06 ATTACHMENT 5 - Laserfiche WebLink

Mr. Jonathan Lowell, City Attorney 12/31/2012 Page 3 code does allow the zoning administrator to approve, "minor revisions or modifications" to an existing conditional use permit so long as they would not affect the required findings. (PMC §18.124.120.) In this case, however, because the modifications involved a significant expansion of business uses in a residential area and outdoor activities directly adjacent to adjoining residences, the findings for the existing use permit were inadequate to cover those changes. Instead, the Mason's letter should have been considered as an application for either a use permit modification or a variance and processed pursuant to the City's normal public hearing and notice requirements. (PMC §§ 18.124.040; 18.132.060; 18.12.040.) Because the authorization for the commercial uses under the Mason's CUP was improperly granted, it is void. (PMC §18.12.010.) For all these reasons, the businesses are not appropriately covered by the Mason's use permit. The Commercial Activities do not Qualify as Accessory Uses. Finally, even if the catering business and the banquet facilities rental business were being run by the Masons themselves (and there is no evidence from the Mason's tax retums that they receive revenue from the banquet facility rental business either), they do not qualify as "accessory uses" entitled to operate under the Masons' use permit. An accessory use is defined in the zoning ordinance as follows, "Accessory use means a use which is appropriate, subordinate and customarily incidental to the main use of the site and which is located on the same site as the main use. (PMC §18.08.595 [emphasis added].) As noted earlier, the Masons had previously applied for and been granted amendments to their use permit to allow food preparation and catering services for on -site Masonic events. Those amendments were at least arguably appropriate, considering the food service as an accessory use to the Mason's primary use of the facility for Masonic events. The more recent 2005 informal amendment to the use permit, however, presents a very different situation. According to the tax returns filed by the Masons and the holding company, the revenue from the catering business and the commercial banquet facility is between twice and four times the revenue the Masons derive from their own members' dues. In terms of use of the facilities, according to my clients, the Masons appear to have lodge meetings twice a month and one weekly "degree practice ". The total time involved averages roughly two hours per week. By comparison, the catering business appears to run practically full -time (40 hours per week, and involving an estimated 4-6 employees). The banquet facilities rental business appears to involve two part-time employees working roughly ten hours per week, and rents out the building for approximately two hours per week. Thus the Masons apparently use the facility roughly two hours a week, the catering business, 40 hours per week, and the banquet facilities rental business, twelve hours per week. In other words, the Masons' use of the facilities amounts to about 2/54, or approximately four percent of the total facilities use. One must question whether the commercial uses, at 96% of total use, are appropriate or subordinate for a fraternal organization. By the same token, one must question whether, both in terms of income and use of facilities, the commercial activities are "customarily incidental" to the Masons' use of the site as a fratemal organization. There is California case law that is relevant to this question. The case is Scottish Rite Cathedral Assn. of Los Angeles v. City of Los Angeles (2007) 156 Cal.App.4th 108. There, as here, a Masonic group sought, and was granted, permission to conduct its restricted to the south side of the building, with no building openings on its north side. In addition the Planning Commission added a condition requiring an effective buffer between the development and the single family residential area surrounding the property, specifically to safeguard the residences from the facility. The changes to the building and its uses violate these conditions and their intent.