PU.A. SCHOOL OF PUBLIC ADMIN AND URBAN STUDIES SAN DIEGO STATE UNIVERSITY SAN DIEGO CA 92182-4505 SD COUNTY PLANNING STEB 5201 RUFFIN RD SAN DIEGO CA 92123 SAN DIEGO LAFCO STE 200 9335 HAZARD WAY SAN DIEGO CA 92123 AIR POLLUTION CONTROL DISTRICT 10124 OLD GROVE RD SAN DIEGO CA 92131 SANDAG STE 800 401 B STREET SAN DIEGO CA 92101 U.S. FISH & WILDLIFE 6010 HIDDEN VALLEY RD CARLSBAD CA 92011 CA COASTAL COMMISSION ATTN TON I ROSS STE 103 7575 METROPOLITAN DR SAN DIEGO CA 92108-4402 AIRPORT LAND USE COMMISSION SAN DIEGO COUNTY AIRPORT AUTHORITY PO BOX 82776 SAN DIEGO CA 92138-2776 CARLSBAD CHAMBER OF COMMERCE 5934 PRIESTLEY DR CARLSBAD CA 92008 CITY OF CARLSBAD PUBLIC WORKS/ENGINEERING DEPT- PROJECT ENGINEER CITY OF CARLSBAD PROJECT PLANNER MICHAEL MCSWEENEY - BIASD STE 110 9201 SPECTRUM CENTER BLVD SAN DIEGO CA 92123-1407 ®09is ®AU3AV I wia6p3 dn-dod asodxa I O) 3U!| Buo|e puag pasy Keei«^A*gB?i^OD-008-l Pse Avery® iSBoajiUiA&A/Sfl^ LOKER REALTY LLC 4 ALDGATE DR W MANHASSET NY 11030 Ja|9^d alorili'Bu-e e 2S>tpiO|^ Pop-ujf COUNTY OF SAN DIEGO 1600 PACIFIC.HIGHWAY SAN DIEGO CA 92101 )d e S3|pe^ sausnbi).: KAISER ELECTRO-OPTICS 400 COLLINS RD NE CEDAR RAPIDS lA 52498 INC CARLSBAD OAKS NO 1 L P 1000 PIONEER WAY EL CAJON CA 92020 REALTY ASSOCIATES FUND VIII LP 1301 DOVE ST UNIT 860 NEWPORT BEACH CA 92660 CARLSBAD OAl<§J^ 1000 Pigj^J^EltWAY EL CAdt^N CA 92020 rCp GATEWAY COLORADO PROPERTIES INC P O BOX 4900 SCOTTSDALE AZ 85261 FENTON H G COMPANY 7577 MISSION VALLEY RD UNIT 200 SAN DIEGO CA 92108 CALIFORNIA BUTCHERS PENSION TRUST FUND 2777 LOKER AVE W CARLSBAD CA 92010 FRANZ-ATRIUM II L P 2710 LOKER AVE W UNIT 100 CARLSBAD CA 92010 CBLLLC 6183 PASEO DEL NORTE UNIT 280 CARLSBAD CA 92011 RAM BUILDING OWNERS LLC 55 INDEPENDENCE CIR UNIT 201 CHICO CA 95973 LOKER RIDGE LLC 2742 LOKER AVE W CARLSBAD CA 92010 BLUE HAT LLC 6965 EL CAMINO REAL UNIT 105 CARLSBAD CA 92009 PACIFIC STARR ESSEX- CARLSBAD LLC 650 SIERRA MADRE VILLA AVE UNIT 100 PASADENA CA 91107 GUNTHER LLC 2717 LOKER AVE W CARLSBAD CA 92010 THOMAS & KATHLEEN RHATIGAN 1074 BEACON BAY RD CARLSBAD CA 92011 JAABALLC 2780 LOKER AVE W CARLSBAD CA 92010 ADAM & MOIRA E DEWAR 2719 LOKER AVE W UNIT B CARLSBAD CA 92010 CJ3 L L C 15843 PAUMA VALLEY DR PAUMA VALLEY CA 92061 PETER A BASILE 1520 GLORIETTA BLVD CORONADO CA 92118 TPS HOLDINGS LLC 1780 LA COSTA MEADOWS DR UNIT 101 SAN MARCOS CA 92078 S F T CARLSBAD LLC 6519 E BARZLN PARADISE VALLEY AZ 85253 KINGS BAY INTERNATIONAL INVESTMENTS 2774 LOKER AVE W CARLSBAD CA 92010 EPQUEUELLC 2772 LOKER AVE W CARLSBAD CA 92010 FREDERICK S BROWN 2770 LOKER AVE W CARLSBAD CA 92010 2768 LOKER LLC 2761 SATURN ST UNIT F BREA CA 92821 GLOBAL OPPORTUNITIES REALTY INC 2776 LOKER AVE W CARLSBAD CA 92010 2778 LOKER LLC 1454 LAUREN CT ENCINITAS CA 92024 LEE REVOCABLE TRUST 7337 MELODIATER CARLSBAD CA 92011 ftiquettes faciles a oelei II dr>-dod aSoflfez a JUufibMUBdrfirpdaiij lcKa;MH^"*"«PVI?elerli POD-flb' MC ! 