CITY OF YUBA CITY STAFF REPORT February 6, 2007 Honorable

CITY OF YUBA CITY
STAFF REPORT
Date:
February 6, 2007
To:
Honorable Mayor & Members of the City Council
From:
Community Development Department
Presentation By:
Aaron M. Busch, Community Development Director
Summary
Subject:
Review of proposed site plan for the new Cinemark Theater and Finding
of Consistency with the City's Movie Theater Ordinance.
Recommenda tion:
Adopt a Finding that the proposed Cinemark site plan is consistent with
the City's Movie Theater Ordinance and direct staff to forward the
project to the City's Planning Commission for processing and review.
Fiscal Impact:
None. The cost for processing the application will be funded by the
payment of the required entitlement fee which is a flat rate fee that
covers all staff costs.
Background:
In February of 2003, the City adopted a new Movie Theater Ordinance that was aimed at
encouraging the establishment of new movie theaters in the City's downtown area by
restricting the construction of new theaters to within the boundaries of the Central City
Specific Plan. The Ordinance included a sunset date on this restriction until January 1, 2008.
On September 7, 2004 the Council approved an amendment which included the same
language as the prior ordinance, but changed the sunset date on the restriction until January 1,
2013. A copy of the 2004 Ordinance is provided as Attachment 1.
Following the adoption of the Ordinance, Cinemark, the operator of the existing Movies 8
Theater that is located outside the boundaries of the Central City Specific Plan, advised the
City that they had plans to expand and upgrade their existing theater that has been in
operation for nearly 21 years. According to the Ordinance, the intent of the Ordinance was not
"to make nonconforming any existing movie theaters in Yuba City or limit their potential for
expansion". Based on this language, the owners of the Movies 8 Theater have begun
designing a new expansion of their existing theater.
During their preliminary design process, Cinemark approached the City about a new design
concept that included a new location for the theater on adjoining properties to the existing
I
Agenda Item
11
theater. Because of the new location, there was some discussion about how the Ordinance
provisions for "expansion" would apply to the proposed project. In response, staff requested
an interpretation from the City Attorney on the matter before any formal application was
submitted and processed. A copy of the City Attorney's interpretation is provided as
Attachment 2.
Analysis:
As shown on the proposed site plan (Attachment 3), the proposed theater project is comprised
of a new theater building versus a remodel/expansion to the existing building. To
accommodate the new theater, the proposed site plan includes the expansion of the existing
movie theater site through the inclusion of multiple adjoining properties. With the additional
adjoining properties, Cinemark is proposing to construct a new modern theater in a more visible
location near Highway 99 and demolish the existing theater. The proposed theater project will
increase the number of screens from eight to twelve and will increase the building in size
approximately 1 2,000 square feet. Additional parking is also proposed as part of the expanded
site plan. Cinemark has stated that the existing theater will be demolished upon completion of
the new theater.
Although the proposed theater project includes the construction of a new building at a new
location, the net result is an expansion of an existing business in a more visible location. The
proposed theater would be located on property directly adjacent to the existing theater site and
could be reasonably interpreted to constitute an "expansion" pursuant to the City's "Movie
Theater Ordinance". Furthermore, with the relocation of the theater to its proposed location,
there is a new opportunity to construct Oji Way which is identified as a General Plan roadway
segment that will ultimately connect between Bridge Street and Franklin Road. Currently this
road cannot be constructed since the existing theater is located in the future right-of-way for
this road.
Fiscal Impact:
None. The cost for processing the application will be funded by the payment of the required
entitlement fee which is a flat fee that covers all staff costs.
Alternatives:
Find that the proposed site plan is not consistent with the intent of the City's Movie Theater
Ordinance and direct the applicant to revise the project site plan accordingly.
Recommendation:
Adopt a Finding that the proposed Cinemark site plan is consistent with the City's Movie
Theater Ordinance and direct staff to forward the project to the City's Planning Commission for
processing and review.
