HomeMy WebLinkAboutAG RPTS 2011 0524 PC REG IMIPTFat as
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Resolution No. 2011-564
PLANNING COMMISSION
REGULAR MEETING AGENDA
MAY 24, 2011
7:00 P.M.
Moorpark Community Center 799 Moorpark Avenue
1. CALL TO ORDER:
2. PLEDGE OF ALLEGIANCE:
3. ROLL CALL:
4. PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS:
5. PUBLIC COMMENT:
6. REORDERING OF, AND ADDITIONS TO, THE AGENDA:
All writings and documents provided to the majority of the Commission regarding all agenda items are
available for public inspection at the City Hall public counter located at 799 Moorpark Avenue during regular
business hours. The agenda packet for all regular Commission meetings is also available on the City's
website at www.ci.moorpark.ca.us.
Any member of the public may address the Commission during the Public Comments portion of the Agenda,
unless it is a Public Hearing or a Discussion item. Speakers who wish to address the Commission
concerning a Public Hearing or Discussion item must do so during the Public Hearing or Discussion portion
of the Agenda for that item. Speaker cards must be received by the Secretary for Public Comment prior to
the beginning of the Public Comments portion of the meeting; for a Discussion item, prior to the Chair's call
for speaker cards for each Discussion agenda item; and for a Public Hearing item, prior to the opening of
each Public Hearing, or beginning of public testimony for a continued hearing. A limitation of three minutes
shall be imposed upon each Public Comment and Discussion item speaker. A limitation of three to five
minutes shall be imposed upon each Public Hearing item speaker. Written Statement Cards may be
submitted in lieu of speaking orally for open Public Hearings and Discussion items. Any questions
concerning any agenda item may be directed to the Community Development/Planning office at 517.6233.
Regular Planning Commission Meeting Agenda
May 24, 2011
Page 2
7. ANNOUNCEMENTS, FUTURE AGENDA ITEMS AND REPORTS ON
MEETINGS/CONFERENCES ATTENDED BY THE COMMISSION:
A. Future Agenda Items
i. CUP 2003-05 National Ready Mixed (Continued from August 26,
2009 to a date uncertain)
ii. CUP 2010-03 Wireless Facility
iii. Housing Element Update
iv. ZOA 2010-03 Emergency Shelters, etc.
8. PUBLIC HEARINGS: (next Resolution No. PC-2011-564)
A. Consider Resolution Recommending Approval of General Plan
Amendment No. 2011-01, Zone Change No. 2011-01, and Termination of
Development Agreement No. 1998-05 with Southern California Edison
(SCE) on 8.79 Acres Located on the North Side of the Union Pacific
Railroad Right-of-Way, West of Gabbed Road. (Continued from April
26, 2011 Regular Meeting) Staff Recommendation: 1) Open the public
hearing, accept public testimony and close the public hearing; 2) Adopt
Resolution No. PC-2011- recommending to the City Council approval
of General Plan Amendment No. 2011-01, Zone Change No. 2011-01,
and Termination of Development Agreement No. 1998-05. (Staff: Joseph
Fiss)
B. Consider a Resolution Approving Conditional Use Permit No. 2011-02, a
Conditional Use Permit to Allow the Retail Sale of Beer, Wine, and
Distilled Spirits for Off-Site Consumption from an Existing Retail
Establishment at 800 Los Angeles Avenue on the Application of Beth
Aboulafia for Target Corporation. Staff Recommendation: 1) Open the
public hearing, accept public testimony and close the public hearing; 2)
Adopt Resolution No. PC-2011- , approving Conditional Use Permit
No. 2011-02, subject to conditions. (Staff: Joseph Fiss)
9. DISCUSSION ITEMS:
S\Community Development\PLANNING COMMISSIONWGENDA\2011\11 0524 Regular Meeting Agentla.doc
Regular Planning Commission Meeting Agenda
May 24, 2011
Page 3
10. CONSENT CALENDAR:
A. Consider Approval of the Special Meeting Minutes of May 3, 2011. Staff
Recommendation: Approve the minutes.
11. ADJOURNMENT:
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this
meeting, including auxiliary aids or services, please contact the Community Development Department at
(805) 517-6233. Upon request, the agenda can be made available in appropriate alternative formats to
persons with a disability.Any request for disability-related modification or accommodation should be made
at least 48 hours prior to the scheduled meeting to assist the City staff in assuring reasonable arrangements
can be made to provide accessibility to the meeting(28 CFR 35.102-35.104;ADA Title II).
S'.\Community Development\PLANNING COMMISSIONWGENDA\2011\11 0524 Regular Meeting Agenda.doc
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss
CITY OF MOORPARK )
AFFIDAVIT OF POSTING
AGENDA
I, Joyce R. Figueroa, declare as follows:
That I am the Administrative Assistant of the City of Moorpark and that an agenda of the
Regular Meeting of the Moorpark Planning Commission to be held on Tuesday, May 24,
2011, at 7:00 p.m. in the Council Chambers of the Moorpark Community Center, 799
Moorpark Avenue, Moorpark, California, was posted on May 20, 2011, at a conspicuous
place at the Moorpark Community Center, 799 Moorpark Avenue, Moorpark, California.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 20, 2011.
, l W LM ()A_
JOrcer R. Figueroa,Administrative Assistant
ITEM: 8.A.
MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission "2
FROM: David A. Bobardt, Community Development erector /
Prepared by Joseph Fiss, Principal Planner 11Y"
DATE: May 20, 2011 (PC Meeting of 5/24/11)
SUBJECT: Consider Resolution Recommending Approval of General Plan
Amendment No. 2011-01, Zone Change No. 2011-01, and Termination
of Development Agreement No. 1998-05 with Southern California
Edison (SCE) on 8.79 Acres Located on the North Side of the Union
Pacific Railroad Right-of-Way, West of Gabbert Road (Continued
from April 26, 2011)
BACKGROUND
This item was originally scheduled for the regular Planning Commission meeting of April
26, 2011. That meeting was adjourned to Tuesday, May 24, 2011 without holding the
public hearing. The attached Planning Commission agenda report addresses the
proposal in detail.
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close the public hearing.
2. Adopt Resolution No. PC-2011- recommending to the City Council approval
of General Plan Amendment No. 2011-01, Zone Change No. 2011-01, and
Termination of Development Agreement No. 1998-05.
ATTACHMENTS:
1. April 26, 2011 PC Agenda Report
\Mor_pri_sery\Department Share\Commune)/Development\DEV PMTS\Z o A\2011\SCE Rezone\PC Agenda Report(Cont.)
110520.docx
1
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MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission
FROM David A. Bobardt, Community Development Di actor
Prepared by Joseph Fiss, Principal Planner, !
DATE: March 28, 2011 (PC Meeting of 4/26/2011) —
SUBJECT: Consider Resolution Recommending Approval of General Plan
Amendment No. 2011-01,Zone Change No.2011-01,and Termination of
Development Agreement No. 1998-05 with Southern California Edison
(SCE) on 8.79 Acres Located on the North Side of the Union Pacific
Railroad Right-of-Way, West of Gabbed Road
BACKGROUND
On February 16, 2011, the City Council adopted Resolution No. 2011-3002, directing the
Planning Commission to study, hold a public hearing, and provide a recommendation on
amendments to the general plan land use designation and zoning map, and termination of
a development agreement with Southern California Edison on 8.79 acres located on the
north side of the Union Pacific Railroad right-of-way, west of Gabbert Road. The General
Plan land use designation is proposed to be amended from Medium Industrial (I-2) to
Agricultural(AG-1), and the Zoning Map is proposed to be amended from Limited Industrial
(M-2) to Agricultural Exclusive (AE).
DISCUSSION
On December 16, 1998, the Moorpark City Council adopted Resolution No. 98-1556,
Ordinance No. 249, and Ordinance No. 250 amending the General Plan land use
designation from Agricultural(AG-1)to Medium Industrial (1-2), amending the Zoning Map
from Agricultural Exclusive(AE)to Limited Industrial(M-2), and approving two development
agreements, one with A-B Properties and one with SCE on approximately 43 acres of land
west of Gabbert Road and north of the Southern Pacific(now Union Pacific) railroad right-
of-way, owned by A-B Properties and SCE. Since that time, SCE has decided not to
pursue development of their 8.79 acre property. In addition, SCE had initiated a lawsuit
over the development of an access road on an easement they held over Hitch Ranch
property that would have served both Tract 5147, owned by A-B Properties, and the
subject SCE property, allowing for industrial development of both properties.
PC ATTACHMENT 1
2
Honorable Planning Commission
April 26, 2011
Page 2
On September 14, 2010, the City of Moorpark entered into a Settlement Agreement and
Mutual Release with the Southern California Edison Company (SCE) as its part of the
settlement of the SCE lawsuit. As part of that agreement, the City agreed to schedule
hearings with a staff recommendation of approval of 1)an amendment to the General Plan
to reflect the original land use designation of Agriculture (AG-1), 2) an amendment to the
Zoning Map to its original Zoning designation of Agricultural Exclusive (AE), and 3)
termination of Development Agreement No. 1998-05.
The Development Agreement would remain in full force and effect for 20 years from the
operative date of the agreement(until January 15, 2019), unless modified ortemninated by
mutual consent of both parties. Procedures for termination are established in Section
15.40.120 of the Moorpark Municipal Code, which require the same review process as a
new development agreement; adoption of an ordinance by City Council after public
hearings by the Planning Commission and City Council.
General Plan and Zoning Consistency:
The table below shows the current General Plan and Zoning designations of the property,
and the surrounding properties. The proposed agricultural designations are consistent with
the existing Southern California Edison high tension power lines because SCE can lease
the property for uses such as pasture or a container plant nursery, both of which are
consistent with the proposed land use designations.
GENERAL PLAN/ZONING
Direction General Plan Zoning Land Use
—
Site Medium Industrial Limited Industrial
Site
(1-2) (M-2) Vacant
North Medium Industrial Limited Industrial Vacant
(1-2) (M-2) (Tract 5147)
South Medium
(1-2)Industrial Limite(M-2) trial Vacant
East 1 Agricultural Exclusive SP-1 Vacant
_... _._
(AE), (Hitch
West Agricultural Agricultural Exclusive Orchard
40 Ac Min (AE-40ac)
Findings
General Plan Amendments, Zone Changes, and Development Agreements are legislative
acts. Findings are not required for legislative acts unless a statute or local ordinance so
requires.