1-800-GO5|^i)eii;v;hia3d Ase? f asy Peel®A3aiW!te-O9-008-l Use Avery® CEBl>0(AlAft««M^ LOT 23 BRESSI RANCH LLC 221 15TH ST DEL MAR CA 92014 SD County Dept. of Planning Suite B 5201 Ruffin Rd. San Diego, CA 92123 i owdb-dod PWP^ jaia/BBnd PALOMAR AIRPORT ROAD LLC 50 S 10TH ST UNIT 300 MINNEAPOLIS MN 55403 A notice has been mniied to all properly owners/occiipants listed he-rein. Signature: jjr~ Peter Drinkwater Director of Aii-ports Dept. of Public Works-Airport Division County of San Diego 1960 Joe Crosson Dr. El Cajon, CA 92020-1236 ri3 f jHx^QJ dn-dod m$K&z a \mh»tlm^4fSifm\ NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, August 28, 2012, to consider an appeal of a Planning Commission denial of a Conditional Use Pemiit 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 and more particulariy described as: Lot 2 of Carisbad Tract No. 03-12 in the City of Carisbad, County of San Diego, State of Califomia, According to Parcel Map Thereof No. 19517, Filed in the Office of the County Recorder of San Diego County, June 30, 2004 Whereas, on July 3, 2012 the City of Carisbad Planning Commission voted 4-0 to deny a Conditional Use Permit 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. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available on and after August 24, 2012. If you have any questions, please contact Chris DeCerbo in the Planning Division at (760) 602-4611 or chris.decerbo@carisbadca.gov. If you challenge the Conditional Use Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City of Carisbad, Attn: City Clerk's Office, 1200 Carisbad Village Drive, Carisbad, CA 92008, at or prior to the public hearing. CASE FILE: CUP 12-02 CASE NAME: GUNTHER'S RETAIL PUBLISH: AUGUST 17. 2012 CITY OF CARLSBAD CITY COUNCIL Donna Heraty From: Leticia Trevino-Reyes Sent: Monday, August 06, 2012 3:37 PM To: City Clerk Dept Subject: Public Notice - CUP 12-02 - Gunther's Retail Attachments: CUP1202.cd.docx; CUP 12-02_Location.pdf Hello, Please find attached a notice for CUP 12-02 - Gunther's Retail. It's scheduled to go to City Council on 08/28/12. I'm forwarding the AB to the City Manager's office now. Thank you, Leticia © ^ C 1 T ¥ OF CARLSBAD Commnrr-ty k liOtn''K rJt^vP!oprr>f-iif Leticia Trevifio Reyes Senior Office Specialist P: (760) 602-2723 F: (760) 602-8560 Leticia.Trevino(5)carlsbadca.gov NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council of the City of Carisbad will hold a public hearing at the Council Chambers, 1200 Carisbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, HHHH, to consider an appeal of a Planning Commission denial of 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 and more particulariy described as: Lot 2 of Carisbad Tract No. 03-12 in the City of Carisbad, County of San Diego, State of California, According to Parcel Map Thereof No. 19517, Filed in the Office of the County Recorder of San Diego County, June 30, 2004 Whereas, on July 3, 2012 the City of Carisbad Planning Commission voted 4-0 to deny a Conditional Use Permit 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. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available on and after ||||||||||||||||||^ 1^^^^ questions, please contact Chris DeCerbo in the Planning Division at (760) 602-4611 or chris.decerbo@carisbadca.gov. If you challenge the Conditional Use Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City of Carisbad, Attn: City Clerk's Office, 1200 Carisbad Village Drive, Carisbad, CA 92008, at or prior to the public hearing. CASE FILE: CUP 12-02 CASE NAME: GUNTHER'S RETAIL PUBLISH: CITY OF CARLSBAD CITY COUNCIL /giLLJ n 0 m "^L PALOWAR AIRPORT RD S/THE M4P WOT TO SCALE Gunther's Retail CUP 12-02 I V APPEAL FORM P-27 CARLSBAD Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov Date of Decision you are appealing: July 3, 2 012 Subject of the Appeal: BE SPECIFIC Examples: if the action is a City Planner's Decision, please sa^ so. 1^ applications, (such as a Coastal Development Permit, Planned Unit Development Permit, etc) please 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 68 91 Reason(s) for the Appeal: PLEASE NOTE: The appeal shall specificallv state the reason(s) for the appeal. Failure to specify a reason mav result in denial of the appeal, and vou will be limited to the grounds stated here when presenting vour appeal. BE SPECIFIC How did the decision-maker err? What about the decision is inconsistent with local laws, plans, or policy? Please see Carisbad Municipal Code (CMC) Section 21.54.140(b) for additional information (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 92008 (760) 431-2111 Sloftin@loftinfirm.com 07-12-2012 p-27 Page 1 of 1 Rev. 05/12 The Loftin F i r m LLI 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 SUBJECT: Planning Commission Denial of Request for CUP, July 3,2012, 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 of the current sales of engraved tactical knives, assorted retail gifts online and via a printed catalog. Gunther Gifts, Inc. has been in business in Carlsbad since 1999 and is struggling to remain in business in Carlsbad. Due to the downturn in 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 license 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 • sIoftin@loftinfirm.com M:\Gunther Gifts\450 CityVAppeal to City Council 7-12-12.docx Client / File No GG-450 THE LOFTIN FIRM LLP Carlsbad Planning Commission APPEAL FORM P-27 July 12, 2012 Page 2 of 3 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 of the 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 respectfully 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@Ioftinfirm.com M:\Gunther Gifts\450 City\Appeal to City Council 7-12-12.docx Client / File No GG-450 The Loftin Firm LLP Attorneys at Law Via Email (chris. decerbo(a),carlsbadca. sov; don. neu(a),carlsbadca. sov) Personal Delivery & Facsimile (760-602-8559) July 12,2012 Don Neu, 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 of the record of the proceedings. Based upon your correspondence the deadline for requesting the record and paying 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.Ioftinfirm.com • sloftin@Ioftinfirm.com M:\Gunther Gifts, Inc\450 City\Ltr to Neu.7-12-12.docx Client / File No GG-450 I- Kun t-H^ NU. Jul. i)d cikiid. r-iiirn Qity of Carlsbad Office of tho Oily OlerK APPEAL FORM I (We) appeal the decision of the Loftin on behalf of Gunther's Retail To the Carlsbad City Council. Date of Decision you are appealing: July 3, 2012 Subject of Appeal: BE SPECIFIC Examples: if the action is a City Engineer's Decision, please