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CITY COUNCIL AGENDA ITEM NO. 27

Meeting Date: June 27, 2006

Subject/Title: Introduce and waive the first reading of an ordinance for a minor modification to Ordinance No. 772 limited to correct inconsistencies in the City’s zoning ordinance resulting from the expiration of the temporary prohibition on new movie theaters imposed by that action, and restore the City’s 2004 zoning requirements relating to motion picture theaters in the following zoning designations: Movie theaters as a permitted use in 1) Planned Development 6 (PD-6), Planning Areas - Regional Commercial and Office Commercial, and 2) Planned Development 16 (PD-16), Subarea A.

Prepared by: Heidi Kline, Planning Manager

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION

The Planning Commission and staff recommend the City Council introduce and waive the first reading of an ordinance for a minor modification to Ordinance No. 772 limited to correct inconsistencies in the City’s zoning ordinance resulting from the expiration of the temporary prohibition on new movie theaters imposed by that action, and restore the City’s 2004 zoning requirements relating to motion picture theaters in the following zoning designations: Movie theaters as a permitted use in 1) Planned Development 6 (PD-6), Planning Areas - Regional Commercial and Office Commercial, and 2) Planned Development 16 (PD-16), Subarea A.

BACKGROUND

In early 2004, the City’s Economic Development Subcommittee began considering which locations in the City were most appropriate for the development of new motion picture theaters. The committee concluded that additional information and time was needed to consider the question of appropriate locations for new motion picture theaters, and therefore it would be in the City’s best interests to limit the development of new motion picture theaters in the City. The Committee determined that establishing such limits would both serve to protect the City’s future options to have a theater downtown, and notify the public and the development community that no conclusions had yet been reached as to whether the downtown area is the only acceptable location for a theater.

On March 9, 2004, the City Council adopted Ordinance No. 772, temporarily prohibiting the development of new motion picture theaters in the City until after the City Council adopted a new Specific Plan for the downtown area (the “Downtown Specific Plan”) As a result of this temporary City-wide prohibition, the two zoning districts (Sections 17.456.002 and 17.466.003) in which movie theaters were a permitted use at that time were modified to temporarily delete movie theaters from the list of permitted uses to ensure internal consistency of the zoning ordinance during the interim period prior to the adoption of the Downtown Specific Plan.

ANALYSIS

On November 16, 2005, the City Council adopted by ordinance its new Downtown Specific Plan. As a result, the temporary restrictions on motion picture theaters imposed by Ordinance No. 772 have expired. With the adoption of the Downtown Specific Plan, the temporary Citywide prohibition on movie theaters has expired by its own terms, and so to ensure the continued internal consistency of the zoning ordinance it is necessary to restore the prior zoning designations to Sections 17.456.002 (PD -6, Planning Areas – Regional Commercial and Office Commercial) and 17.466.003 (PD -16, Subarea A) to reflect the expiration of the temporary restriction. This proposed modification of the text of the zoning ordinance does not impose new zoning land use regulations; rather it implements the termination of the temporary use regulation imposed by the original Ordinance No. 772 by correcting the PD-6 and PD-16 zoning designations to reflect the expiration of the temporary prohibition on new movie theaters.

ENVIRONMENTAL ASSESSMENT

The proposed modification of Ordinance No. 772 does not propose any specific development or motion theater project, and any new motion theaters proposed for development in the City will be required to undergo environmental review in compliance with CEQA. The proposed modification is necessary solely to reflect the completion of the project that was implemented by Ordinance No. 772 and the 2004 Negative Declaration for Ordinance No. 772. Thus, the minor modification to Ordinance No. 772 does not result in any of the conditions described in Section 15162 of the CEQA Guidelines requiring the preparation of a subsequent EIR or negative declaration. Therefore, the City has prepared an Addendum to the 2004 Negative Declaration, as required by CEQA, to support the modification of Ordinance No. 772.

CONCLUSION

The purpose of Ordinance 772 was to impose a temporary prohibition on the development of new motion picture theaters throughout the City; until such time that the Downtown Specific Plan was adopted by Council. As a result of the adoption of the Downtown Specific Plan, the temporary restrictions on motion picture theaters imposed by Ordinance 772 have expired. In order to restore internal consistency to the City’s zoning ordinance, it is necessary to modify the zoning text for PD-6 and PD-16 to reflect the expiration of the temporary restrictions.