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Honorable Planning Commission
April 26, 2011
Page 3
PROCESSING TIME LIMITS
Time limits have been established for the processing of development projects under the
Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the
Subdivision Map Act (Government Code Title 7, Division 2), and the California
Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13,
and California Code of Regulations, Title 14, Chapter 3). Since this project includes a
General Plan Amendment, Zone Change, and a development agreement termination,
which are legislative acts, the decision is not subject to processing time limits.
ENVIRONMENTAL DETERMINATION
In accordance with the City's environmental review procedures adopted by resolution, the
Community Development Director determines the level of review necessary fora project to
comply with the California Environmental Quality Act (CEQA). Some projects may be
exempt from review based upon a specific category listed in CEQA. Other projects may be
exempt under a general rule that environmental review is not necessary where it can be
determined that there would be no possibility of significant effect upon the environment. A
project which does not qualify for an exemption requires the preparation of an Initial Study
to assess the level of potential environmental impacts.
Based upon the results of an Initial Study,the Director may determine that a project will not
have a significant effect upon the environment. In such a case, a Notice of Intent to Adopt
a Negative Declaration or a Mitigated Negative Declaration is prepared. For many projects,
a Negative Declaration or Mitigated Negative Declaration will prove to be sufficient
environmental documentation. If the Director determines that a project has the potential for
significant adverse impacts and adequate mitigation can not be readily identified, an
Environmental Impact Report (EIR) is prepared.
The Director has reviewed this project and found it to qualify for a General Rule Exemption
in accordance with Section 15061 of California Code of Regulations(CEQA Guidelines) in
that CEQA only applies to projects which have the potential for causing a significant effect
on the environment. No further environmental documentation is required.
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close the public hearing.
2. Adopt Resolution No. PC-2011- recommending to the City Council approval of
General Plan Amendment No. 2011-01, Zone Change No. 2011-01, and
Termination of Development Agreement No. 1998-05.
ATTACHMENTS:
1. Location Map
2. Aerial Photograph
3. Development Agreement No. 1998-05
4. Draft PC Resolution
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AERIAL PHOTOGRAPH
PC ATTACHMENT 2
6
Recording Requested By gg_Qg326b Rec Fee .Oo
And When Recorded Return to:
.00
CITY CLERK Recorded
CITY OF MOORPARK Official Records
799 Moorpark Avenue County of
Moorpark. California 93021 Ventura
Richard D. Dean I
Recorder
8:02aa 5-Mar-99 I NOOR CI 30
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
SOUTHERN CALIFORNIA EDISON COMPANY
THIS AOABBXKNT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIRpXRWIB OF GOVERNMENT CODE §65060.5
PC ATTACHMENT 3
7
DEVELOPMENT AORKENENP
This Development Agreemen ("the Agreement") is made and
entered into this 10th day of naar 199a, by and between
the CITY OF MOORPARK, a municipal rporation, (referred to
hereinafter as "city") and Southern California Edison Company,
Corporation (referred to hereinafter a s "Developer") .
City and Developer are referred to hereinafter individually as
"Party" and collectively as "Parties." In consideration of the
mutual covenants and agreement's contained in this Agreement, City
and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of which
is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code section 65864 et seq. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within the City for the
development of such property in order to establish
certainty in the development process.
1.2. [INTENTIONALLY LEFT BLANK]
1.3. Developer is c
owner in fee simple of certain real
property in the city of Moorpark, as specifically
described by the legal description set forth in Exhibit
A, which exhibit is attached hereto and incorporated
herein by this reference the "Property") .
1.4. City has approved, or is n the process of approving,
General Plan Amendment No. 97-2("GP")and Zone Change
No. 97-6 ("ZC'), (The GP and ZC, are collectively
referred to as the "Project Approvals
1.5. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in
accordance with the Project Approvals and this
Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its
governmental and proprietary powers to the extent
specified in this Agreement.
1.6. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally
challenge the limitations and exactions imposed upon
a.∎ -2-
6
the development of the Property pursuant to the Project
Approvals, this Agreement and any Subsequent Approvals
(as defined in Section 5.3 of this Agreement) and to
provide the public benefits and improvements specified
in this Agreement.
1.7. city and Developer acknowledge and agree that the
consideration that is o be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is n nsistent with the General Plan of City
as amended by General Plan Amendment No.97-6.
1.8. On November 9, 1998, the Planning Commission of City
commenced a duly noticed public hearing on this
Agreement and at the conclusion of the hearing
recommended approval of the Agreement.
1.9. On November 18, 1998, the city Council of City ("city
Council") commenced a duly noticed public hearing o
this Agreement which was continued to December 2, 1998,
and at the conclusion of the hearing approved the
Agreement by Ordinance No. 250 ("the Enabling
Ordinance") .
2. Property Subject To This Agreement. All of the Property shall
be subject to this Agreement. The Property may be referred to
hereinafter as the site or "the Project area".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms 'City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, except
that the term "Developer" shall not include the purchaser or
transferee of any lot within the Project area that has been
fully developed in accordance with the Project Approvals and
this Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which the Developer has a
legal interest is, and shall be, conclusively nclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
the Developer's interest in any portion of the
Property, that Developer shall be released from ios
obligations with respect to the portion so sold or
x..
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transferred subsequent to the effective date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
delivers to City a written assumption sumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
r otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale
transfer, except as otherwise expressly provided in
this Agreement.
4. Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by this Agreement.
4.2. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation and the Uniform
Administrative Code in effect at the time the plan
check or permit is approved and to any federal or state
building requirements that are then in effect
(collectively the Building Codes") .
5. Vesting of Development Rights.
5.1. Timing of Development. In Pardee Construction Co. v.
City of Camarillo, 37 Ca1.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later-adopted initiative
restricting the rate of development to prevail against
the parties' agreement. City and Developer intend to
avoid the result in Pardee by acknowledging and
providing that Developer shall have the right, without
obligation, to develop the Property in uch order and
at such rate and times as Developer deems appropriate
within the exercise of its subjective business
judgment, except as provided for in this Agreement.
10
In furtherance of the Parties' intent, as set forth in
this section, no future amendment of any existing City
ordinance or resolution, or future adoption of any
ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property. In particular, but without limiting any of
the foregoing, no umerical restriction shall be placed
on the number of building units that can be built each
year within the Project Area. However, nothing in this
section shall be construed to limit City's right to
insure that Developer timely provides all
infrastructure required by the Project Approvals,
Subsequent Approvals and this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of
the Project Approvals, whether adopted or approved by
the City Council or through the initiative or
referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to
the amendment.
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, s a permits, design review approvals (e.g.
site plans, architectural plans and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively the Subsequent
Approvals"; individually "a Subsequent Approval") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal CMe and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City in City's sole
x,.
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discretion(collectively 'City Laws"), except City Laws
that
(a) change any permitted or conditional permitted uses
of the Property from what is allowed by the Project
Approvals or this Agreement;
(b) limit or control the rate, timing, phasing or
sequencing of the approval, development or nstruction
of all or any part of the Project in any manner,
provided that all infrastructure required to serve the
portion of the Property covered by the Subsequent
Approval is in place or is scheduled to be in place
prior to completion of construction;
(c) are not uniforndy applied on a City-wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations; or
(d) control commercial rents.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire eight (8)years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the fact that the final map may be
filed in phases. Each Developer hereby waives any
right that it may have under the Subdivision Map Act,
Government Code section 66410 et seq., or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the tens of
this Agreement.
The term of any Subsequent Approval, except a tentative
map, shall be one year; provided that the term may be
extended by the decision maker for two (2) additional
one (1) year periods upon application of the Developer
holding the Subsequent Approval filed with City's
Department of Community Development prior to the
expiration of that Approval. Each such Subsequent
Approval shall be deemed inaugurated, and no extension
shall be necessary, if a building permit was sued and
the foundation received final inspection by City's
Building Inspector prior to the expiration of that
Approval.
6
12
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly,throughout the term of
this Agreement, the Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, the Developer shall have the right, at its
election and without risk to any right that is vested
in it pursuant to this section, to apply to City for
minor modifications to Project Approvals and Subsequent
Approvals. The approval or conditional approval of any
such minor modification shall not require an amendment
to this Agreement, provided that, in addition to any
other findings that may be required in order to approve
or conditionally approve the modification, a finding is
made that the modification is consistent with this
Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from the Developer if all
infrastructure required to serve the portion of the
Property covered by the building permit is in place or
is scheduled to be in place prior to completion of
construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this
Agreement have been satisfied. In no event shall
building permits be allocated on any annual numerical
basis or on any arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of
a final inspection or certificate of occupancy,
provided that the moratorium is adopted or imposed (1)
on a City-wide basis to all substantially similar types
of development projects and properties with similar
land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
6. Developer Agreements.
6.1. The Developer shall comply- with (i) this Agreement,
(ii) the Project Approvals, and (iii) all Subsequent
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Approvals for which it was the applicant or a successor
in interest to the applicant.
6.2. All lands and interests in land dedicated to City shall
be free and clear of liens and encumbrances other than
ieasements or restrictions that do not preclude or
nterfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.3. As a condition of the issuance of each building permit,
Developer shall pay City a fee to be used for park
improvements within the City of Moorpark. The amount
of the fee shall be twenty-five cents ($.25) per square
foot of gross floor area. The fee shall be adjusted
annually (commencing one (1) year after the first
building permit is issued within the Project Area by
any i in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall he
determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles/Anaheim/Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase) .
This fee may be expended by City in its sole and
unfettered discretion.
6.4. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area,
Developer shall pay city a development fee as described
herein the "Development Fee') . The Development Fee
may be expended by City in its sole and unfettered
discretion. On the effective date of this Agreement,
the amount of the Development Pee shall be Twenty One
Thousand Dollars ($21,000.00) per acre of each lot on
which the building is located. The fee shall be
adjusted annually (commencing one (1) year after the
first building permit is issued within the Project Area
by any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPS increase shall be
determined by using the information provided by the
U.S. Department of labor, Bureau of Labor Statistics,
for all urban consumers within the Los
Angeles/Anaheim/Riverside metropolitan area during the
prior or ya. The calcuu1atiion�hall be made using the
which is four prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval ours in June, then the
month of February is used to calculate the increase) .
