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06 ATTACHMENT 5
City of Pleasanton
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06 ATTACHMENT 5
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11/30/2016 1:07:49 PM
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CITY CLERK
CITY CLERK - TYPE
AGENDA REPORT
DOCUMENT DATE
9/20/2016
DESTRUCT DATE
15Y
DOCUMENT NO
06
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06
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Mr. Jonathan Lowell, City Attorney <br />12/31/2012 <br />Page 3 <br />code does allow the zoning administrator to approve, "minor revisions or modifications" <br />to an existing conditional use permit so long as they would not affect the required <br />findings. (PMC §18.124.120.) In this case, however, because the modifications <br />involved a significant expansion of business uses in a residential area and outdoor <br />activities directly adjacent to adjoining residences, the findings for the existing use <br />permit were inadequate to cover those changes. Instead, the Mason's letter should <br />have been considered as an application for either a use permit modification or a <br />variance and processed pursuant to the City's normal public hearing and notice <br />requirements. (PMC §§ 18.124.040; 18.132.060; 18.12.040.) Because the <br />authorization for the commercial uses under the Mason's CUP was improperly granted, <br />it is void. (PMC §18.12.010.) For all these reasons, the businesses are not <br />appropriately covered by the Mason's use permit. <br />The Commercial Activities do not Qualify as Accessory Uses. <br />Finally, even if the catering business and the banquet facilities rental business <br />were being run by the Masons themselves (and there is no evidence from the Mason's <br />tax returns that they receive revenue from the banquet facility rental business either), <br />they do not qualify as "accessory uses" entitled to operate under the Masons' use <br />permit. An accessory use is defined in the zoning ordinance as follows, "Accessory use <br />means a use which is appropriate, subordinate and customarily incidental to the <br />main use of the site and which is located on the same site as the main use. (PMC <br />§18.08.595 [emphasis added].) As noted earlier, the Masons had previously applied for <br />and been granted amendments to their use permit to allow food preparation and <br />catering services for on -site Masonic events. Those amendments were at least <br />arguably appropriate, considering the food service as an accessory use to the Mason's <br />primary use of the facility for Masonic events. The more recent 2005 informal <br />amendment to the use permit, however, presents a very different situation. <br />According to the tax returns filed by the Masons and the holding company, the <br />revenue from the catering business and the commercial banquet facility is between <br />twice and four times the revenue the Masons derive from their own members' dues. in <br />terms of use of the facilities, according to my clients, the Masons appear to have lodge <br />meetings twice a month and one weekly "degree practice ". The total time involved <br />averages roughly two hours per week. By comparison, the catering business appears <br />to run practically full -time (40 hours per week, and involving an estimated 4 -6 <br />employees). The banquet facilities rental business appears to involve two part-time <br />employees working roughly ten hours per week, and rents out the building for <br />approximately two hours per week. Thus the Masons apparently use the facility roughly <br />two hours a week, the catering business, 40 hours per week, and the banquet facilities <br />rental business, twelve hours per week. In other words, the Masons' use of the facilities <br />amounts to about 2/54, or approximately four percent of the total facilities use. One <br />must question whether the commercial uses, at 96% of total use, are appropriate or <br />subordinate for a fraternal organization. By the same token, one must question <br />whether, both in terms of income and use of facilities, the commercial activities are <br />"customarily incidental" to the Masons' use of the site as a fraternal organization. <br />There is California case law that is relevant to this question. The case is Scottish <br />Rite Cathedral Assn. of Los Angeles v. City of Los Angeles (2007) 156 Cal.App.4th 108. <br />There, as here, a Masonic group sought, and was granted, permission to conduct its <br />restricted to the south side of the building, with no building openings on its north side. In addition the <br />Planning Commission added a condition requiring an effective buffer between the development and the <br />sin9Ie family residential area surrounding the property, specifically to safeguard the residences from the <br />facility. The changes to the building and its uses violate these conditions and their intent. <br />
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