Prepared By:
Submitted By:
(aron M. Busch
Community Development Director
Steve/I R. Jepsen
City Manager
Reviewed By:
Department Head
Finance
City Attorney
Other: (Name, Title)
Attachments
1. Movie Theater Ordinance
2. Legal Opinion from City Attorney
3. Proposed Site Plan
ORDINANCE NO. 014-04
ATTACHMENT 1
ORDINANCE OF THE CITY OF YUBA CITY
AMENDING TITLE 8, CHAPTER 5 OF THE YUBA CITY MUNICIPAL CODE REGARDING
MOVIE THEATERS - FILE #ZC 04-02
THE CITY COUNCIL OF THE CITY OF YUBA CITY DOES ORDAIN AS FOLLOWS:
Section 1: The City of Yuba City believes that a vibrant, thriving and robust downtown
area is in the best interest of the City and would promote the general welfare of the citizens of
the City. In order to continue its effort to revitalize the downtown area, the City desires to
encourage the establishment of motion picture theaters in the downtown area. Movie picture
theaters are very effective in attracting people and revitalizing downtown areas. The purpose of
this Ordinance is to encourage the establishment of movie picture theaters in the downtown
area as shown on Exhibit A attached hereto and made a part hereof by this reference, in order
to revitalize the downtown area and to promote the general welfare of the citizens of the City of
Yuba City.
Section 2: Article 13, Community Commercial District (C-2), Section 8-5.1302 of the
Yuba City Municipal Code entitled "Uses" is hereby amended to read as follows:
"Indoor entertainment facility (i.e. motion picture theater(8), live theater, video game center,
skating rink, bowling alley, billiard parlor and other such uses)
(8)
Until January 1, 2013, new motion picture theaters may only locate within the boundaries of
the "Central City Specific Plan and Revitalization Strategy" adopted by the City Council on April
17, 1992. It is not the intent of this ordinance to make nonconforming any existing motion picture
theaters in Yuba City or to limit their potential for expansion."
Section 3: Save and except as herein amended, each and every provision of Title 8,
Chapter 5, Article 13 of the Yuba City Municipal Code, is hereby republished, readopted and
reaffirmed.
Section 4: This ordinance shall be in effective thirty (30) days after its adoption and after
it is adopted, it shall be published as provided for by law.
Section 5: This ordinance shall be in effect until January 1, 2013. On that date this
ordinance shall terminate and no longer be in effect.
Introduced and read at a regular meeting of the City Council of the City of Yuba City on the
J7th -day -of ^August, 2004, -and -adopted -at-a -regular meeting -thereof held on the 7th day-ef
September, 2004.
AYES:
NOES:
ABSENT:
Councilmembers Barkhouse, Cartoscelli, Hellberg and Mayor Hilliard
None
Councilman Doolittle
L\;\; iL^A J
MAYOR SANDRA HILLIARD
ATTEST:
APPROVED AS TO FORM:
CITY ATTORNEY
McDonough Holland ft Allen PC
Attorneys at Law
ATTACHMENT 2
Timothy P. Hayes
Attorney at Law
Yuba City Offic*
530.674.9761 tel
530.671.0890 fax
[email protected]
August 31,2006
Mr. Steven P. Jepsen, City Manager
City of Yuba City
1201 Civic Center Boulevard
Yuba City, CA 95993
Re
Legal Opinion on Municipal Code Ordinance No. 014-04 Pertaining to the
Location of Movie Theaters in Yuba City
Sacramento
555 Capitol Mall
9th Floor
Sacremenlo CA
95814-4692
tel91B.U4.3900
toll free BOO 403 3BOO
fax91B.444.S334
Oiklind
1901 Harrison Street
Bth Floor
Oakland CA
94B12-35D1
tel510.273.B780
toll free 800.339.3030
fax 610 839 91G4
Yuba City
422 Century Park Drive
Suite A
YJDS City CA
95991-5729
rel S30.674.97E1
faxS30.671.OMO
Deai Steve:
You asked us for a legal opinion on the following issues concerning Yuba City's
Ordinance No. 014-04 ("Ordinance"), which restricts the development of new movie
theaters to the City's downtown area until January 1, 2013.