.c.. s
14
6.5. As a condition of the issuance of each building permit
for any use within the boundaries of the Project Area
Developer shall pay City a traffic mitigation fee as
described herein ("Citywide Traffic Fees) . The
Citywide Traffic Fee may be expended by City in
sole and unfettered discretion. On the effective date
of this Agreement, the amount of the Citywide Traffic
Fee shall be Eighteen Thousand Dollars ($18,000.00) per
acre of each lot on which the use is located.
Commencing on January 1, 2001, and annually thereafter,
the Citywide Traffic Pee shall be increased to reflect
the change in the State Highway Bid Price Index for the
twelve (12) month period that is reported in the latest
issue of the Engineering News Record that is available
in December 31 of the preceding year ("annual
ndexing") . In the event there is a decrease in the
referenced Index for any annual indexing, the Citywide
Traffic Fee shall remain at its then current amount
until such time as the next subsequent annual indexing
which results in an increase.
6.6. On the operative date of this Agreement, Developer
shall pay all outstanding City processing and
environmental processing costs related to the project
and preparation of this Agreement
6.7. Developer agrees to pay Air Quality Fees, that are to
be calculated by City at its sole and unfettered
discretion consistent with similar projects in the City
as a condition on each Subsequent Approval within the
boundaries of the Project Area. The Air Quality Fees
may be expended by City in its sole discretion for
reduction of regional air pollution emissions and to
mitigate residual Project air quality impacts.
6.8. Developer agrees to cast affirmative ballots for the
formation of an assessment district and levying of
assessments, for the maintenance of parkway and median
landscaping, street lighting and if requested by the
City Council, parks for the provision of special
benefits conferred by same upon properties within the
Project. Developer further agrees to form one or more
property owner associations and to obligate s aid
associations to provide for maintenance of parkway and
median landscaping, street lighting, and if requested
by the City Council, parks the event the
s r
aforementioned assessment district dissolved o or
altered in any way assessments are reduced or
limited i n any way by a ballot election of property
owners, or if the assessment district is invalidated by
court fcricn.
m.. P
•
15
6.9. In addition to fees specifically mentioned in this
Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the
rate and amount in effect at the time the fee is
required to be paid. Said fees include but are not
limited to Police Facilities Fees, Fire Facilities
Fees, Library Facilities Fees, entitlement processing
fees, and plan check and permit fees for buildings, and
public improvements. Developer further agrees that
unless specifically exempted by this Agreement, it is
subject to all fees imposed by City at the operative
date of this Agreement and such future fees imposed as
determined by City in its sole and unfettered
discretion so long as said fee ie imposed on similarly
situated properties.
6.10 Prior to City Council action on any Subsequent
Approval, or grading of the property, whichever occurs
first, Developer agrees to provide City an irrevocable
offer of dedication to dedicate right-of-way at no cost
to City for the future 118 bypass along the entire
length of the west aide of the property, outside of the
. easements for the Gabbert Channel. The right-of-way
shall be one hundred feet (100.) wide plus any
necessary slope easements to accommodate a level 100'
right-of-way and slope easements to accommodate a grade
separation crossing of the railroad tracks along the
southern boundary. Developer further agrees to
dedicate access rights from the property to the City
for the 118 bypass. City shall have final approval of
the location, legal description and use of the property
offered for dedication. City may transfer its interest
in the property after acceptance of its dedication to
any other public entity.
6.11. Developer agrees that as part of any grading of the
property the right-of-way for the future 118 bypass
shall be graded per City direction.
6.12. Developer agrees to comply with all the provisions of
the Hillside Management Ordinance (chapter 17.38 of the
Municipal Code) of the City.
6.13. Developer agrees to pay a pro-rata share, as determined
by the City at its sole and unfettered discretion, for
the funding and construction of the improvements
identified in the Gabbert and Walnut Canyon Channels
Deficiency Study. Developer also acknowledges that
interim improvements may also be ecessary to
fagrees any new use or development of the property
and Developer grees that they shall be responsible for
any such interim improvements as their sole
responsibility, without credit of these coats, except
as may be provided in the implementation plan for the
Gabbert and Walnut Canyon Channels Deficiency Study.
6.14. Prior to any subdivision or use of the property,
e
Developer agrees to acquire and construct, at their
sole cost, dedicated public a s to the properties,
as approved by the City Council. Secondary access to
comply with City and public safety requirements shall
also be provided at their sole cost.
6.15. Developer agrees to not oppose creation of a
redevelopment Project Area (as defined by applicable
State law) encompassing any part of the Property
provided that the Project Area is consistent with the
rights of Developer under this Agreement.
6.16. Developer agrees not to request any concession, waiver,
modification or reduction of any fee, regulation,
requirement, policy or standard condition for any
Subsequent Approval and further agrees to pay all fees
imposed by City for future buildings, so long as said
fees are also imposed in a similar manner on similar
projects.
6.17. Prior to the effective date of the Ordinance approving
Zone Change No. 97-6, Developer shall execute in favor
of city and record in the Office of the County Recorder
of the County of Ventura a Covenant Running with the
Land (Covenant) as set forth in Exhibit °P° attached
hereto and incorporated herein to limit use of the
Property.
6.18. Developer agrees that as a condition of the City's
approval of the first Subsequent Approval for the
Property, Developer shall submit improvement plans to
improve Gabbert Road from the Union Pacific Gabbert
Road rail crossing to a point approximately on
hundred twenty-five (125) feet north of the rail
crossing to four travel lanes, two eight (S) foot
bike lanes and two ten (10) foot parkways inclusive
of sidewalks (Gabbert Road improvements). The plans
for the Gabbert Road improvements must be approved by
the City and a surety in an amount and form
determined by the City in a its sole and unfettered
discretion to guarantee this improvement shall be
provided prior to approval of the first final Map for
the Property occurring after the operative date of
this Agreement. The Gabbert Road improvements shall
be constructed prior to issuance of a building permit
tot any portion of the Property that exceeds forty
a_ -11-
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percent (404) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement i-n the event the Improvements
required pursuant to Section 6.21 of this Agreement
are constructed, accepted by the City and open to the
public prior to the issuance of a building permit for
any portion of the Property that exceeds forty
percent (409) of the acreage of the total of all lots
created by the recordation of the first final map for
the Property occurring after the operative date of
this Agreement, then the improvements required by
this Section 6.18 shall not be required to be
constructed by the Developer.
6.19. Prior to City action on the first Subsequent Approval
for the Property, Developer shall provide a traffic
study to determine if signalization of the
intersection of the Gabbert Road/Poindexter Avenue i s
needed. Developer agrees that City at its sole and
unfettered discretion may condition any Subsequent
Approval of the Property to construct the traffic
signal or pay a fair share payment at the above
intersection. Construction of the signal, if
required, shall occur at the same time as the Gabbert
Road improvements in Section 6.114, above, or such
later date as determined by the City Council at its
sole and unfettered discretion.
6.20. Developer shall construct a thirty-two (32) foot
wide paved access road (paved access road) to the
Property to serve as the primary access until such
time as the Improvements referenced in Section 6.22 •
are constructed. At such time as the Improvements
in section 6.21 are opened to the public, the paved
access road shall become an emergency access only
for the Property. The paved access road shall be
located generally following the existing unpaved
access road to the Property with the final location
of said paved access road to be determined by the
City at its sole and unfettered discretion. The
paved access road shall be constructed to City
Standards for an industrial street but with no
requirement for curb, gutter, or sidewalk except
curbs that may be determined necessary to provide
for positive drainage.
6.21. Prior to issuance su n c of a building permit for any
portion of theProperty that exceeds seventy percent
(70%) of the acreage of the total of all lots
created by the recordation of the first final Map
for the Property occurring after the operative date
e:., 12-
16
of this Agreement, Developer shall cause to be
constructed a street extending north from Los
Angeles Avenue (SR 118) including an underground
crossing of the Union Pacific railroad tracks to a
point approximately six hundred (500) feet north of
said railroad tracks (Improvements) within the area
of the offer of dedication required of Developer in
Section 6.10 of this Agreement. The preliminary
improvement plans must be approved by the City and a
surety in amount and form determined by the City
in its sole nand unfettered discretion to guarantee
the Improvements shall be provided prior to approval
of the first final map for the Property occurring
after the operative date of this Agreement. Prior
to issuance of a building permit for any portion of
the Property that exceeds forty percent (408) of the
acreage of the total of all lots created by the
recordation of the first final map for the Property
occurring after the operative date of this
Agreement, City must approve in it sole and
unfettered discretion the final design plans and
specifications for the Improvements and a financing
plan that demonstrates the ability to fund the
Improvements. This financing plan may include at
City's sole and unfettered discretion, use of
Citywide Traffic monies.
7. City Agreements.
7.1. City shall use its best efforts to process plan
checking and related processing for the project in an
expedited manner.
7.2. City shall exempt this project from payment of the
Gabbert Road/Casey Road Area of Construction (ADC)
fees.
7.3. City agrees that upon receipt of a landowners' petition
by developer and Developer's payment of a fee as
determined necessary by City in its sole and unfettered
discretion, City shall commence proceedings to form a
Mello-Roos Community Facilities District ("District")
and to incur bonded indebtedness to finance all o
portions of the on site and off site public facilities,
infrastructure and services that are required by this
Agreement and Subsequent Approvals and that may be
provided pursuant to the Mello-Roos Community
Facilities Act of 1982 (the °Act"); provided, however,
the City Council, n its sole and unfettered
discretion, may abandon establishment of the District
upon the conclusion of the public hearing required by
California Government Code Section 53321 and/or deem it
XE. -13-
19
unnecessary to incur bonded indebtedness at the
conclusion of the hearing required by California
Government Code Section 53345. The formation, type of
assessment district (if City determines another type of
assessment district other than District is more
appropriate) and method and spread of assessment shall
he at the City's sole and unfettered discretion.
