LETTER: A Common Frustration With Limits on Council's Authority

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The has highlighted a common frustration and misunderstanding regarding the City of Campbell's Conditional Use Permit Process.  I thank him for bringing the issue to light. 

I'd like to take this opportunity to clarify the position we are frequently in when considering a request for a Conditional Use Permit from a particular business or business owner.

Mr. Steele notes a common concern: often applicants propose a business plan that seems well suited to the City and our attempts to carefully balance entertainment and fun on the one hand while not letting it get out of hand or unfairly interfere with neighbors or public safety on the other.  In many cases we have no problem with the actual business plan; we may even know and trust the applicants themselves.  

Because I cannot comment on any specific example that may come before the Council, let me illustrate with a fictional one instead.  Suppose Chef Thomas Keller wanted to apply to open his famous French Laundry restaurant in downtown Campbell, and that he asked as part of his Conditional Use Permit that his restaurant be allowed to stay open and serve alcohol until 2 a.m.  Mr. Keller has a sterling reputation, and I'm aware of no bar fights or public safety threat his patrons have caused.  I also enjoy his food (at his more modestly priced venues) and believe it would make a great addition to downtown.  I would have no concern, in terms of public safety at least, about Mr. Keller's restaurant staying open until 1 or 2 a.m.

However suppose Mr. Keller was granted his permit, opened up business and then sold his restaurant in a year or two.  At that point, he could sell to essentially any other restaurant or bar, including one with a much different business plan that could include customers taking a series of shots on the bar, and result in patrons all piling out loud, drunk and maybe belligerent at 2 a.m.. 

The issue, as Mr. Steele correctly points out, is that the Conditional Use Permit "runs with the land".  In other words, once the Use Permit is granted, it becomes part of the property in a way.  The City Council does not have the authority to prevent the first applicant (Mr. Keller in this fictional instance) from selling his restaurant/bar along with the conditions of use already granted, including the 2 a.m. closing time.  

Mr. Steele proposes that the City Council simply change this rule.  We all sometimes wish we could.  Unfortunately, this is state law.  One of the leading legal cases on it is Anza Parking Corporation v. City of Burlingame (1988) 195 Cal.App.3d 855.  As Governor Brown's "Planner trainer series" summarizes, "[A] conditional use permit may not lawfully limit the permittee from transferring it with the land since such a condition is beyond the power of the zoning authority"  (from the California Office of Planning and Research; the Governor's "planner trainer series", found here:  http://ceres.ca.gov/planning/cup/condition.htm).

Because of this requirement, planning commissioners and City Council members always have to be thinking not just about the particular application or applicant before them, but about the use requested in general, including its impact if it were used by another unknown applicant.  The consequences for making the wrong decision can be serious and long-lasting.  

It can be frustrating at times, but overall the result, which demands an objective analysis of the use requested rather than a gut check on the particular applicant or business plan, is more fair to all applicants and makes for better, more consistent planning in the long term.  Unfortunately, it does not always make for easy decisions for the City Council.   


Jason Baker

Councilmember, City of Campbell  

Joe Hernandez August 31, 2012 at 02:31 PM
Well said.
David and Darlene Steele August 31, 2012 at 04:04 PM
Jason, thanks so much for your clear explanation, we do understand how things are currently and why. Great thing about this country is that when we identify a need for change we have the ability and freedom to do so. Something clearly needs to change here and this particular application is a great illustration of this.
Ed Sengstack August 31, 2012 at 04:17 PM
Well said, indeed. I don't believe any of us in Campbell want to be regarded as anti-business. But "long term" thinking/planning is the key here... including an effort to maintain a "balance" in our community... even though it may not always seem fair or to make sense at the moment of decision. Thanks!
Alan Zisser September 01, 2012 at 06:00 AM
Jason, thanks for taking the time to explain this issue and the law. Some of us actually read this stuff.


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