Questions Presented
1.
Does the language of the current ordinance restrict movie theater
revisions to existing locations and/or theater operators? Could an existing movie
theater relocate its existing operation to another site in Yuba City?
2.
Ordinance 014-04 provides that it "is not the intent of this ordinance
to make nonconforming any existing motion picture theaters in Yuba City or to limit
their potential for expansion." To what extent does the "potential for expansion"
language permit building reconstruction? In other words, assuming the intent of the
Ordinance is site specific for current movie theaters, would it be necessary for an
expansion to retain an existing structure or some portion of an existing structure to
meet the definition of "expansion"?
Brief Answers
Although the Ordinance contains ambiguity, our opinions as to the questions are as
follows:
1. . In our opinion, Ordinance 014-04 is most reasonably interpreted as
referring to movie theater uses in the locations that were in existence at the time the
Ordinance was adopted, rather than to movie theater operators. In other words, the
exemption for existing theaters is site specific, meaning existing movie theater uses in
McDonough Holland 8 Alien PC
Attorneys at Law
Mr. Steven P. Jepsen, City Manager
City of Yuba City
August 31,2006
Page 2
place at the time the Ordinance was adopted may expand or make revisions to their
existing theaters, but may not relocate to another site/parcel in the City. Any
relocation would violate Ordinance 014-04.
2.
Assuming Ordinance 014-04's exemption for existing theaters is site/use
specific, the provision permitting such theaters to expand, in our opinion, means the
existing theaters may enlarge or increase the size of their current facilities or add
additional screens. Further, because the theater use is permitted at the existing site,
the theater could even destroy the existing facility and rebuild a new theater on that
site or parcel. In our opinion, a proposed "expansion" of the existing theaters would
not require that the existing structure or some portion of the existing structure be
retained. We do not believe that the Ordinance allows the theater expansion to extend
to other sites or properties or to adjoining properties.
Background
The City first adopted an ordinance in February 2003 -- Ordinance 001-03 - which
amended the Zoning Code to permit new motion picture theaters to be located within
the downtown area known as the "Central Specific Plan and RevitaUzation Strategy"
or "Central Specific Plan area," Ordinance 001-03, however, contained an exemption
for existing theaters: "It is not the intent of this ordinance to make nonconformiug
any existing motion picture theaters in Yuba City or to limit their potential
expansion." The stated purpose of the Ordinance was "to encourage the
establishment of motion picture theaters in the downtown area" and to "revitalize the
downtown area." The staff report to the City Council, dated January 7, 2003.
regarding Ordinance 001-03 further confirms the City's intent to revitalize the
downtown, but that the ordinance was not intended to "make either of the two
existing theaters in Yuba City nbnconforming." Ordinance 001-03 was set to expire
on January 1,2008.
At the time Ordinance 001-03 was adopted, there were two existing movie theaters in
the City — the aging Sutler Theater, already located in the "Central Specific Plan"
area, and the Cineniark "Movies 8" facility, located outside the Central Specific Plan
area. The owners of the Movies 8 theater were opposed to the adoption of Ordinance
001-03, as they were planning to construct a new stadium-style theater on another
parcel in the suburban area of the City.
On September 7,2004, the City adopted Ordinance 014-04, which contained the same
language as Ordinance 001-03 but simply extended the expiration date from January
1, 2008 to January 1, 2013. According to the August 17, 2004 staff report, the five
year extension limiting theater development to the downtown area was necessary
because the new theater planned for development in the downtown area was still
McDonough Holland & Allen PC
Attorneys at Law
Mr. Steven P. Jepsen, City Manager
City of Yuba City
August 31,2006
Page 3
"about one year away." As part of the negotiations for this new downtown theater,
the developer requested that the City extend the deadline five years. The staff report
concludes by recommending that the City Council adopt the ordinance "to limit new
theater construction to the area within die boundaries of the Central City Specific
Plan area..."
Movies 8 recently submitted preliminary conceptual drawings for a revised theater
plan at the existing site of Movies 8. Movies 8 is requesting staff comments on the
plan and advice in advance of submitting a formal application for a revised theater.
