CUP Is a Dirty Word : Some Businesses Object to the Way Hermosa Beach Uses Conditional-Use Permits

The dirtiest word these days to some Hermosa Beach business owners is not a word at all, but a series of three letters they usually utter with a sneer: C-U-P.

It is an acronym for conditional-use permit. And Hermosa Beach officials, responding to complaints from residents about rowdy patrons and loud noise, have used the permits to impose restrictions on bars, nightclubs and other establishments that either sell alcohol or cater to a late-night clientele.

The practice is used in many cities, but in recent years Hermosa has been especially aggressive in relying on the permit process to crack down on its party town atmosphere. And lately, it has rubbed some local business operators the wrong way, resulting in a lawsuit filed by two business owners, much grumbling among others and creation of a special Chamber of Commerce committee aimed at improving the business community’s image.

“The city of Hermosa Beach has taken a normal zoning mechanism and twisted it into a punitive enforcement tool,” said merchant Frank Boccato, who has filed suit against the city to challenge conditions put on his business.

But Planning Director Michael Shubach insists that the conditions put on businesses have been both reasonable and legal.

Conditional-use permits enable municipalities to put restrictions on businesses as a condition of operation. If operators violate the conditions, the City Council can hold a hearing to impose additional conditions or to prevent the business from operating.

In Hermosa Beach, city officials have used the permits to force operators to restrict hours and noise levels, refurbish property and post warning signs telling customers not to loiter or drink in public. The conditions are drawn up by city officials, but they often originate with complaints from residents.

“The conditional-use permit is the best method ever conceived to control the physical environment in which alcohol beverages are sold, so as not to violate the rights of those neighboring the businesses,” said Councilman Roger Creighton. “It prevents activity from spilling over into the domicile of others.”

The conflicts that the permits are designed to address are exacerbated in Hermosa because of geography--residents and businesses do not have much breathing room in the tiny, 1.3-square-mile community of 18,219 people.

Expensive beachfront condominiums are located a stone’s throw from busy Pier Avenue, where young people flock to hear live rock bands on the weekends. Homes lie adjacent to a new Harley-Davidson repair shop on Pacific Coast Highway. Residents are so close to the Jack-in-the-Box restaurant on Aviation Boulevard that they complain they can hear patrons placing their late-night orders at the drive-through window.

“The city of Hermosa Beach is a small town that has nearly all its commercially zoned property adjacent to residents,” said Chamber of Commerce member Jack Wood. That proximity, he concedes, has bred bad feelings in the community to the point where “residents here view businesses as a bother.”

Another explanation offered for the conflicts is the city’s population mix of older families and younger singles.

Soon after the 1970 census, a city planning official warned of a population shift in Hermosa that would drastically alter the dynamics of the community: the once sleepy bedroom community was becoming a singles’ hangout.

“This trend . . . will result in more irresponsible residents (coming) to the city,” the official wrote, adding that increasing numbers of “hippies (and) swingers” could change Hermosa Beach into the “Miami Beach of Southern California.”

Hermosa has acquired a “party town” image that officials have been trying for years to shake.

Conditional-use permits have been imposed on new businesses in Hermosa Beach for decades, but in recent years the city stepped up its enforcement efforts. It required about 50 longtime businesses, which had never had such permits, to apply for them and face additional conditions. For instance, the city decided those businesses needed to cut back on late-night hours, landscape their grounds and soundproof their walls.

Boccato, who has run Boccato’s Market in north Hermosa for 22 years, said he was surprised when city officials told him he had to post no drinking signs outside his business, clean up the exterior and abide by other conditions. City officials say the conditions were part of an effort to make all businesses that sell alcohol more responsible. Boccato, joined by Ron Duffdaut of Dan’s Liquors, has filed a lawsuit challenging the right of city officials to impose whatever conditions they choose.

“They forced me to apply for the CUP under threat of citation, placed onerous conditions on the CUP and said I had to agree to the conditions . . . or face losing (my) business,” Boccato said. “They are totally out of control at City Hall. They don’t believe that businesses or residents have constitutional rights anymore. I believe differently.”

Another businessman, Paul Hennessey, who owns the Lighthouse nightclub on Pier Avenue, is considering a lawsuit. The city this summer forced Hennessey to cut back on the hours that the nightclub features live music, eliminating weekend morning performances.

Initially, Hennessey had agreed with the city Planning Department on 20 conditions relating to noise and other issues. But Mayor Kathleen Midstokke and Councilman Robert Essertier--acting as private citizens rather than elected officials--appealed the Planning Commission’s decision to the City Council, where additional conditions were imposed.

Hennessey calls the cutback in hours unreasonable and says if they stay in effect he will be forced to close the nightclub.

City officials discount the lawsuits, saying that the right of cities to impose conditions on businesses has been well established. The officials also say the vast majority of businesses in the city have not protested the conditions, realizing they are for the greater public good.

Behind the scenes, the city’s merchants say they are attempting to change the community’s view toward business. The Chamber of Commerce has set up a subcommittee to spread the word that businesses are essential to the city, contributing both vitality and tax revenue.

“We’re trying to show the good residents who are kicking our butts in council meetings that they need us,” said Wood, who owns a design firm. “Our government and our people have an attitude that they don’t want business or need business. The city only tends to see things from the neighborhood side.”

At a council meeting last month, a frustrated Wood strode up to the microphone after officials cut back on the hours at the Jack-in-the-Box. Residents had complained of raucous partying in its parking lot until the wee hours of the morning.

In remarks that sparked derision from the audience, Wood urged the city to impose conditional-use permits on the residents that would force them to go to sleep earlier and stop complaining.

The council did not take up the matter.