7.4. if requested in writing by Developer and limited to
City's legal authority, City shall proceed to acquire,
at Developer's sole cost and expense, easements or fee
title to land in which Developer does not have title or
interest in order to allow construction of public
improvements required of Developer which are outside
Developer's legal boundaries. The process shall
generally follow Government Code Section 66457 et. seq.
and shall include the obligation of Developer to enter
into an agreement with City, guarantee by cash deposits
and other security as the City may require, to pay all
City costs including but not limited to, acquisition of
the interest, attorney fees, appraisal fees,
engineering fees, and City overhead expenses of fifteen
percent (15%) on all out-of-pocket costs and City staff
costs.
8. Supersession of Agreement by Change of Law. In the event that
any state or federal law or regulation enacted after the date
the Enabling Ordinance was adopted by the City Council
prevents or precludes compliance with any provision of the
Agreement, such provision shall be deemed modified or
suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City in its
sole and unfettered discretion.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by the Developer with the provisions of this
Agreement, the Agreement shall be reviewed annually in
accordance with Moorpark Municipal code chapter 15.40. of
City or any successor thereof then in effect. The failure of
City to conduct any such annual review shall not, in any
diner, constitute a breach of this Agreement by City,
minish, impede, or abrogate the obligations of the Developer
hereunder or render this Agreement invalid or void.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, and
Developer's obligations and restrictions on development as
provided for in Sections 6.18, 6.19, 6.20, and 6.21 of this
Agreement shall be excused during any period of 'Excusable
Delay', as hereinafter defined, provided that the Party
claiming the delay gives notice of the delay to the other
Parties as soon as possible after the same has been
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ascertained. For purposes hereof, Excusable Delay shall mean
delay that directly affects, and is beyond the reasonable
control of, the Party claiming the delay, including without
limitation: (a) act of God; (b) civil commotion; (c) riot; (d)
strike, picketing or other labor dispute; (e) shortage of
materials or supplies; (a) damage to work r n progress by
reason of fire, flood, earthquake or other casualty; (f)
failure, delay or inability of City to provide adequate levels
of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water
to serve any portion of the Property due to drought: (g) delay
caused by a restriction imposed or mandated by a governmental
entity other than City; or (h) litigation brought by a third
party attacking the validity of this Agreement, a Project
Approval, a Subsequent Approval or any other action necessary
for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or
(b) willfully violates any order, ruling or decision
of any regulatory or judicial body having jurisdiction
over the Property or the Project, provided that
Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good
faith, in which event no breach of this Agreement shall
be deemed to have occurred unless and until there is a
final adjudication adverse to Developer; or
(c) fails to make any payments required under this
Agreement; or
(d) materially breaches any of the other provisions of
the Agreement and the same is not cured within the time
set forth in a written notice of violation from City to
Developer, which period of time shall not be less than
ten (10) days from the date that the notice is deemed
received, provided if Developer cannot reasonably cure
the breach within the time set forth in the notice,
Developer fails to commence to cure the breach within
such time limit and diligently effect such cure
thereafter.
11.2. Default by City. City shall be deemed in breach of
this Agreement it _t:
(a) materially breaches any of the provisions of the
°' -15-
21
Agreement and the same is not cure within the time set
forth in written notice of violation from Developer
to City, which period shall not be less than ten (10)
days from the date the notice is deemed received,
provided if City cannot reasonably cure the breach
within the time set forth in the notice, fails to
commence to cure the breach within such time limit and
diligently effect such cure thereafter.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this section of the Agreement, the nature
of the alleged breach, and the manner in which the
breach may be satisfactorily cured. The notice shall
be deemed given on the date that it is personally
delivered or on the third day following the day after
it is deposited in the United States mail, in
accordance with Section 20 hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection.
The remedies for breach of the Agreement by City shall
be injunctive relief and/or specific performance.
The remedies for breach of the Agreement by the
Developer shall be injunctive relief and/or specific
performance. In addition, and notwithstanding any
other language of this Agreement, if the breach is of
Subsection 6.4 Cr 6.5 or 6.9 or 6.10 or 6.18 or 6.19,
or 6.20, or 6.21 of this Agreement, City shall have the
right to withhold the issuance of building permits from
the date that the notice of violation was given
pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of
violation.
Nothing in this subsection shall be deemed to preclude
City from prosecuting a criminal action against the
Developer if it violates any City ordinance or state
statute.
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12. Mortgage Protection. At the same time that City gives notice
to the Developer of a breach, City shall send a copy of the
notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal
interest ("Financier), provided that the Financier has given
prior written notice of its name and mailing address to City
and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or
certified, postage prepaid, return receipt requested, and
shall be deemed received upon Che third (3rd) day after
deposit.
Each Financier that has given prior notice to City pursuant to
this section shall have the right, at its option and insofar
as the rights of City are concerned, to cure any such breach
within fifteen (l5) days after the receipt of the notice from
City. If such breach cannot be cured within such time period,
the Financier shall have such additional period as may be
reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and
commences the cure within fifteen (15) days after receipt of
the notice from City and thereafter diligently prosecutes the
same to completion. City shall not commence legal action
against Developer by reason of Developer's breach without
allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be
binding and effective against the Financier and every owner of
the Property, or part thereof, whose title thereto is acquired
by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time, any
Developer may deliver written notice to City and City may
deliver written notice to the Developer requesting that such
Party certify in Ting that, to the knowledge of the
certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this
Agreement has not been amended, or if amended, the identity of
each amendment, and (iii) the requesting Party is not in
breach of this Agreement, Cr if in breach, a description of
e ach such breach. The Party receiving such a request shall
execute and return the certificate within thirty (301 days
following receipt of the notice. City acknowledges that a
certificate may be relied upon by successors in interest to
the Developer who requested the certificate and by holders of
record of deeds of trust on the portion of the Property in
which that Developer has a legal interest.
19. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property r C accordance
herewith may be appealed by the SevaloSessional- to the Council,
a_
23
provided that any such appeal shall be filed with the City
Clerk of City within ten (10) days after the affected
Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify
the staff decision within thirty (30) days after the appeal
was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Ordinance No. 59 of City or any
successor thereof then in effect, this Agreement may be
amended or terminated, in whole or in part by mutual consent
of City and the Developer.
15.1. Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indenmification. The Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims, demands,
damages, injuries or judgments arising out of, or resulting in
any may from, the Developer's performance pursuant to this
Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and
agents from and against any action or proceeding to attack,
review, set aside, void or annul this Agreement or any
provision thereof or the Project Approvals or any Subsequent
Approvals.
17. Time of Essence. Time s of the essence for each provision of
this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on the
date the Enabling Ordinance becomes effective pursuant to
Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
a term of twenty (20) years c commencing on its operative
date unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein.
Upon expiration of the term or arlier termination of this
Agreement, the Parties shall execute any document reasonably
-18-
24
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
received when personally delivered or upon the third (3rd) day
after deposit in the United States mail, registered or
certified, postage prepaid, return receipt equested, to the
Parties at the addresses set forth in Exhibit "C" attached
hereto and incorporated herein.
Any Party may, from time to time by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement contains the entire
agreement between the Parties regarding the subject matter
hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not
be amended, except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. if any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of the
other Party in any respect. Nothing contained herein or in
any document executed in connection herewith shall be
construed a s creating the relationship of partners, joint
ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and
entered into for th'e sole benefit of the Parties and their
successors in interest. No other person shall have any right
of action based upon any provision of this Agreement.
.a.
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26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Ordinance No. 59 of City or any
successor thereof then in effect.
27. Cooperation Between City and Developers. City and each
Developer shall execute cute and deliver to the other all such
other and further instruments and documents as may be
necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience only and they shall not constitute
a part of e this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in onflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement made, entered
into, and executed in the County of Ventura,is California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Attorneys' fees under this section shall include attorneys'
fees s any appeal and any post-judgment proceedings to .
enforce the judgment. This provision is separate and several
and shall survive the merger of this Agreement into any
judgment on this Agreement.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
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IIi WITNESS WHEREOF, Southern California Edison Company and
City of Moorpark have each executed this Development Agreement on
the date first above art_ten.
H 4[IccikSRuii ,1I • ,
Pa trek Hunt-r
Hayti'
ATTEST
J. . ,aQ I`c._ Deborah S. Tr affen dt
( 3/4g
City via.
Southern California
Edison Company
.eiDiane nmuel le
Regional Manager
27
EXHIBIT A
LEGAL @HSCHYPrLOH
CSNGERTI, identified as Assessor's Parcel Nos. 500-0-390-235
SCE 1
28
Legal Description
That portion of the West one-half of the Southeast one-quarter of Section 6,
Township 2 North,Range 19 West,in Subdivision`L"ofthe Rancho Simi,as per map
recorded in Book 3,page 7 of Maps,in the office of the County Recorder of Ventura
County,described as follows:
Beginning at a point in the Easterly line of die West one-half of the Southeast one-quarter
of said Section 6,said point being The intersection of said Easterly line with a line parallel
with and 295 feet Northerly,measured at ught angles,from the Northerly line of that
certain oame of land conveyed by H.C.Estes,et al.to Southern Pacific Railroad
Company,by deed dated October 6,1899 and recorded in Book 62,page 6 of Deeds,in
the office of the County Recorder of said Comity,thence Westerly in a direct line to a
point in the Westerly lice of the West one-half of the Southeast one-quarter of said
Section 6,said last mentioned point being the intersection of said Westerly line with a
line parallel with and 270 feet Northerly,measured at right angles,from the Northerly
line of said land conveyed to Southern Pacific Railroad Company;thence southerly along
said Westerly line to said Northerly line;thence Early along said Northerly line to said
Easterly line;thence Northerly along said Easterly line;thence Northerly along said
Easterly line to the point of beginning.
29
BYRIHIT
COVENANT RUNNING MITI THE LAND
THIS COVENANT is made this a°frk day of ebrwwr3 Ig99 , by and
between the A-E Properties and Southern California Edison
Company (Covenantors") and the City of Moorpark
("Covenantee") .