Both the existing Movies 8 facility and the new proposed facility, however, are
located on a site outside the Central Specific Plan area.
Analysis
You asked us for an opinion as to the exception in Ordinance 014-04 for existing
movie theaters located outside the Central Specific Plan area described in the
Ordinance. Such an opinion requires a close review of the Ordinance's language and
apparent intent in adopting such an ordinance pursuant to the legal rules of so-called
"statutory construction." This memorandum first reviews the applicable rules of
statutory construction and then applies those rules in construing the meaning of the
exception for existing theaters to answer the questions you presented as to whether it
is site specific and the scope of any permitted "expansion" for existing theaters like
Movies 8.
Ordinance
The pertinent part of Ordinance No. 014-04 reads as follows: "Until January 1, 2013,
new motion picture theaters may only locate within the boundaries of the "Central
City Specific Plan and Revitalization Strategy" adopted by the City Council on April
17, i 992. It is not the intent of this ordinance to make nonconforming any existing
motion picture theaters in Yuba City or to limit their potential for expansion."
Ordinance No. 014-04 had amended the original motion picture theater Ordinance
No. 001-03, by retaining the same language but by extending the effective date of the
ordinance form January 1, 2008 to January 1, 2013.
A.
Rules of Statutory Construction
The rules of statutory construction used by courts to interpret the meaning of
state statutes are also used to interpret municipal ordinances. Chaffee v. San
Francisco Public Library Comm'n, 134 Cal. App. 4th 109, 114 (2005). The
fundamental premise of statutory interpretation is to "ascertain and effectuate
McDonough Holland ft Allen PC
Attorneys at Law
Mr. Steven P. Jepseo, City Manager
City of Yuba City
August 31,2006
Page 4
legislative intent." Id. To determine legislative intent, we look first to the words of
the ordinance, giving them their usual and ordinary meaning. Id. When the
ordinance's language is clear and there is no doubt as to its meaning, no further
inquiry into the legislative history is required. Id. Where, however, the ordinance's
language is "susceptible of more than one reasonable interpretation, we look to a
variety of extrinsic aids, including the ostensible objects to be achieved, the evils to
be remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part." Id. The
ordinance should be interpreted so as to avoid absurd consequences and in a way that
promotes, not defeats, the general purpose of the ordinance. People v. Coronado, 12
Cal. 4th 145, 151 (1995). Additionally, "due consideration" must be given to the
public entity's view of the meaning of its own ordinance. Chaffee, 134 Cal. App. 4th
at 114. The construction placed on legislation or an ordinance "by the enacting body
is of very persuasive significance." City of Walnut Creek v. County of Contra Costa,
101 Cal. App. 3d 1012 (1980). "Also, construction of a statute by officials charged
with its administration must be given great weight." Id
B.
Exception for "Existing Motion Picture Theaters in Yuba
City"
Ordinance 014-04 limits the location of new motion picture theaters to sites
within the Central City Specific Plan area only, but expressly provides that n[i]t is not
the intent of this ordinance to make nonconfonning any existing motion picture
theaters in Yuba City or to limit their potential for expansion," You asked whether
this language regarding "existing motion picture theaters" restricts movie theater
revisions to existing locations and/or theater operators, such that an existing theater
operator could relocate an existing theater to another site in the City.
Applying the rules of statutory construction outlined above, we look first to
the meaning of "motion picture theater." Unfortunately, the City's Zoning Code does
not define either "motion picture theater" or "theater," nor did we find any court cases
on point. The Zoning Code, however, provides that if a term is not defined in the
code, its meaning shall be based on the "common definition" from a standard
dictionary. See Zoning Code: Art. 80, Sec. 8-5.8001. The dictionary defines a
"theater" in various ways depending on the particular use. Most relevant here, the
dictionary defines a theater as "a building for the showing of motion pictures."