FISCAL IMPACT

There would be no fiscal impact to the City. The project involves a minor modification to the zoning ordinance text.

ATTACHMENTS:
1. Ordinance Modifying Ordinance No. 772
2. Addendum to Negative Declaration for Ordinance 772
3. PD-6 Planning Area Map
4. PD-16 Subarea Location Map

ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD MODIFYING ORDINANCE NO. 772 RELATED TO MOTION PICTURE THEATERS.

WHEREAS, it is the City’s goal to encourage and facilitate economic development, and provide convenient services to its residents and businesses; and

WHEREAS, motion picture theaters are an integral part of the City’s strategy for promoting economic development and vitality and maintaining and enhancing commercial areas throughout the City; and

WHEREAS, in early 2004, the City’s Economic Development Committee began considering which locations in the City were most appropriate for the development of new motion picture theaters; and

WHEREAS, the Economic Development Committee concluded that more time was required to consider the question of appropriate locations for new motion picture theaters, and therefore it would be in the City’s best interests to limit the development of new motion picture theaters in the City. The Committee determined that establishing such limits would both serve to protect the City’s future options to have a theater downtown, and notify the public and the development community that no conclusions had yet been reached as to whether the downtown area is the only acceptable location for a theater; and

WHEREAS, on March 9, 2004, the City Council adopted Ordinance No. 772, temporarily prohibiting the development of new motion picture theaters in the City until after the City adopted a new Specific Plan for the downtown area (the “Downtown Specific Plan”). As required by and in compliance with the California Environmental Quality Act (“CEQA”), the City adopted a Negative Declaration (the “2004 Neg. Dec.”) to support its adoption of Ordinance No. 772 ; and

WHEREAS, the primary purpose of Ordinance No. 772 was to provide the City with sufficient time to analyze potential strategic locations for motion picture theaters and determine whether the downtown area is the only appropriate location in the City for new motion picture theaters; and

WHEREAS, in the twenty-six months since Ordinance No. 772 was adopted, the City has been conducting comprehensive planning processes for the downtown area and for the Brentwood Boulevard Corridor. These processes have included multiple Committee meetings, public workshops and hearings. One of the primary questions considered by the City and the public during these planning processes was whether the downtown area is the only appropriate location in the City for new motion picture theaters; and

WHEREAS, on November 15, 2005, the City adopted its new Downtown Specific Plan. At the same time, the City Council certified an Environmental Impact Report (“EIR”) for the Downtown Specific Plan; and

WHEREAS, based on the Downtown and Brentwood Boulevard planning processes and the studies and consideration of its Economic Development Committee, the City has concluded that the downtown area is not the only appropriate location in the City for new motion picture theaters, and therefore it is appropriate to lift the temporary prohibition on new motion picture theaters imposed by Ordinance No. 772; and

WHEREAS, the City Council has determined that the proposed minor modifications to Ordinance No. 772 are limited to removing the temporary restrictions imposed by that action and restoring the City’s 2004 zoning requirements relating to motion picture theaters; and

WHEREAS, the proposed modification of Ordinance No. 772 does not propose any specific development or motion theater project, and any new motion theaters proposed for development in the City will be required to undergo environmental review in compliance with CEQA; and

WHEREAS, the proposed minor modifications to Ordinance No. 772 will not result in any of the conditions described in Section 15162 of the CEQA Guidelines requiring the preparation of a subsequent EIR or negative declaration. Therefore, the City has prepared an Addendum to the 2004 Negative Declaration, as required by CEQA, to support the modification of Ordinance No. 772; and

WHEREAS, the Planning Commission held a legally-notice public hearing on June 6, 2006, considered all public comments both before and during the public hearing, the presentation by City staff, the staff report, the recommendations, and all other pertinent documents and associated actions regarding the ordinance amendment.

WHEREAS, at their meeting of June 6, 2006, the Planning Commission made the following findings:

1) The proposed modification of Ordinance No. 772 constitutes a minor technical change to Ordinance No. 772, the purposes of which are to (i) acknowledge that the temporary restrictions imposed by Ordinance No. 772 have expired, and (ii) restore internal consistency to the City’s zoning ordinance.

2) The proposed modification of Ordinance No. 772 will not result in any of the conditions described in Section 15162 of the CEQA Guidelines calling for the preparation of a subsequent EIR or Negative Declaration.