WREREAH, Covenantor is the owner of certain real property
(500.0.340.22 and 23) the City of Moorpark, County of
Ventura, more particularly described in Exhibit °A° attached
hereto and made a part hereof ("the Covenantor Property"); and
WHEREAS, Covenantee is the owner of certain real property at
799 Moorpark Avenue, in the City of Moorpark, County of
Ventura, more particularly described in Exhibit "B" attached
hereto and made a part hereof ("the Covenantor Property"); and
NEEREAS, Covenantee is willing to rezone the Covenantor
Property from Agricultural Exclusive (AE) to Limited
Industrial (M-2) but for the concern that some of the uses
that are presently, or may subsequently be, allowed by right
or permit in the CPO zone or may be, inappropriate uses
for the Covenantor Property because of its particular
location;
WHEREAS, Covenantor seeks to have the Covenantors Property
rezoned from Agricultural Fxrlusive (A8) to Limited Industrial
(M-2) but acknowledges that some of the uses that are
presently, or may subsequently be, allowed by right or permit
in the M-2 zone are, or may be, inappropriate uses for the
Covenantor Property because of its particular location; and
NON, THEREFORE, in consideration of the mutual promises of the
parties to this Covenant, each to the other as Covenantor and
Covenantee, and expressly for the benefit of, and to bind,
their successors in interest, the parties agree as follows,
B-I
30
Covenantee agrees to adopt an ordinance o ning the
Covenantor Property from Agricultural Exclusive (AE) to
Limited industrial (M-2);
Covenantor agrees that, comnencing on the effective date
on
of the ordinance rezoning the Covenantor Property from
Agricultural Exclusive (AE) to Limited Industrial (M-2) .
Subject to the following restrictions in addition, and
superseding the M-2 regulations.
A. Primary uses, except agricultural crops, shall be
conducted within completely enclosed buildings and metal faced
buildings shall not be allowed as principal buildings. Outside
storage and operations shall not be allowed as primary uses,
only accessory outside storage shall be allowed, subject to
the same limitations as M-1 (confined to the area to the rear
of the principal building or the r r two-thirds of the
property, whichever is more restrictive, and screened from
view from any property line by appropriate walls, fencing,
earth mounds, or landscaping) .
e. The following uses shall not he allowed as a primary use
Manufacturing - Batteries
Manufacturing - Metal industries, primary; Rolling, drawing,
and extruding
Manufacturing - Rubber and plastics products
Manufacturing - Tire retreading and recapping
Manufacturing - Cement, concrete and plaster products
Mini-storage
Recreational vehicle storage
Signs - Freestanding off-site advertising signs
Transportation services - Truck storage, overnight
3. Covenantor and Covenantee agree that, c o ing on the
effective date of the ordinance rezoning the commencing
Property from Agricultural Exclusive (AR) to Limited
Industrial (M-2), all uses specified in Paragraph 2.8. hereof
that are presently allowed or that at any time in the future
may be allowed in the M-2 (Limited Industrial) zone, whether
by right or by permit, shall be deemed transferred from the
Covenantors Property to the Covenantee Property for the
benefit of the Covenantee Property.
4. Covenantors and Covenantee agree that from time to time
Covenantee may substitute any other property owned by
Covenantee on the date of the substitution for the Covenantee
Property ("the Substitute Covenantee Property") without the
consent of Covenantor by the recordation of an amendment co
B-2
31
this Covenant. The amendment shall describe the Substitute
Covenantee Property and shall provide that, commencing on the
date of recordation of the amendment, all uses not specified
in Paragraph 2 hereof that are presently allowed, or that at
any time in the future may be allowed, in the M-2 (Limited
Industrial) zone, whether by right or by permit, shall be
deemed transferred from that Covenantor Property to the
Substitute Covenantee Property far the benefit of the
Substitute Covenantee Property.
5. All of the covenants, restrictions, and limitations set
forth herein shall run with the Covenantee Property and the
Covenantor Property and shall benefit and bind all persons,
whether natural or legal, having or acquiring any right,
title, or interest in any portion of the Covenantee Property
or the covenantor Property. Each grantee of a conveyance or
purchaser under a contract of sale or similar instrument that
covers any right, title, or interest in or to any portion of
the Covenantee Property or the Covenantor Property, by
accepting a deed or a contract of sale or similar milar instrument,
accepts the conveyance or sale subject to, and agrees to be
bound and benefited by, all of the covenants, restrictions and
limitations set forth herein.
6. Nothing in this Covenant shall be construed so as to
limit the right of Covenantee to rezone, or the right of
Covenantor to petition Covenantee to rezone the Covenantor
Property in the future.
�. This Covenant shall remain in full force and effect until
such time as n ordinance rezoning the Covenantor Property
from Agricultural Exclusive (AB) to Limited Industrial (M-2)
to another zone designation becomes effective.
e. This Covenant may be enforced by proceedings at law or
equity against any person who violates or attempts to violate
-a covenant, restriction or limitation hereof. The prevailing
party shall be entitled to recover such attorneys' fees and
court costs as it reasonably incurs in such a proceeding.
9. In the event any provision of this Covenant is found to
be invalid or unenforceable in any proceeding at law or in
equity, such finding shall not affect the other provisions of
this Covenant, which shall remain in full force and effect.
n-3
32
10. Either party may record in the office of the Recorder of
Ventura County this Covenant or any amendment hereto specified
in Paragraph 4 hereof without the consent of the other party.
IN WITNESS WHEREOF, Covenantor and Covenantee have executed this
Covenant on the date first above written
COVENANTORS •VENANTEE
�'AU R[d CALIFORNIA CITY OF '. TRPARA
EDISON COMPANY
9-4
33
EAISBET C
To City: City of Moorpark
799 Moorpark Avenue
Moorpark, (A 93021
Attn. City Manager
To Developer: Southern California Edison Company
100 Long Beach Blvd, Suite 1004
Long Reach, CA 90002
Akin. Regional Manager
C-1
34
•
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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MOORPARK
Moorpark Avenue Mcarya,k,CaltOmia 93921 )805)529-8850
STATE OF CALIFORNIA)
COUNTY OF VENTURA ) se.
On this 10Ch day of February in the year 1999, before m
Deborah S. Traffenstedt, City Clerk of the City of Moorpark,
California, personally appeared Patrick Hunter, personally known to
me to be the person who executed this instrument as the Mayor of
the City of Moorpark and acknowledged to me that the City executed
it.
Witness my hand and Official Seal
yiemmkre
Deborah S. Traffenste
City Clerk eg
PATRICK HUNTER CHSISTOPHER EVANS RPEP -_.DEBBIE RODGERS
Maw, Mayo,Pro Ten CLINT auna,emno- Cou,oeate, Ge"enmemN,
36
RESOLUTION NO. PC-2011-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF MOORPARK, CALIFORNIA, RECOMMENDING
APPROVAL OF GENERAL PLAN AMENDMENT NO. 2011-01,
ZONE CHANGE NO. 2011-01, AND TERMINATION OF A
DEVELOPMENT AGREEMENT NO. 1998-05 WITH SOUTHERN
CALIFORNIA EDISON (SCE) ON 8.79 ACRES LOCATED ON THE
NORTH SIDE OF THE UNION PACIFIC RAILROAD RIGHT-OF-
WAY, WEST OF GABBERT ROAD
WHEREAS, at a duly noticed public hearing on April 26, 2011, the Planning
Commission considered General Plan Amendment No. 2011-01, Zone Change No.
2011-01, and Termination of a Development Agreement No. 1998-05 with Southern
California Edison (SCE) on 8.79 Acres Located on the North Side of the Union Pacific
Railroad Right-of-Way, West of Gabbert Road.; and
WHEREAS, at its meeting of April 26, 2011 the Planning Commission considered
the agenda report and any supplements thereto and written public comments; opened
the public hearing and took and considered public testimony both for and against the
proposal; and reached a decision on this matter; and
WHEREAS, the Planning Commission concurs with the Community Development
Director's determination that this qualifies for a General Rule Exemption in accordance
with Section 15061 of California Code of Regulations (CEQA Guidelines). No further
environmental documentation is required.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. PLANNING COMMISSION RECOMMENDATION: The Planning
Commission recommends to the City Council approval of General Plan Amendment No.
2011-01, Zone Change No. 2011-01, and Termination of a Development Agreement No.
1990-05.
SECTION 2. Filing of Resolution: The Community Development Director shall
cause a certified resolution to be filed in the book of original resolutions.
PC ATTACHMENT 4
37
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Current Designation: Medium Industrial (1-2)
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Proposed Designation: Agricultural Exclusive (AE)
I Current Designation: Limited Industrial (M-2)
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EXHIBIT B
39
ITEM: 8.B.
MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission i.
i
FROM: David A. Bobardt, Community Development 'rector
Prepared by Joseph Fiss, Principal Planner
DATE: May 20, 2011 (PC Meeting of 5/24/11)
SUBJECT: Consider a Resolution Approving Conditional Use Permit No. 2011-
02, a Conditional Use Permit to Allow the Retail Sale.of Beer, Wine,
and Distilled Spirits for Off-Site Consumption from an Existing Retail
Establishment at 800 Los Angeles Avenue on the Application of
Beth Aboulafia for Target Corporation
BACKGROUND
On April 8, 2011, an application was filed by Beth Aboulafia, for Target Corporation for
Conditional Use Permit No. 2011-02, to allow the retail sale of beer, wine, and distilled
spirits for off-site consumption from the existing Target store, located at 800 Los
Angeles Avenue, in the Moorpark Marketplace shopping center.
DISCUSSION
Project Setting
Existing Site Conditions:
The proposed use would take place within the existing Target store, a 125,737 square
foot retail building in the Moorpark Marketplace shopping center on the south side of
Los Angeles Avenue, east of Miller Parkway and west of the SR-23 freeway.
Previous Applications:
On March 20, 2002 City Council approved Resolution No. 2002-420 for Commercial
Planned Development No. 2001-01, to construct the 357,621 square-foot Moorpark
Marketplace shopping center and Vesting Tract Map No. 5321 for subdivision of
approximately twenty nine (29) acres into eight (8) lots. On February 13, 2004,
Administrative Permit No. 2004-01 was approved, allowing the sale of beer and wine for
off-site consumption from the Target store.