Additionally, it is well-established that the "purpose of a zoning law is to regulate the
use of land." Morehari v. County of Santa Barbara, 7 Cal. 4th 725, 750 (1994)
(citing 1 Longtin's Cal. Land Use (2d ed. 1987)). Finally, the Ordinance itself,
allowing for motion picture theaters, is located in the list of uses that are allowed in
the Community Commercial District C-2 of the Zoning Code, Sec. 8-5.1302.
Holland & Allen PC
Attorneys at Law
Mr. Steven f , Jepsen, City Manager
City of Yuba City
August 31,2006
Page 5
Construing the dictionary definition La conjunction with the Zoning Code's
application to "uses," "motion picture theater" refers to the use of a building or
facility for showing movies at particular sites and not to the theater operator. In our
opinion, this means that those theaters that existed and were used to show movies at
the time Ordinance 014-04 was adopted are permitted to continue operation (i.e., it is
a permissible land use to continue operating a movie theater at the current sites).
However, those existing theaters or current theater operators could not relocate to a
new site outside the Central City Specific Plan area. Simply stated, we interpret the
limited exception for "existing motion picture theaters" as site specific to the existing
location of the theater use.
Construing "existing motion picture theaters" as site specific also finds
support in the legislative history. The staff reports the City Council considered when
it adopted the ordinance describe the ordinance as limiting "new theater construction"
to the Central City Specific Plan area only. Permitting an existing theater to change
locations would require new construction, contrary to the stated intent that only the
existing theaters be exempt from the ordinance limiting new construction to the
downtown area,'
It is our opinion that the exemption for "existing motion picture theaters" in
Ordinance 014-04 is reasonably read to mean that the existing movie theaters may
continue operation at the respective locations where the theaters were located at the
time the ordinance was adopted. Ordinance 014-04 limits construction of all new
theaters to the downtown area only. Stated differently, only that land within the
City's downtown area and the land on which the existing theaters exist may be used to
operate a movie theater. AU new movie theaters outside the defined downtown area
would not be allowed.
C.
"Potential for Expansion"
Ordinance 014-04 limits movie theater construction to the defined downtown
area, with the exception that existing movie theaters are not restricted in their
"potential for expansion." You asked for our opinion regarding the meaning of the
"potential for expansion" language in Ordinance 014-04 to determine what extent of
1
Indeed, even Movies 8 (also referred to as "Cinema 8") seems to have interpreted the preceding
Ordinance 001-03 to preclude construction of a new theater at a new suburban location. The attorney
representing Movies 8's owners, Michael Cook, spoke at the October 9, 2002 public hearing before the
City's Planning Commission when it considered the ordinance. Mr. Cook explained that Cinemark, the
owner of Movies 8, had plans to purchase a suburban site and build a new theater to replace the
existing theater, but thai adoption of Ordinance 001-03 would "cube" any such plans. See Yuba City
Planning Comm'n Minutes (Oct. 9,2002) ar p. 9.
XA T T A •
1V 11 M.M \.
McDonough Holland ft Allen PC
Attorneys «T Law
Mr. Steven P. Jepsen, City Manager
City of Yuba City
August 31,2006
Page 6
building reconstruction is permitted. As described in the "rules of statutory
construction" discussed previously, the "potential for expansion" language is an
example of language that is "susceptible of more than one reasonable interpretation."
We begin with our opinion as to the first question that the term "existing
motion picture theater" refers to the existing theater buildings at the locations they
were operating at in September 2004 when Ordinance 014-04 was adopted.
"Expansion" is not defined in the Zoning Code. City staff has informed us that they
have not been able to locate any City rule or regulation defining that term. We have
not been able to find any court case defining that term. As a result, we again turn to
the standard dictionary definition.
The dictionary defines "expand" as to "make bigger or wider in size, volume
or quantity.'" Synonyms for "expand" are "enlarge" or "increase." Although we
found no cases defining "expansion" as applied to conforming uses, the land use
decisions dealing with expansions of non-conforming uses are helpful in interpreting
Ordinance 014-04. Most city zoning codes prohibit non-confirming uses from
expanding or enlarging their use so as to phase-out the non-coriforming use. See
Yuba City Zoning Code, Article 73 of Chapter 5 of Title 8, and generally Donald G.
flagman, ct al., California Zoning Practice (1969 with 2005 Update) at §§ 9.8, 9.9.
