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HomeMy WebLinkAbout1166 Pn i • • RESOLUTION NO. 1166 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE TOWN OF LOS ALTOS HILLS MAKING FINDINGS OF FACT AND ITS DETERMINATION CONCERNING THE PROPOSED REVOCATION OF THE CONDITIONAL USE PERMIT PREVIOUSLY GRANTED TO ADOBE CREEK COUNTRY CLUB RESOLVED, by the City Council of the City of the Town of Los Altos Hills , County of Santa Clara, State of California, that, WHEREAS, the City Council of -the City of the Town of Los Altos Hills heretofore adopted Resolution No. 1128 on June 7 , 1978 , declaring its intention to consider the revocation of the Conditional Use Permit previously granted to .Adobe Creek Country Club, or taking other action in connection therewith and set the hour of 7 : 30 o' clock p.m. on August 2, 1978, in the Council Chambers as the time and place for the public hearing; and WHEREAS, notice of the public hearing was given in the time and manner specified in Resolution No. 1128 ; and WHEREAS , the City Council conducted a public hearing on August 2 ugu t 1978, and thereafter conducted the continued public hearing on August 3 and '23, and 'October 4 and 23 , 1978, during which it heard sworn testimony from all interested persons. who appeared and requested that they be heard, and received and ad- mitted into evidence certain documents ; and WHEREAS, David Bellucci, Sr. , who claimed a beneficial in- terest' in n-terest' in the proceeding, did not appear in person, but was represented during the public hearing by Paul I . Myers , Jr. , of Myers, Hawley, Morley and Moore, attorneys at law; and WHEREAS, the City Council having closed the public hearing and having taken the matter under advisement and having considered ® • all of the evidence , both oral and documentary, presented during the public hearing, IT IS HEREBY FOUND, ORDERED AND N DETERMINED as follows : 1. The City Council hereby makes the following FINDINGS OF FACT: (a) David Bellucci, Sr. , although requested in writing to appear to clarify questions raised during the public hearing on August 23, 1978, did not appear in person. (b) Adobe Creek Country Club is the permittee under the Conditional Use Permit. (c) Adobe Creek Country Club (herein called "the Club") does not and has never itself conducted food and beverage opera- tions as required by the Conditional Use Permit. (d) Adobe Creek Country Club has allowed all food and bev- erage operations , and not only those outside activities for which caterers are allowed, to be conducted by Adobe Creek Properties , Inc. , which is owned and controlled by David Bellucci, Sr. (e) The City of the Town of Los Altos Hills (herein called "the City") has not been notified in writing at least 72 hours in advance of the holding of any special club event or outside activity in over one year. (f) The responsible employee originally designated as being on duty during all hours of operation at the Club is no longer employed by the Club. (g) The financial statement submitted by the Club for the period ending December 31, 1976 , discloses that the total amount of catering income received is $31,051 and that the total cash receipts is $154 ,487 . The amount of catering income is more than -2- 111 • ten percent of the gross income shown as having been received. (h) The financial statement submitted by the Club for the period ending December 31, 1977, discloses that the total amount. of catering income received was $64 ,953 and that the total cash receipts is $323,833 . The amount of catering income is more than ten percent of the gross income shown as having been received. (i) Lot 1 has been sold by David Bellucci, Sr. , to a third party. The house trailer, existing snack bar, storage shed, picnic tables and barcecue facilities and the buildings and structures thereon, with the exception of the private single family dwelling, which were required to be removed under the Conditional Use Permit, have been removed with the exception of one house which will be used as a temporary construction office by the new owner. (j) As of July 1, 1977, a new lease was entered into between the Club and David Bellucci, Sr. , (i) which would be terminated in the event of the expiration or revocation of the Conditional Use Permit; (ii) limiting the use to operation of a non-profit tennis and. swimming country club and uses related to and incidental to such use and purpose; (iii) requiring David Bellucci, Sr. , to maintain the property, and to make certain improvements including a tennis center, pro shop, shower, locker and bathroom facilities, two saunas and one Jacuzzi, but requiring his consent to any improvements or alterations made by the Club and vesting ownership of all improvements made in David Bellucci, Sr. ; (iv) The continuation of the Lease is conditioned upon the continued existence of a management contract between the Club and Adobe Creek Properties , Inc. -3- (k) As of July 1, 1977, a management agreement was entered into between the Club and Adobe Creek Properties , Inc. , and exe- cuted by David Bellucci, Sr. , as president, (i) requiring Adobe Creek Properties, Inc. , to provide all managerial, administrative and facility services to the Club; (ii) requiring the Club