413
Honorable Planning Commission
May 24, 2011
Page 2
On April 22, 2011, a building permit was issued for a major interior remodel of the
existing Target store to allow an approximately 15,000 square foot grocery component
within the existing building envelope of the store. This is consistent with retail sales as
allowed by Carlsberg Specific Plan and the approved Commercial Planned
Development. The grocery component occupies approximately 12 percent of the total
store area. The plans show two rows of shelves and a small amount of refrigerated
space dedicated to alcohol sales, estimated at less than 10 percent of the grocery
component. Although the checkout stands are not proposed to be changed, a condition
has been added to require closed-circuit television cameras that provide monitoring
and recording of the sales counter to show employee/customer transactions, as well as,
the reach-in refrigerators and floor area. This is a typical condition for sales of alcohol
for off-site consumption.
GENERAL PLAN/ZONING
Direction General Plan Zoning Land Use
Carlsberg Specific Plan,
Site Specific Plan Sub-Regional Commercial/ Shopping Center
Business Park
North Light Industrial Planned Industrial
_ Industrial _ Development (IPD) _
Carlsberg Specific Plan,
South Specific Plan Sub-Regional Commercial/ Business Park
Business Park
East Freeway/ Freeway/Right-of-Way Freeway
Right-of-Way
Carlsberg Specific Plan,
West Specific Plan Sub-Regional Commercial/ Shopping Center
Business Park
General Plan and Zoning Consistency:
The General Plan Land Use Map and Zoning Map have designated the site for retail
uses as proposed. The Zoning Ordinance requires Planning Commission approval of a
Conditional Use Permit for the sale of beer, wine, and other alcoholic beverages for off-
site consumption. The Planning Commission is the final decision maker for this permit,
unless the decision is appealed to the City Council.
S:\Community Development\DEV PMTS\C U P\20112011-02 Target\Agenda Reperts\PC Agenda Report.docx
41
Honorable Planning Commission
May 24, 2011
Page 3
ANALYSIS
Issues
Staff analysis of the proposed project has identified control of the sale of alcoholic
beverages as the primary issue for Planning Commission consideration in their review
of the Conditional Use Permit application. Conditions are recommended by staff to
address security concerns associated with the sale of liquor, beer, and wine. These
conditions are consistent with those applied to other food markets in Moorpark with the
same sale of alcoholic beverages.
Concentration of Alcohol Permits: The applicant is currently possesses a Type 20
license with the California Department of Alcoholic Beverage Control (ABC) for sale of
beer and wine for off-site consumption, and is requesting to replace this with a "Type
21" license, to allow the sale of beer, wine, and distilled spirits for off-site consumption.
The ABC measures the number of businesses selling alcoholic beverages by census
tract, and compares this number to other census tracts in the area to determine whether
or not there is an over-concentration. If a census tract has an over-concentration,
findings of public necessity and convenience by the local agency, in this case the City of
Moorpark, are needed for the permit to be approved. In 2010, the census tracts for
Moorpark were amended to reflect local population changes. The ABC continues to use
the 2000 census tracts for their determination of concentration. Census Tract 76.04
(2000 Census), where the project is located, currently has 8 businesses selling beer
and wine or beer, wine, and distilled spirits for off-site consumption. This census tract is
a large census tract covering the eastern half of the city, including the Village at
Moorpark, Moorpark Marketplace, Varsity Park Plaza, and Campus Plaza shopping
centers, along with the commercial area along High Street. It currently has a healthy
mix of commercial land uses, which include a variety of stores, restaurants, auto repair
and other services. Although this proposal would change the license type, it does not
increase the total number of outlets conducting the sale of alcohol for off-site
consumption. In order for ABC to issue an alcohol license, the applicant must obtain a
conditional use permit, and subsequently the Community Development Department
must issue a letter of "Public Convenience and Necessity." Given that the primary use is
a discount department store with grocery sales (currently under construction),
contributing to the economic development of the city, this finding can be made for this
license and is included in the draft resolution for the Planning Commission's
consideration. A condition of approval is included that the display area for alcoholic
beverages not exceed 15% of the total display area used for grocery sales.
Except for loading and unloading operations, which are prohibited by the original
conditions of approval from being conducted between the hours of 10:00 p.m. and 6:00
a.m., there are no restrictions on hours of operation for this shopping center.
S:\Community Development\DEV PMTS\C U P\2011\2011-02 TargeMgenda Repods\PC Agenda Report docx
42
Honorable Planning Commission
May 24, 2011
Page 4
The applicant has indicated that the standard hours of operation will be from 8:00 a.m.
to 10:00 p.m., Monday through Saturday, and until 9:00 p.m. on Sunday. Since these
hours of operation may change due to market conditions and are extended for the
holiday season, staff added Condition No. 13, as follows: "Sales of alcoholic beverages
are permitted only between the hours of 7:00 a.m. to 12:00 a.m. (midnight) each day of
the week. This is consistent with the hours in which sales of alcoholic beverages are
allowed from the Smart and Final store at the Moorpark Marketplace.
Staff has discussed this case with Captain Ron Nelson of the Moorpark Police
Department. Captain Nelson indicated that this store has no record of problems with
their current sales of beer and wine, and that no additional conditions of approval would
be required over and above those that are standard.
Findings
A. The proposed use is consistent with the intent and provisions of the City's
General Plan, Zoning Ordinance, and other applicable regulations in that the sale
of beer, wine, and alcoholic beverages for off-site consumption is an ancillary use
to the approved food market, a use consistent with the General Plan and Zoning.
B. The proposed use is compatible with both existing and permitted land uses in the
area in that this is an approved food market where beer, wine and alcoholic
beverages typically are sold.
C. The proposed use is compatible with the scale, visual character, and design of
surrounding development in that the use does not require any significant
modifications to the exterior of the approved building.
D. The proposed use would not be obnoxious or harmful, or impair the utility of
neighboring property or uses in that conditions are required to ensure proper
control of the sale of beer, wine, and other alcoholic beverages.
E. The proposed use would not be detrimental to the public interest, health, safety,
convenience, or welfare in that conditions are required to ensure proper control
of the sale of beer, wine and other alcoholic beverages for off-site consumption.
F. The use will not result in a detrimental over-concentration of establishments
selling alcoholic beverages in the area, as these sales are ancillary to the sale of
other merchandise from this store.
G. The use will serve a public convenience in that the sale of beer, wine and other
alcoholic beverages for off-site consumption is an ancillary use to the primary
use of the building as a discount department store with grocery sales.
H. The use will not create the need for increased police services in that conditions
are required to ensure proper control of the sale of beer, wine, and other
alcoholic beverages for off-site consumption.
S.\Cammunity Development\DEV PMTS\C U P\2011\2011-02 TargetWgenda Reports\PC Agenda Report.docx
43
Honorable Planning Commission
May 24, 2011
Page 5
The requested use at the proposed location will not adversely affect the
economic welfare of the community.
J. The exterior appearance of the structure will not be inconsistent with the external
appearance of commercial structures already constructed or under construction
on surrounding properties, or within the immediate neighborhood so as to cause
blight, deterioration or substantially diminish property values within the
neighborhood.
PROCESSING TIME LIMITS
Time limits have been established for the processing of development projects under the
Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the
Subdivision Map Act (Government Code Title 7, Division 2), and the California
Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13,
and California Code of Regulations, Title 14, Chapter 3). Under the applicable
provisions of these regulations, the following timelines have been established for action
on this project:
Date Application Determined Complete: May 5, 2011
Planning Commission Action Deadline: August 3, 2011
ENVIRONMENTAL DETERMINATION
In accordance with the City's environmental review procedures adopted by resolution,
the Community Development Director determines the level of review necessary for a
project to comply with the California Environmental Quality Act (CEQA). Some projects
may be exempt from review based upon a specific category listed in CEQA. Other
projects may be exempt under a general rule that environmental review is not
necessary where it can be determined that there would be no possibility of significant
effect upon the environment. A project which does not qualify for an exemption requires
the preparation of an Initial Study to assess the level of potential environmental impacts.
Based upon the results of an Initial Study, the Director may determine that a project will
not have a significant effect upon the environment. In such a case, a Notice of Intent to
Adopt a Negative Declaration or a Mitigated Negative Declaration is prepared. For
many projects, a Negative Declaration or Mitigated Negative Declaration will prove to be
sufficient environmental documentation. If the Director determines that a project has
the potential for significant adverse impacts and adequate mitigation cannot be readily
identified, an Environmental Impact Report (EIR) is prepared.
The Director has reviewed this project and found it to qualify for a General Rule
Exemption in accordance with Section 15301 (Class 1: Existing Facilities) of California
Code of Regulations (CEQA Guidelines). No further environmental documentation is
required.
S:\Community Development\DEV PMTS\C D P\2011\2011-02 Target\Agenda Reports\PC Agenda Reporldocx
44
Honorable Planning Commission
May 24, 2011
Page 6
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close the public hearing.
2. Adopt Resolution No. PC-2011- , approving Conditional Use Permit No.
2011-02, subject to conditions.
ATTACHMENTS:
1. Location Map
2. Aerial Photograph
3. Project Exhibits (Under Separate Cover)
A. Site Plan
B. Floor Plan
4. Draft Resolution No. 2011- , with Conditions of Approval
S'.\Community Development\DEV PMTS\C U P\2011\2011-02 Target Agenda Reports\PC Agenda Report docx
45
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AERIAL PHOTOGRAPH
PC ATTACHMENT 2
1
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47
PROJECT EXHIBITS
A. Site Plan
B. Floor Plan
(UNDER SEPARATE COVER)
COPIES OF THE EXHIBITS ARE AVAILABLE
UPON REQUEST OF THE PROJECT PLANNER
PC ATTACHMENT 3
48
RESOLUTION NO. PC-2011-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF MOORPARK, CALIFORNIA, APPROVING
CONDITIONAL USE PERMIT NO. 2011-02, A REQUEST TO
ALLOW THE RETAIL SALE OF BEER, WINE, AND DISTILLED
SPIRITS FOR OFF-SITE CONSUMPTION, AT AN EXISTING
RETAIL ESTABLISHMENT, AT 800 LOS ANGELES AVENUE ON
THE APPLICATION OF BETH ABOULAFIA FOR TARGET
CORPORATION
WHEREAS, at a duly noticed public hearing held on May 24, 2011, the Planning
Commission considered Conditional Use Permit No. 2011-02 on the application of Beth
Aboulafia for the sale of beer, wine, and distilled spirits for off-site consumption at a
proposed Target store at 800 Los Angeles Avenue (Moorpark Marketplace); and
WHEREAS, at its meeting of May 24, 2011, the Planning Commission
considered the agenda reports and any supplements thereto and written public
comments; opened the public hearing and took and considered public testimony both
for and against the proposal, closed the public hearing, and reached a decision on this
matter; and
WHEREAS, the Planning Commission concurs with the Planning Director's
determination that this project is Categorically Exempt from the provisions of CEQA
pursuant to Section 15301 as a Class 1 exemption for Existing Facilities.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Findings: Based upon the information set forth in the staff report(s),
accompanying studies, and oral and written public testimony, the Planning Commission
makes the following findings in accordance with City of Moorpark, Municipal Code
Section 17.44.040:
A. The proposed use is consistent with the intent and provisions of the city's
General Plan, Zoning Ordinance, and other applicable regulations in that the sale
of beer, wine, and alcoholic beverages for off-site consumption is an ancillary use
to the approved food market, a use consistent with the General Plan and Zoning.