For instance, expansions have included increasing the nonconfonning use of a tenacre cattle ranch to include additional acreage for keeping additional cattle. Fontana
v. Atkinson, 212 Cal. App. 2d 499 (1963). Likewise a nonconforming trailer court
was not permitted to expand from 20 trailers to 50 trailers. Edmonds v. County of Los
Angeles, 40 Cal. 2d 642 (1953).
Applying these definitions and examples to the exemption at issue, Ordinance
014-04 seems to mean that those existing movie theaters, like the existing Movies 8,
may renovate their existing theater facility to increase their size or add additional
screens. The Ordinance language did not restrict "expansion" to remodeling or
expansion of the existing structure or building, but instead used the very broad
language of not "limit(ing) their (existing theaters) potential for expansion."
Additionally, because the Zoning Code provision at issue governs land uses and
expressly provides that existing theater uses are not nonconfonning, it is our opinion
that the Ordinance and the word "expansion" should be interpreted broadly to mean
that the existing theater could be torn down and rebuilt, provided that the new theater
•was built on the site/parcel of the existing theater. In other words, a proposed
"expansion" of Movies 8 would not require that a portion of the existing structure be
retained as the new theater would still constitute a conforming use.
Although the Ordinance is subject to differing interpretations, our opinion is
that the Ordinance, while allowing Movies 8 to construct a new theater at the current
McDonough Holland & Allen
Attorneys ai Uw
Mr. Steven P. Jepsen, City Manager
City of Yuba City
August 31,2006
Page?
location on the parcel upon which the existing theater is situated, does not allow a
new theater to be constructed on a different site/parcel or adjoining parcels. To allow
a new theater to be constructed on a different parcel seems to us to be inconsistent
with and defeats the Ordinance's purpose that new theaters may only locate in the
downtown area. It should be noted that the City could amend and clarify the
Ordinance regarding its meaning and as indicated above, courts would give weight
and due consideration to the City's interpretation of its Ordinance.
Conclusion
In our opinion, Ordinance 014-04 permits those theaters in existence at the time it
was adopted, namely Movies 8, to expand or even reconstruct its current theater
facilities at the present location. Movies 8, however, would not be permitted to
relocate its existing theater to another site. Such an interpretation is based on the
plain meaning of the terms "theater" and "expansion" and the apparent intent in
adopting the ordinance so as to promote the development of the downtown area and
encourage downtown theaters. The City may want to consider amending Ordinance
014-04 if it has continued concerns about its meaning or application.
Please let us know if you have any questions or need additional information.
Very truly yours,
TIMOTHY P. HAYES
TPH:bu
SITE SUMMARY
THEATER AREA:
PROPOSED DEVELOPMENT
38.838 SQ.FT.
PROPOSED SEATING
2113
ATTACHMENT 3
PARKING:
THEATER (1:4 SEATS)
THEATER PROPOSED
WHYLER
528 SPACES (REQUIRED)
528 SPACES (INCLUDES 14 HC)
ASSEMBLED PARCELS:
APN 58-070-050
APN 5B-070-05I
APN 58-120-012
APN 58-120-013
APN 58-130-033
ROAD
.ȣ
APN 58-070-062
r
EXISTING
LOCATION
APN SB-07D-Q6J
APN 58-070-064
NOT A PART OF
1
J 1 1 1 1 1 1 1 U 1 1 1 1 1 U 1 1 1 1 1 1 1 kJ
APN 5B-070-05O
APK 58-070-051
o
o
> NEW 32' MIVEWAY
HH
HH
CO
tu
rr
IS-Bff
Rl SETBACK
PROPOSED
LOCATION
PROPOSED NEW 12 PLEX THEATER
CINEMARK THEATERS
GRAPHIC SCALE-
M,'."'.'".i
0 10'
30'
SCALE: I'-IOtf (11X17)
50'
PROJCCT MORTH