to pay to Adobe Creek Proper- ties , Inc. , all proceeds derived from the operation of the Club, less such sum as the Club is obligated to pay to David Bellucci, Sr. , pursuant to the Lease; (iii) providing that the Management Contract shall :con- tinue in effect so long as the Club is the permittee of a Conditional Use Permit from the City; (iv) providing only for the termination of the Manage- ment Contract by the mutual agreement of the parties , as an alternative to termination by reason of the Club no longer being the permittee under .a Conditional Use Permit; (v) No provision being made for the unilateral termina- tion of the Management Agreement by the Club; (vi) Holding the Club harmless from any liability; (vii) Requiring Adobe Creek Properties , Inc. , to pay all bills or debts , as well as prior existing debts . (1) Neither the members , nor the Advisory Board, nor the Board of Directors of the Club has any control over the Club, its activities , its receipts or bank accounts of the Club, or any of them. (m) When the new Lease and Management Contract were entered into, an Advisory Board was created and a new Board of Directors -4- 411 consisting of three persons who were to be the only members of the Club was attempted to be created. The membership of the new Board of Directors included the attorney and accountant for David Bellucci , Sr. (n) Following the issuance of the Conditional Use Permit, certain improvements consisting of, but not limited to, tennis courts , tennis control center and landscaping were caused to be made by David Bellucci, Sr. , or Adobe Properties , Inc. (o) David Bellucci, Sr. , is the president and sole share- holder of Adobe Properties , Inc. (p) The original Board of Directors of the Club were re- quested to and did assume indebtedness which David Bellucci, Sr. , claimed should be paid by the Club for organizational expenses and subsequent improvement costs. The Board of Directors , by July, 1977, concluded that it was impossible to operate success- fully with a debt of the magnitude it had been persuaded to assume. In exchange for the assumption of the purported indebtedness by David Bellucci, Sr. , or Adobe Creek Properties , Inc. , the Board of Directors and membership of the Club agreed that all receipts would be paid to and controlled by David Bellucci, Sr. , and Adobe Creek Properties , Inc. Based upon the foregoing Findigns of Fact, it is DETERMINED AND ORDERED as follows : 1. Although it appears that the City has not been notified in writing at least 72 hours in advance of the holding of a spe- cial Club event or outside activity in over a year, and that the name of the responsible employee who replaced the responsible employee originally designated as being on duty during all hours -5- of operation at the Club has not beenrovided to the City, these P Y failures of themselves would not warrant the revocation of the Conditional Use Permit. 2 . Although the Club exists in law, it does not exist in fact as an operating non-profit corporation required by the Con- ditional Use Permit because neither the individual members , nor the Board of Directors nor the Advisory Board exercise any degree of control over Club policy, including but not limited to the types of activities to be conducted; the use of Club facilities by members or licensees of the Club or outside groups ; or the food and beverage operations ; the amount of fees, prices or other charges made ; the employment or dismissal of employees and the amounts of the salaries or other fringe benefits ; the reimburse- ment or disbursement of funds ; or the disposition of assets or any surplus of receipts over costs . 3. Byreason of the Club failingto control the distribu- tion- of any sums of money received, it fails to control the dis- tribution of profits . The Club has ceased to be a non-profit organization because any surpluse of receipts over expenses or profits are distributed to and for the benefit of David Bellucci, Sr. , and/or Adobe Creek Properties , Inc. , neither of whom is a non-profit organization. 4 . The investment in improvements was made with knowledge of the Conditional Use Permit, its terms and conditions and the zoning laws of the City, and the possibility of the revocation thereof. Following the revocation of the Conditional Use Permit, the property owner could cause a new application to be filed through a non-profit organization. -6- *vy`. • I • � s 5 . Adobe Creek Country Club is now and has been since the inception of the Conditional Use Permit customarily carried on primarily for the profit of David Bellucci, Sr. , and Adobe Creek Properties, Inc. , which is contrary to and in violation of Subsection (d) of Section 9-5 . 703 of the Los Altos Hills Muni- cipal Code which allows a Conditional Use Permit for recreational facilities, including recreational or community center buildings and grounds for games and sports, except those customarily carried on primarily for profit. IT IS ORDERED that the Conditional Use Permit heretofore issued to Adobe Creek Country Club be , and the same hereby is REVOKED effective as of 12 : 01 a.m.. on December 15, 1978 . REGULARLY passed and adopted this 15th day of November, 1978 . . r A YOR ATTEST: • _ ity Clerk -7-