B. The proposed use is compatible with both existing and permitted land uses in the
area in that this is an approved food market where beer, wine and alcoholic
beverages typically are sold.
C. The proposed use is compatible with the scale, visual character, and design of
surrounding development in that the use does not require any significant
modifications to the exterior of the approved building.
PC ATTACHMENT 4
49
Resolution No. PC-2011-
Page 2
D. The proposed use would not be obnoxious or harmful, or impair the utility of
neighboring property or uses in that conditions are required to ensure proper
control of the sale of beer, wine, and other alcoholic beverages.
E. The proposed use would not be detrimental to the public interest, health, safety,
convenience, or welfare in that conditions are required to ensure proper control
of the sale of beer, wine and other alcoholic beverages for off-site consumption.
F. The use will not result in a detrimental over-concentration of establishments
selling alcoholic beverages in the area, as these sales are ancillary to the sale of
other merchandise from this store.
G. The use will serve a public convenience in that the sale of beer, wine and other
alcoholic beverages for off-site consumption is an ancillary use to the primary
use of the building as a discount department store with grocery sales.
H. The use will not create the need for increased police services in that conditions
are required to ensure proper control of the sale of beer, wine, and other
alcoholic beverages for off-site consumption.
The requested use at the proposed location will not adversely affect the
economic welfare of the community.
J. The exterior appearance of the structure will not be inconsistent with the external
appearance of commercial structures already constructed or under construction
• on surrounding properties, or within the immediate neighborhood so as to cause
blight, deterioration or substantially diminish property values within the
neighborhood.
SECTION 2. PLANNING COMMISSION APPROVAL: The Planning Commission
hereby APPROVE Conditional Use Permit No. 2011-02 subject to the Conditions of
Approval included in Exhibit A (Conditions of Approval), attached hereto and
incorporated herein by reference.
SECTION 3. FILING OF RESOLUTION: The Planning Director shall cause a
certified resolution to be filed in the book of original resolutions.
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The action of the foregoing direction was approved by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
PASSED, AND ADOPTED this 24th day of May, 2011.
Kipp Landis, Chair
David A. Bobardt, Community Development Director
Attachment:
Exhibit A— Conditions of Approval for Conditional Use Permit No. 2011-02
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EXHIBIT A
STANDARD AND SPECIAL CONDITIONS OF APPROVAL
FOR CONDITIONAL USE PERMIT (CUP) No. 2011-02
STANDARD CONDITIONS OF APPROVAL
The applicant shall comply with Standard Conditions of Approval for Conditional Use
Permits as adopted by City Council Resolution No. 2009-2799 (Exhibit B), except as
modified by the following Special Conditions of Approval. In the event of conflict
between a Standard and Special Condition of Approval, the Special Condition shall
apply.
SPECIAL CONDITIONS
PLEASE CONTACT THE COMMUNITY DEVELOPMENT DEPARTMENT FOR
QUESTIONS REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS
1. The Conditions of Approval of this permit, City of Moorpark Municipal Code and
adopted city policies at the time of the permit approval supersede all conflicting
notations, specifications, dimensions, typical sections and the like which may be
shown on plans.
2. Conditions of this entitlement may not be interpreted as permitting or requiring
any violation of law or any unlawful rules or regulations or orders of an authorized
governmental agency.
3. The applicant shall defend, indemnify and hold harmless the City and its agents,
officers and employees from any claim, action or proceeding against the City or
its agents, officers or employees to attack, set aside, void, or annul any approval
by the City or any of its agencies, departments, commissions, agents, officers, or
employees concerning the permit, which claim, action or proceeding is brought
within the time period provided therefore in Government Code Section 66499.37.
The City will promptly notify the applicant of any such claim, action or
proceeding, and if the City should fail to do so or should fail to cooperate fully in
the defense, the applicant shall not thereafter be responsible to defend,
indemnify and hold harmless the City or its agents, officers and employees
pursuant to this condition.
a. The City may, within its unlimited discretion, participate in the defense of
any such claim, action or proceeding, if both of the following occur:
i. The City bears its own attorney fees and costs;
ii. The City defends the claim, action or proceeding in good faith.
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b. The applicant shall not be required to pay or perform any settlement of such
claim, action or proceeding unless the settlement is approved by the
applicant. The applicant's obligations under this condition shall apply
regardless of whether a building permit is ultimately obtained, or final
occupancy is ultimately granted with respect to the permit.
4. If any of the conditions or limitations of this approval are held to be invalid, that
holding shall not invalidate any of the remaining conditions or limitations set forth.
5. The development must be in substantial conformance with the plans presented in
conjunction with the application for Conditional Use Permit No. 2011-02, except
any modifications as may be required to meet specific Code standards or other
conditions stipulated herein. All Conditions of Approval and requirements of
Commercial Planned Development Permit No. 2001-01, as amended, shall
continue to apply unless specifically modified by this Conditional Use Permit.
Display of alcoholic beverages for sale may not exceed fifteen (15) percent of the
display area for groceries.
6. Administrative Permit No. 2004-01 is terminated upon the issuance of a Type 21
license associated with Conditional Use Permit No. 2011-02.
7. All necessary permits must be obtained from the Building and Safety Department
and all construction shall be in compliance with the Moorpark Building Code and
all other applicable regulations.
8. Approval of a Zoning Clearance is required prior to the issuance of building
permits. All other permit and fee requirements must be met.
9. The applicant shall reimburse the City of Moorpark for any additional police or
other costs incurred by the City as a result of operations approved by this
Conditional Use Permit, including fifteen (15%) percent overhead on any such
services.
10. No person under the age of eighteen (18) shall sell packaged alcoholic
beverages.
11. All exterior areas of the site, including parking areas under use by the facility,
shall be maintained free of litter and debris at all times.
12. Conditional Use Permit No. 2011-02 may be revoked or its use suspended by the
City, if any of the causes listed in Section 17.44.080.B of the Zoning Code are
found to apply, including if the use for which the permit was granted has not been
exercised for at least twelve (12) consecutive months, has ceased to exist, or has
been abandoned. The discontinuance for a period of one hundred eighty (180) or
more days of a nonconforming use or a change of nonconforming use to a
conforming use constitutes abandonment and termination of the nonconforming
status of the use.
13. The City of Moorpark reserves the right to modify, suspend or revoke for cause
this conditional use permit consistent with Chapter 17.44 of the Moorpark
Municipal Code or as may be amended in the future.
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14. Sales of alcoholic beverages are permitted only between the hours of 7:00 a.m.
to 12:00 a.m. (Midnight) each day of the week.
15. Areas inside the establishment open to customers must be illuminated sufficiently
to allow the identification of persons.
16. The applicant or his/her designee shall be responsible to police the exterior of the
business to assure that no alcoholic beverages are consumed within the parking
lot. The applicant shall not permit any loitering in the parking lot or in areas
adjacent to the facility.
17. No exterior advertising of any kind or type is allowed promoting or indicating the
availability of alcoholic beverages. Interior displays of beer or wine that are
clearly visible to the exterior shall constitute a violation of this condition.
18. The permittee must correct any safety or security problem within thirty (30) days
upon written notice of such a problem from the Moorpark Police Department.
19. Closed-circuit television cameras shall provide monitoring and recording of the
sales counter to show employee/customer transactions, as well as, the reach-in
refrigerators and floor area. This system should have the capability to record 24
hours. This system shall be protected from access by employees and customers.
20. Any and all employees directly involved or supervising the sale of alcoholic
beverages shall provide evidence and the business shall maintain records that
employees have:
a. Received training from the State of California Department of Alcoholic
Beverage Control "Leadership and Education in Alcohol and Drugs" LEAD
program in the form of an ABC issued certificate.
b. The Owner/Manager shall confirm with the California Department of
Alcoholic Beverage Control within fifteen (15) days of hire any new
employee has been scheduled with the local (Santa Barbara ABC office)
to attend the LEAD program course. Alternatively, this course attendance
requirement may be met through a LEAD certified agency or company
approved by the State of California.
-End-
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ITEM: 10.A.
MINUTES OF THE PLANNING COMMISSION
Moorpark, California May 3, 2011
A Special Meeting of the Planning Commission of the City of Moorpark was held on May
3, 2011, in the Council Chambers of said City located at 799 Moorpark Avenue,
Moorpark, California.
1. CALL TO ORDER:
Chair Landis called the meeting to order at 7:05 p.m.
2. PLEDGE OF ALLEGIANCE:
Vice Chair Di Cecco led the Pledge of Allegiance.
3. ROLL CALL:
Present: Planning Commissioners Gould, Groff, Ramous, Vice Chair
Di Cecco, and Chair Landis.
Staff Present: David Bobardt, Planning Director; Joseph Fiss, Principal
Planner; Dave Klotzle, City Engineer/Public Works Director;
Ron Nelson, Captain Moorpark Police Department; and
Joyce Figueroa, Administrative Assistant.
4. PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS:
None.
5. PUBLIC COMMENT:
None.
6. REORDERING OF, AND ADDITIONS TO, THE AGENDA:
None.
