Local Business

Despite Being Defeated with Tie Vote, Appeal that Cost Neighborhood $2K Heads Back to the Planning Commission

The Appeal of the Planning Commission’s approval of the Provecho Market gas station at 312 N Euclid St cost the neighborhood opposing the gas station $2,000.

On October 17, the Mayor motioned to deny the appeal, ending in a tie vote as Councilmember Dunlap was absent. In a letter to the City from the law office of Christopher Sutton, representing Leland Wilson, a resident and appellant of the Planning Commission decision, stated that under Fullerton Zoning Code section 15.70.060.D.4 a tie vote operated as a defeat and rejection of the proposed Conditional Use Permit and Major Site Plan at 312 N Euclid St. The matter should have ended there. However, the City Attorney wrongly stated that a tie vote would mean that a continuance was required. Based on this false and incorrect advice, the City Council voted to continue the matter to Oct 17, 2023, and then at that meeting to continue the matter to Nov 7, 2023. Both continuances were based on erroneous legal advice directly contradicting the text of Section 15.70.060.D.4. A specific vote is required to set aside a tie vote. Both continuance votes were void acts contrary to the specific code section.

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In other correspondence from public records.

• Email from Wade Shuey to Eduardo Cardera, a senior planner at the City, on Oct 12, 2022, that stated:

We were there today looking at the possibility of putting together our gas station component for the Provecho Market. We had taken the design review that we had last year and applied it to this set of plans that you now have in front of you on your desk. We dropped it off with your planning director after meeting with the mayor. We are submitting this to you guys for the CUP process for the gas station. So, the main key we did on this plan was to ensure that we addressed the landscaping that you wanted on the last site plan review and that the comments for the other departments were addressed as well. We feel that. This time, we have enough to get this ball rolling. Please let me know if you have any feedback, as we would like to finish this project and complete the task we set out to do last year.

• Email to Ralph Kim, owner of Provecho Market from Eduardo Cardera, a senior planner at the City on Oct 26, 2022, at 11:03 am that stated:

I reviewed plans and unfortunately the proposal does not meet key standards for a service station. The Zoning Code requires that a gas station be located at the intersection of two arterial-width highways or the intersection of a freeway or flood control channel abutting a freeway. So, this is a non-starter. Additionally, a variance would not be possible as the location is in close proximity to residential, and staff would be unable to make the findings. Let me know if you have any questions.

•At 11:10 am, Ralph Kim, the owner of Provecho Market, emailed Mayor Fred Jung about a gas station, and then, at 3:35 pm, from Mayor Jung to City Manager Eric Levitt on Oct 26, 2022, asking him to look into the gas station proposal.

A year later, despite not meeting any of the criteria, the gas station went before the Planning Commission.

• This email was sent on Oct 2, 2023, to City of Fullerton City Council Members:

This letter supports the proposed appeal of the recent Planning Commission approval of a CUP and Major Site Plan to construct an automobile fueling station at 312 N Euclid. I reside at 332 N Woods, just approximately 1000′ from the proposed project, thus not within the 300′ notification radius.

As a resident of Fullerton for nearly 30 years and a licensed California architect for nearly the same duration, I am very familiar with working within the “intent” of the code and working “around” the code. This project appears to be working “around” the code as trying to justify a new Service Station by using an FMC code section that does not apply to this project. The Planning Commission approval was based upon FMC 15 30.040 Section D.l, which allows, through a CUP, for a Service Station with the C-G Zone if it is tied to an accessory use, such as a Department Store.

This “exception” was used since the baseline approval of abutting the appropriate types of roadway is not achievable (it is adjacent to Euclid and “little” Chapman Ave, a residential street). Service station and car wash locations: Service station and car wash sites shall be located at the intersection of two arterial-width highways or the intersection of a freeway or flood-control channel abutting a freeway and an arterial-width highway unless the service station or car wash is an accessory use and an integral part of the operation of a department store membership warehouse, hotel or other similar facility. The above exception certainly works well for a business similar to Costco. However, the existing Market (Provecho Market) is not a department store as it does not sell mercantile or other durable goods that qualify it as such.

This is further substantiated by the applicant’s reference to the project as a”Market Gas Station” with another reference to the previous occupancy by CVS. The current use is not a CVS; it is a market that sells groceries. The current Certificate of Occupancy for the recent Tenant Improvement could not be found within the City’s digital records. However, even if there is a reference to the C of Occ, a “department store,” this would be erroneous regarding the building’s current use. If Provecho Market wants to be considered a “Department Store,” it should operate in that capacity.

Aside from the challenging applicability of FMC 15.30.040, this project has numerous other issues:

1. As a minimum, traffic, air, and noise studies should be provided as typical for an EIS for a project of this type. I understand that a categorical exemption under CEQA 15303, as noted in the CUP, could be considered. However, this project is directly adjacent to a residential area, has fuel truck deliveries exiting onto a sub-standard residential street, and already has a debatable allowance under a “department store” accessory use. Any one of these items should warrant additional studies.

2. The CUP notes that the Service Station will not include any service station workers, with help only from the existing Grocery Store personnel located hundreds of feet away. This presents a true challenge for those customers who have accessibility issues and require assistance, not to mention the exclusion of any customers who may want to use cash for their transactions. I imagine that the City does not want a Service Station with such exclusions.

3. Per the CUP, the Service Station is tied to the existing Market hours and, thus, also to the existence of the Market itself. The financial viability of the Market should be reviewed to ensure that the neighborhood is not left with a vacant service station in the future. As you may be aware, removing a Service Station, especially USTs (underground storage tanks), is not an easy environmental process. 4. If the Service Station is approved, further consideration should be taken to its placement to ensure optimal circulation, especially for fire apparatus and fuel truck access. The current layout has challenges in this regard. The fuel truck exit onto “little” Chapman will also present stacking issues during busy peak hours, not to mention the deterioration of the already compromised pavement section at this location (as in common throughout the surrounding area). I assume the “little” Chapman traffic index does not consider an articulated fuel truck.

Dan Bianco, AIA, LEED AP BD+C, NCARB CA Architect Fullerton

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