Loading...
Resolution - 6575RESOLUTION NO. 6575 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, REVOKING A DANCE FACILITY PERMIT AND ADOPTING FINDINGS IN SUPPORT THEREOF (Unclassified Use Permit No. 237--Drew Patrick McConaughy) THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, DOES RESOLVE AS FOLLOWS: SECTION 1. The City Council finds and determines that: 1. On May 5, 1982, the Planning Commission adopted Resolu- tion No 5-82-3156, revoking Unclassified Use Permit No. 237 and adopting findings in support thereof, so as to prohibit dancing for the restaurant known as McC's Spaghetti Bender located at 313 Azusa Avenue, West Covina; 2. On May 23, 1982, Drew Patrick McConaughy, the operator of McC's Spaghetti Bender, hereinafter referred to as Applicant, appealed the decision of the Planning Commission; 3. The administrative record of the Planning Commission action and the City Council hearing procedures were transmitted to the Applicant on June 10, 1982, and to the City Council on June 11, 1982; 4. On June 23, 1982, the City Council conducted a duly noticed public hearing; and • 5. During the course of the public hearing, the City Council heard argument to the administrative record on the issues of the violation and the revocation of Unclassified Use Permit No. 237 and considered new evidence on.the issue of revocation provided that said evidence related to acts or events that occurred after the close of the public hearing before the Planning Commission on April 29, 1982, and was relevant to the issue of revocation. SECTION 2. During the course of the public hearing on the appeal, the City Council overruled objections by the Applicant, including but not limited to the following: 1. That the Applicant on appeal is entitle to a hearing de novo. Said objection was overruled on the grounds that there was no substantial direct evidence to support Applicant's allegation that the Assistant City Attorney had represented to Applicant's counsel prior to the Planning Commission hearing that an appeal to the City Council would be a hearing de novo; the Declaration of Eugene A. Demchuk was not made under penalty of perjury and was not dated, but that there was direct sworn testimony by the Assistant City Attorney to refute said allegation and, furthermore, that there was no substantial direct evidence to support Applicant's allegation that he had been prejudiced by the City Council hearing procedures; 2. That heresay testimony in an administrative hearing is inadmissible. Said objection was overruled on the grounds that such testimony may be admitted and considered for the purpose of supplementing or explaining other evidence. 3. That the Applicant would be prejudiced by denial of the right to orally cross-examine witnesses. Said objection was over- ruled on the grounds that both the Planning Commission and City Council hearing procedures provide for the Applicant or his legal representative to orally cross-examine witnesses by posing questions through the Chair; -1- 4. That the Applicant is prejudiced because.the City Council hearing limited members of the public and representatives of interested groups, as well as City staff, in the presentation of new evidence to evidence that rebuts evidence presented by the Appli= cant. Said objection was overruled on the grounds that the matter before the City Council is an appeal by the Applicant and not a hearing de novo; 5. That new evidence should be permitted on the issue of violation as well as the issue of revocation. Said objection was overruled on the grounds that the matter was heard by the Planning Commission on the allegation that there had been violations of Unclassified Use .Permit No. 237, at which hearing the Applicant had the opportunity to present evidence in rebuttal of such allega- tions, but that the Applicant may have undertaken remedial actions after the close of the Planning Commission action to cure the violations, which remedial actions would be relevant to the issue of revocation of the Unclassified Use Permit; 6. That an administrative subpoena should be issued to compel the appearance of Chester Yoshisaki. Said objection was overruled on the grounds that the offer of proof made by the Applicant's legal counsel established that the purpose for calling Mr. Yoshisaki as a witness would be to introduce new evidence not admissible under the City Council appeal procedures. SECTION 3. Based upon the administrative record of the Planning Commission action and the argument presented before the City Council at the public hearing on the appeal, the City.Council finds that there is substantial direct evidence to support and sustain the findings and decision of the Planning Commission that the Applicant had violated the findings and conditions of Unclass- ified Use Permit No. 237. Furthermore the City Council finds that • the argument presented by the Applicant on appeal didnot provide a substantial basis upon which to reverse the determination of the Planning Commission finding violations of the findings and conditions of the Unclassified Use Permit. The City Council hereby adopts by reference the findings of fact and the conclusions made by the Planning Commission relative to the issue of violation, as set forth in Planning Commission Resolution No. 5-82-3156, and further finds that the violations of the Unclassified Use Permit are injurious to the health, safety and welfare and are an obstruction to the use of surrounding single-family residential.properties for residential purposes so as to interfere with the enjoyment of life and property by residents in the surrounding neighborhood. SECTION 4.. Based upon the administrative record of the Planning Commission action and the argument and new evidence, both documentary and oral, presented to the City Council at the public hearing on the appeal, the City Council finds that there is sub- stantial direct evidence to support and sustain the determination of the Planning Commission that no action short of revocation would adequately remedy the violations. Furthermore, the City Council finds that no argument or substantial direct evidence was offered by the Applicant to provide a substantial basis for reversing the determination of the Planning Commission relative to revocation. The City Council hereby adopts by reference the findings of facts and the conclusionsmade by the Planning Commission relative to the issue of revocation, as set forth in Planning Commission Resolution No. 5-82-3156, with one correction, to wit, that "The applicant. . . (4) Restrict the egress to Workman Avenue after approximately '1:00 A.M.'"by parking a car across this access point". -2- a SECTION 5. Based upon the above findings, the City Council does hereby determine and declare that the findings and conditions of Unclassified Use Per= mit No. 237 have been violated and that there is a compelling public necessity warranting the revocation of Unclassified Use Permit No. 237 so as to prohibit dancing at the restaurant known as McC's Spaghetti Bender located at 313 Azusa Avenue, West Covina. Furthermore, the City Council declares that the revocation of Unclassified Use Permit No. 237 shall be effective as of the date of this Resolution. SECTION 6. The City Clerk shall mail or otherwise deliver a certified copy of the Resolution to the Applicant and to such other persons as are required to be notified and to those persons who have requested notification and shall file this Resolution with the City Council the same day as said mailing or deliv- ery. SECTION.7. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Resolution and the same shall take effect immediately. APPROVED AND ADOPTED this 12th day of July, 1982. ATTES Mayor I HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of West Covina, California, at a regular meeting thereof held on the 12th day of July, 1982, by the following vote of the Council: AYES: Bacon, Shearer, Chappell NOES: None ABSTAIN: Tice ABSENT: Tennant APPROVED AS TO FORM: City Att rney City Clerk - 3 -