3) Any new motion picture theaters proposed or developed in the City following the modification of Ordinance No. 772 will be within the scope of the development levels evaluated in the EIR prepared for the City of Brentwood General Plan.

4) The proposed modification of Ordinance No. 772 does not propose any specific development or new motion picture theater project, and any new motion theaters proposed for development in the City will be required to undergo environmental review in compliance with CEQA.

5) This modification of Ordinance No. 772 is consistent with the General Plan and other applicable City plans, and is appropriate to the public interest, in that it will help achieve General Plan Goals and Policies, and help support economic development and provide convenient services to residents and businesses.

WHEREAS, the Planning Commission recommended approval of the minor modifications of Ordinance 772 to the City Council: and

WHEREAS, a Notice of Public Hearing was legally advertised in the Brentwood Press, and mailed according to City policies and Government Code Section 65091; and

WHEREAS, after close of the public hearing, the City Council considered all public comments received both before and during the public hearing, the presentation by City staff, the staff report, the recommendations, and all other pertinent documents and associated actions regarding the proposed ordinance amendment; and

NOW, THEREFORE BE IT ORDAINED, that the City Council of the City of Brentwood:

1) Hereby, finds that:

A. The proposed modification of Ordinance No. 772 constitutes a minor technical change to Ordinance No. 772, the purposes of which are to (i) acknowledge that the temporary restrictions imposed by Ordinance No. 772 have expired, (ii) give City-wide effect to the expiration of the temporary restrictions, and (iii) restore internal consistency to the City’s zoning ordinance.

B. The proposed modification of Ordinance No. 772 will not result in any of the conditions described in Section 15162 of the CEQA Guidelines calling for the preparation of a subsequent EIR or Negative Declaration.

C. Any new motion picture theaters proposed or developed in the City following the modification of Ordinance No. 772 will be within the scope of the development levels evaluated in the EIR prepared for the City of Brentwood General Plan.

D. The proposed modification of Ordinance No. 772 does not propose any specific development or new motion picture theater project, and any new motion theaters proposed for development in the City will be required to undergo environmental review in compliance with CEQA.

E. This modification of Ordinance No. 772 is consistent with the General Plan and other applicable City plans, and is appropriate to the public interest, in that it will help achieve General Plan Goals and Policies, and help support economic development and provide convenient services to residents and businesses.

F. The foregoing recitals and staff report are found and determined to be true and correct.

2) Approves and adopts the Addendum prepared for this project in accordance with CEQA.

3) Amends Ordinance No. 772, as adopted on March 9, 2004 and published in Title 17 of the Brentwood Municipal Code as follows (added text underlined):

Proposed Modification of Ordinance No. 772
(Deleted text shown in strikethrough format; new text underlined)

CHAPTER 17.230
COR (COMMERCIAL OFFICE/RESIDENTIAL) ZONE

17.230.05. Other Regulations

D. Motion Picture Theaters. Until the Downtown Specific Plan, now in preparation is adopted, the new Motion Picture Theaters will not be permitted in any Zone in the City. With adoption of the Plan, the City Council will determine the most appropriate location(s) for such Theaters.

CHAPTER 17.280
CB (CENTRAL BUSINESS) ZONE

17.280.05. Other Regulations

D. Motion Picture Theaters. Until the Downtown Specific Plan, now in preparation is adopted, the new Motion Picture Theaters will not be permitted in any Zone in the City. With adoption of the Plan, the City Council will determine the most appropriate location(s) for such Theaters.

CHAPTER 17.456
PD 6 (PLANNED DEVELOPMENT 6) ZONE

17.456.02 Permitted Uses and Conditionally Permitted Uses

Regional Commercial Office Commercial
Movie Theaters PP PP

CHAPTER 17.466
PD 16 (PLANNED DEVELOPMENT 16) ZONE

17.466.03 Cinemas and/or Theaters

C.4. Cinemas and/or Theaters Cinemas and/or Theaters

4) Declares this Ordinance shall take effect and be in force thirty (30) days following its adoption and, prior to the expiration of fifteen (15) days after its adoption, it shall be published once with the names of the council members voting for and against it in a newspaper of general circulation, available in the City of Brentwood.

5) Declares that if any section, subsection, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the Council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision.