7. ANNOUNCEMENTS, FUTURE AGENDA ITEMS AND REPORTS ON
MEETINGS/CONFERENCES ATTENDED BY THE COMMISSION:
(Future agenda items are tentative and are subject to rescheduling.)
None.
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Minutes of the Planning Commission
Moorpark, California Paget Mav 3, 2011
8. PUBLIC HEARINGS: (next Resolution No. PC-2010-563)
A. Consider Resolution Recommending to the City Council Adoption of a
Mitigated Negative Declaration, Approval of General Plan Amendment No.
2009-01, Zone Change No. 2009-01, Industrial Planned Development No.
2009-01, Conditional Use Permit No. 2009-01, and Development
Agreement No. 2009-02 between City of Moorpark and Los Angeles
Avenue LLC to Allow a Motion Picture Studio Complex With 12
Soundstages, Support Buildings, and Surface Parking on a 44.467 Acre
Site Located on the North Side of Los Angeles Avenue, West of Gabbed
Road, on the Application of Triliad Development, Inc. for Los Angeles
Avenue LLC. Staff Recommendation: 1) Open the public hearing, accept
public testimony and close the public hearing; 2) Adopt Resolution No.
PC-2011-563 recommending to the City Council adoption of a Mitigated
Negative Declaration, approval of General Plan Amendment No. 2009-01,
Zone Change No. 2009-01, Industrial Planned Development No. 2009-01,
Conditional Use Permit No. 2009-01, and Development Agreement No.
2009-02. (Staff: Joseph Fiss)
Mr. Bobardt made editorial corrections to the Site Drainage and
Stormwater Quality on stamped page 10 of the agenda report to delete
"detention" from the eighth sentence and correct it to read "conveyance"
and delete "hydrologic" from the ninth sentence and correct it to read
"hydraulic."
Mr. Fiss gave the staff report.
Mr. Bobardt discussed sections 6 and 7 of the Development Agreement.
Mr. Bobardt stated he had received a letter from a Poppy Glen Court
resident that expressed concern regarding traffic issues and also received
a letter from Ventura Local Agency Formation Commission (LafCo)
regarding the issue whether the project requires an amendment to the
curb line in the City's SOAR Ordinance.
A discussion followed among Commissioners and staff regarding: 1)
Development Agreement regarding the landowners; 2) 118 Expansion
how it's affected by SOAR; 3) The potential to adjust the alignment of Los
Angeles Avenue; 4) How far down to the west is the potential truck scale
to this project and has the site been identified; 5) Parking regulation plan;
6) Ingress and egress from the Buttercreek development and how it is
going to be affected in the future by this project; 7) MND project site
extents; 8) Access to the project site for trucks and other vehicles entering
the site; 9) Emergency gate; 10) Signalization at North Hills Parkway;
11) Whether Mira Sol have a westbound turn lane; 12) Stormwater
purification at the site; 13) Whether the open water run off that goes to the
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east side of project and the south side of the project remain open; 14)
Whether the Los Angeles Avenue telephone poles will go underground;
15) Traffic and circulation peak hour trips; 16) By widening the road, this
mitigate the traffic; 17) Lighting plan; 18) North Hills parkway initial access;
19) The developer's participation in North Hills Parkway assessment
district improvement costs; 20) Security for the northbound North Hills
Parkway improvements; 21) Number of daily trips on Los Angeles Avenue;
22) The City's protection if the applicant defaults and whether anything
built wherein they have to bond the project; and 23) Mitigation/Circulation
issues regarding signalization.
AT THIS POINT in the meeting, a recess was declared. The time was 7:58 p.m.
The Planning Commission meeting reconvened with continued discussion of Item 8.A.at
8:03 p.m. with. Chair Landis absent. Vice Chair Di Cecco chaired the meeting.
Vice Chair Di Cecco opened the public hearing.
Valerie Draeger, Triliad Development Inc., discussed the project and
presented an animation video.
Brian Poliquin, AIA, PK Architecture, discussed the architectural design of
the project; landscape, lighting, security fencing, and water conservation.
The following issues were discussed by the Commission and Mr. Poliquin:
1) Financing in place for Phase I; 2) Parking; 3) How the remote site
is going to be secured; 4) Puffing a parking structure on North Hills
parkway; 5) Phasing plan; 6) Security Fence on Union Pacific Railroad
wall; and 7) Graffiti.
Weston Munselle, Munselle Inc., Consultant discussed the operation of
the project and stated that studio facilities make good neighbors.
The following issues were discussed by the Commission and Mr.
Munselle: 1) Southeast entrance for trucks and the size of trucks; and 2)
Whether there will be motorhomes at the site for anticipated shoots.
Jonas Smith, Pacific Advance Civil Engineering, discussed the National
Pollutant Discharge Elimination System (NPDES) stormwater
detention/retention system and the flood plain verses where the parking
should go.
Joe Gibson, Impact Sciences, discussed the water and waste water
comments raised in the letter of May 3, 2011 from Ventura Local Agency
Formation Commission (LafCo).
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Harvey Plaks, Mira Sol resident, residing adjacent to the site, stated he is
not opposed to the project, however, expressed concerns regarding traffic;
noise level; heavy trucks; vibration; decibel rates; and suggested that a
sign be posted that reads No Jake Braking.'
Francis Okyere, Western Alliance Insurance, specializing in entertainment
insurance, spoke in favor of the project.
Raymond Hebei, Hollyglen Court resident, residing adjacent to the site
spoke in opposition of the project and expressed concerns regarding:
semi-truck decibel levels; vibration; and the need to provide a sound wall
on Los Angeles Avenue.
Elaine Penprase, Buttercreek resident, residing adjacent to the site spoke
in opposition of the project and expressed concerns regarding noise,
glare, light, aesthetics, and traffic.
Jim McGrath, J.D. McGrath Farms Davis Ranch, residing adjacent to the
site welcomes the studio and stated that he would like the project to have
a fence installed that would run along the south side of the railroad, and
expressed concern about there not being a pedestrian fence along the
channel, and the amount of theft of his crops and graffiti.
Mark Taillon, Aspen Hills Drive resident, residing adjacent to the site
spoke in favor of the project and that is a great economic benefit to the
city.
Patrick Ellis, Moorpark Chamber of Commerce, spoke in favor of the
project and that it would rejuvenate the economy of Moorpark, bring jobs
to the community, and would benefit the community on an overall basis.
Scott Gould, Holly Glen Court resident, residing adjacent to the site spoke
in opposition of the project and expressed concerns regarding traffic,
vibration, noise, and placement of the traffic light.
Linda Plaks, Mira Sol resident, residing adjacent to the site spoke in favor
of the project and thanked the applicant for having meetings to discuss the
project and mitigate problems. If noise can be taken care of, the project
has an A+for what it can do for the community of Moorpark.
Sue Lang, Holly Glen Court resident, residing adjacent to the site spoke in
opposition of the project and expressed concerns regarding traffic, left
hand turn to Buttercreek, property values going down, truck deliveries,
filming hours, special effects, construction noise, lighting, number of
employees, amount of parking, and crime rate.
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Bill Brinkmeyer, IBEW Local 40, spoke in favor of the project and asked
the Commission to consider the project.
In response to Vice Chair Di Cecco, Mr. Bobardt summarized three
Written Statement cards in favor of the proposal and one neither in favor
or opposition of the proposal.
At the request of Vice Chair Di Cecco, Bob Matson, RBF Consulting,
stepped forward to the lectern and responded to questions from the
Commission regarding: traffic, stacking with trucks waiting at the signal at
North Hills Parkway, stacking back towards Buttercreek, and noise
reduction with rubberized asphalt.
At the request of Vice Chair Di Cecco, Mr. Gibson, Impact Sciences,
stepped forward to the lectern and responded to questions from the
Commission regarding sound walls, paving surface, rubberized asphalt,
truck noise, and growth of traffic.
AT THIS POINT in the meeting Chair Landis returned to the dais at 9:46 p.m.
The following issues were discussed by the Commission and Mr. Gibson:
1) Deceleration of trucks; 2) Potential decrease in noise level based on the
fact that the trucks are not going to be accelerating or decelerating with
the new traffic signals and increase of capacity of the new traffic lanes; 3)
Potential for sound walls; and 4) Study regarding decibel levels.
In response to the Commission, Mr. Bobardt discussed whether Caltrans
would be responsible for the sound wall since this is already an
unacceptable level of noise.
Mr. Bobardt summarized one additional Written Statement card,
expressing neutrality on the project.
Chair Landis closed the public hearing.
The following issues were discussed by the Commission and staff: 1)
Lighting; 2) Noise; 3) Staging for trucks; 4) Sound wall issues; 5)
Concerns addressed by Mr. Grath regarding fencing along the back wall
by the railroad tracks; 6) Truck vibration; 7) Widening of Los Angeles
Avenue; 8) Amount of land the project is taking for parking; 9) Alternative
for a parking structure; 10) Pedestrian walk ways; and 11) Safety.
The Commission commended the applicant and staff in doing an excellent
job in the presentation of the project and stated this is a positive impact for
Moorpark and will provide economic benefits to the community.
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MOTION: Vice Chair Di Cecco moved and Commissioner Gould seconded a
motion to approve staff recommendation, including adoption of Resolution No.
PC 2011-563. The motion carried by roll call vote 4-0, Chair Landis Abstaining.
The City Council has final approval authority for this project.
9. DISCUSSION ITEMS:
None.
10. CONSENT CALENDAR:
MOTION: Commissioner Gould and Vice Chair Di Cecco seconded a motion to
approve the Consent Calendar. The motion carried by unanimous voice vote.
A. Consider Approval of the Regular Meeting Minutes of March 22, 2011.
Staff Recommendation: Approve the minutes.
B. Consider Approval of the Minutes of the Joint Meeting of the City Council
and Planning Commission Meeting of March 29, 2011. Staff
Recommendation: Approve the minutes.
11. ADJOURNMENT:
MOTION: Commissioner Hamous moved and Commissioner Groff seconded a
motion to adjourn. The motion carried by unanimous voice vote. The time was
10:24 p.m.
Kipp Landis, Chair
David A. Bobardt, Community Development Director
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