say so. If a project has multiple elements, (such as a General Plan Amendment, Negative Declaration, Specific Plan, etc.) please list them all. If you only want to appeal a part of the whole action, please state that here. Case name; Gunther's Retail Case No.: CUP 12-02 Planning Commission denial, PC Reso. No 6891 " Reason(s) for Appeal: * Please Note • Failure to specify a reason may result in denial of the appeal, and you will be limited to the grounds stated here when presenting your appeal. BE SPECIFIC How did the decision maker err? What about the decision is inconsistent with state or local laws, plans, or policy? Please see attached Appeal Form P-27 r SIGNATD^E NAME (please print) DATE PHONE NO. ^ ADDRESS: Street Name & Number City, State, Zip Code 1200 Carlsbad Village Drive • Carlsbad, Califomia 92008-1989 • (760) 434-2808 CITY OF CARLSBAD 1635 FARADAY AVENUE CARLSBAD, CALIFORNIA 92008 Cashier: (760) 602-2401 Water Utility Billing: (760) 602-2420 REC'D FROM s^ ^U. ^^g>^A^ DATE 7-/3-/2, ACCOUNT NO. DESCRIPTION AMOUNT 4^ ^/7^ /^^)CUK.€J -pi Printed on recycled paper. NOT VALID UNLE^SV^LIDATED BY CASH REiQISTER TOTAL n imerica Jarlsbad Main UHice 2560 El Camino Real Carlsbad CA 760 ii'DDSVEaii' i: I s aoDOEE. n: lousao'Tooaon' REC'D FROM CITY OF CARLSBAD 1635 FARADAY AVENUE CARLSBAD, CALIFORNIA 92008 Cashier: (760) 602-2401 Water Utility Billing: (760) 602-2420 DATE 7-/3-/ oj ACCOUNT NO. nol- V^/^ DESCRIPTION AMOUNT /NOT VALID UNLESSC4L}DATED BY TOTAL @ Printed on recycled paper. CASH REGISTER ijj^^ttekiilliiiiiiillalilhili^ .f , . i... . i....' ! 'i ' ...M ..ii>* 1 n,i, mTg»aiT3ariL.t.;.».u.ikd!i.iibJ.i:iii:MiiJU^ PAY TO THE ORDER OF Swiss Knives Express 2717 Loker Avenue West, Suite B Carlsbad, CA 92008 760-476-3423 CITY OF CARLSBAD Bank of America 601. S. Rancho Santa Fe F^uppi, San Marcos. CA 92069-39dg''^^'^ * 760-471-3173 16-66/1220 7/11/2012 003333 3333 1,011.00 ** One thousand eleven 00/100 CITY OF CARLSBAD CITY OF CARLSBAD P.O. Box 9009 CARLSBAD,CA 92018 DOLLARS MEMO 3 3 3 311' i: 12 iooD 3 5fli: i i 3aao 31 ? 3ii- Gunther’s Retail Appeal CUP 12-02 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. Gunther’s Retail •August 28, 2012 - City Council appeal hearing. •Propose an alternative recommendation that would allow Gunther’s Retail as a strictly limited retail use. Gunther’s Retail •The only on-site retail sales activity allowed is the sales, transfer and storage of firearms and firearms related products. •All on-site retail sales, transfer or storage of firearms and firearms related products shall be conducted on an appointment only basis. Gunther’s Retail •No additional signage regarding the sales, transfer or storage of firearms and firearms related products is allowed on-site. Recommendation ADOPT Resolution No. _____ APPROVING the applicant’s appeal and overturning the decision of the Planning Commission to DENY CUP 12-02 based on the findings and subject to the conditions contained therein. Recommendation That the City Council ADOPT Resolution No. 2012-202 DENYING the appeal and upholding the decision of the Planning Commission to DENY CUP 12-02 based on the findings contained therein.