6) Declares any judicial review of this Ordinance shall be by writ of mandate under Code of Civil Procedure 1085. Any action or proceeding seeking to attack, review, set aside, void or annul this ordinance shall be commenced within 90 days after the adoption of this Ordinance.

7) Declares that this Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the ordinance in accordance with that law. Further, the City Clerk is directed to cause Section 3 of this Ordinance to be entered in the Brentwood Municipal Code.

8) Directs the City Clerk, in accordance with Government Code Section 65863.5 and upon the effective date of this Ordinance, to deliver a copy of this Ordinance to the County Assessor.

THIS ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 27th day of June 2006, by the following vote:

ADDENDUM
TO NEGATIVE DECLARATION FOR ORDINANCE NO. 772
(THEATER ZONING ORDINANCE)

INTRODUCTION

In March 2004, the City of Brentwood (“City”) adopted Ordinance No. 772 (the “Project”), imposing a temporary prohibition on the development of new motion picture theaters in the City until the City adopted a new specific plan for its downtown area. To comply with the California Environmental Quality Act (CEQA) requirements, the City adopted a tiered negative declaration (“Tiered ND”) for the Project.

Recently, the City adopted its new Downtown Specific Plan. As a result, the temporary prohibition on new theaters has expired. Because this temporary prohibition has expired, it is necessary to modify Ordinance No. 772 to ensure that the City’s zoning ordinance remains internally consistent.

This Addendum contains the following sections:

A. Project Description and Description of Proposed Project Modification.

B. Previous Environmental Review for Project

C. An Addendum as Required to Modify Ordinance No. 772

D. Summary of Conclusions

A. PROJECT DESCRIPTION AND DESCRIPTION OF PROPOSED PROJECT MODIFICATION

The original Project, Ordinance No. 772, was adopted by the City on March 9, 2004. Its purpose was to impose temporary restrictions on the development of new motion picture theaters in the City, in order to give the City sufficient time to determine whether the appropriate locations in the City for new motion picture theaters.

Ordinance No. 772 stated, “until the Downtown Specific Plan, now in preparation, is adopted, new Motion Picture Theaters will not be permitted in any Zone in the City.” To ensure that the City’s entire zoning ordinance would remain internally consistent, Ordinance No. 772 applied this temporary restriction to each zone in the City that currently permitted motion picture theaters, by modifying the text of the zoning ordinance as it applied to each such zone.

On November 15, 2006, the City adopted its new Downtown Specific Plan. As a result, the temporary restrictions on motion picture theaters imposed by Ordinance No. 772 have expired. In order to restore internal consistency to the City’s zoning ordinance, it is necessary to modify the text of Ordinance No. 772 to restore the zoning designations that were in effect prior to the adoption of the temporary restrictions.

As was the case with the original Project, the proposed Project modification does not propose any specific development or motion picture theater project, and any proposed development or motion picture theater projects in the City will be required to fully comply with the environmental review requirements of CEQA.

B. PREVIOUS ENVIRONMENTAL REVIEW FOR PROJECT

In December 2003, the City prepared an Initial Study (“IS”) for the Project. In accordance with Sections 15152 and 15168 of the CEQA Guidelines, the IS was “tiered” on two earlier environmental documents: (i) the 1993 Brentwood General Plan Update EIR; and (ii) the 2001 Brentwood General Plan Update EIR. The IS evaluated the potential environmental impacts of the Project to determine whether the Project was likely to cause any new significant environmental effects that were not considered and addressed in the 1993 General Plan Update EIR or the 2001 General Plan Update EIR. Based on the evaluation in the IS, the City concluded that the Project would not cause any new significant impacts and that the Tiered ND was the appropriate CEQA document for the Project.

C. AN ADDENDUM IS REQUIRED TO MODIFY ORDINANCE NO. 772

In accordance with CEQA Guidelines section 15164, the City has prepared this addendum to the Tiered ND for the Project.

The California Environmental Quality Act (CEQA) (Public Resources Code section 2100 et seq.) requires a lead agency to prepare an addendum to a previously adopted negative declaration if minor technical changes to the project are necessary, or none of the conditions described in CEQA Guidelines section 15162 requiring the preparation of a subsequent EIR have occurred. Section 15162 prohibits a lead or responsible agency from requiring a subsequent EIR for a project unless:

(i) substantial changes are proposed in the project that will require major revisions to the previous EIR,
(ii) substantial changes occur with respect to the circumstances under which the project is being undertaken that will require major revisions to the EIR, or
(iii) new information of substantial importance to the project, which was not known and could not have been known at the time the EIR was certified as complete, becomes available.

(Public Resources Code section 21166; California Code of Regulations section 15162.)

The proposed modifications to this Project constitute only minor technical changes to the original Project and will not result in any of the three conditions described in CEQA Guidelines Section 15162 requiring preparation of a subsequent EIR. Therefore, for both of these reasons, an addendum is required to document the City’s determination that no subsequent or supplemental negative declaration or EIR is required. (14 California Code of Regulations, Section 15164(a)).

1. The Proposed Project Modifications Constitute Only Minor Technical Changes to the Original Project.

The original Project imposed temporary restrictions on the development of new motion picture theaters in the City, by prohibiting new theaters anywhere in the City until the Downtown Specific Plan was adopted. With the adoption of the City’s new Downtown Specific Plan, the Ordinance’s temporary prohibition on new motion picture theaters has, by its own terms, expired. As with the adoption of the Ordinance, however, its expiration has caused certain provisions of the zoning ordinance to become internally inconsistent. As a result, it is necessary to make minor changes to the Ordinance to avoid internal inconsistencies in the City’s overall zoning ordinance.

The proposed modifications to the Project are only minor technical changes within the meaning of Section 15164. They do not change or affect the temporary prohibition on new motion picture theaters. Their sole purpose is to ensure that the expiration of the theater prohibition, as required by Ordinance No. 772, does not create inconsistencies in the City’s overall zoning ordinance.

As was the case with the original Project, the proposed modification does not propose any specific development or motion picture theater project, and any proposed development or motion picture theater projects in the City will be required to fully comply with the environmental review requirements of CEQA.

2. The Proposed Modifications Will Not Result in Any of the Conditions Described in Section 15162 of the CEQA Guidelines.

The City finds that none of the conditions described in CEQA Guidelines section 15162 requiring preparation of a subsequent EIR have occurred. Specifically, the City has determined the following.

a. No Substantial Change in the Project. The original Project imposed a temporary prohibition on new motion picture theaters in the City, which by its own terms, would expire when the City adopted its Downtown Specific Plan. The City has adopted the Downtown Specific Plan, so the temporary prohibition created by the Project has, by its own terms, expired. The proposed modification to the Project does propose any new development or otherwise constitute a substantial change in the Project. Rather, its sole purpose is to remedy the internal inconsistencies in the City’s zoning ordinance that would result from the expiration of the theater prohibition, as required by the Project.

b. No Substantial Changes in Circumstances. There have been no substantial changes in the circumstances surrounding the Project that require the preparation of a subsequent negative declaration. The Project consists of the imposition of a temporary land use restriction that would expire when the City adopts its Downtown Specific Plan. At the time the City approved the original Project, the Downtown Specific Plan process was underway, and its adoption was specifically anticipated by the Project. Thus, the adoption of the Downtown Specific Plan does not constitute a change in the circumstances surrounding the Project. As was the case with the adoption of the Project, the proposed modification does not propose any specific development or theater project, and any new projects of this nature will be required to fully comply with CEQA.

c. No New Information of Substantial Importance. There is no new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Project was approved, that requires the preparation of a subsequent negative declaration or EIR. As it was approved, the Project imposed a temporary prohibition on new theaters in the City, and by its own terms, that prohibition has now expired. As a result, the Project is complete. Since the Project was approved and completed, no new information has emerged showing or suggesting that: (i) the Project will or did result in significant impacts not discussed or evaluated in the Tiered ND; (ii) the Project resulted in any impacts evaluated in the Tiered ND that were substantially more severe than was anticipated in the Tiered ND; (iii) mitigation measures rejected as infeasible in the Tiered ND would in fact be feasible to reduce one or more potentially significant impacts of the Project; or (iv) mitigation measures not considered in the Tiered ND would have substantially reduced one or more potentially significant Project impacts.

D. SUMMARY OF CONCLUSIONS

Because the proposed modifications to the Project (i) constitute only minor technical changes within the meaning of Section 15164 of the CEQA Guidelines, and (ii) will not result in any of the conditions described in Section 15162 of the CEQA Guidelines requiring the preparation of a subsequent negative declaration or EIR, the City has determined that an addendum to the Tiered ND is the required CEQA compliance document for the proposed modification of this Project.
 

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