May 24, 2016
Board of Supervisors
Administration Building
44 N. San Joaquin St., Suite 627
Stockton, CA 95202
Dear Board Members:
PUBLIC HEARING REGARDING THE APPEAL BY THUY PHAN OF THE
PLANNING COMMISSION’S DENIAL OF SITE APPROVAL APPLICATION
NO. PA-1500057 OF THUY PHAN.
(4TH DISTRICT)
RECOMMENDATION:
That the Board of Supervisors conduct a public hearing to deny the appeal and uphold the Planning
Commission’s denial of Site Approval Application No. PA-1500057.
BACKGROUND:
This is an appeal of the Planning Commission’s denial of a revised Site Approval application for
a chicken ranch to raise a maximum of 275 roosters, hens, and chicks as a hobby and for
commercial food production for family and friends, and to construct a total of 575 square feet of
buildings. The project construction includes four (4) chicken coops, each to contain 119 square
feet, and a 119 square foot shade structure for storage. The chicken coops will be of an open-air
construction, comprised of a combination of wood and mesh materials. (Use Type: Animal
Raising - Small Animals)
On May 15, 2014, the Community Development Department opened Enforcement Case No. EN1400148 on the subject property for permitting or maintaining a public nuisance due to excessive
animals (chickens/roosters). On March 23, 2015, the applicant submitted Site Approval
application No. PA-1500057 for a chicken ranch to bring the property into compliance.
The original project request was for a chicken ranch to raise a maximum of 1,500 roosters, hens,
and chicks for live sale and construct a total of 2,880 square feet of chicken coops and feed
storage tanks in two phases over 5 years. On August 6, 2015, the Planning Commission voted
unanimously to deny Site Approval application No. PA-1500057 due to the inability to make
Finding No. 5, which states, “the use is compatible with adjoining land uses.” The Planning
Commission determined that this finding cannot be made because the proposed use is
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CDD - Appeal by Thuy Phan
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incompatible with and will interfere with the current residential and agricultural land uses on
adjacent properties.
On August 17, 2015, the applicant, Thuy Phan, appealed the Planning Commission's denial of
the Site Approval application to the Board of Supervisors. As a part of the appeal application, the
applicant included a revised project description for a chicken ranch to raise a maximum of 275
roosters, hens, and chicks as a hobby and for commercial food production for family and friends,
and to construct a total of 1,296 square feet of buildings. The revised project description was not
phased.
On December 8, 2015, the appeal was heard by the Board of Supervisors. The Board of
Supervisors conditionally denied the appeal and upheld the Planning Commission’s denial if the
applicant did not bring the property into compliance within 30 days of the board action pursuant
to the Notice of Order of Code Enforcement case EN-1400148. If the appellant brought the
property into compliance within 30 days of the board action, then the appellant had an additional
60 days to submit a revised Site Approval application to the Community Development
Department.
The number of birds on-site was reduced to 32 hens and chicks and 3 roosters, for a total of 35
chickens, and as a result, the property was brought into compliance and Code Enforcement case
EN-1400148 was closed on December 18, 2015. Pursuant to Development Title Table 9-1045.3,
parcels containing 3 acres or more are permitted to have a maximum of 35 chickens, of which
not more than 3 may be roosters, in the AG-40 zone without an approved land use permit under
the Animal Raising – General use type. The applicant meets this requirement.
On January 19, 2016, the applicant submitted the current revised Site Approval application and
site plan for a chicken ranch to raise a maximum of 275 roosters, hens and chicks as a hobby and
for commercial food production for family and friends and to construct 575 square feet of
buildings.
The applicant has stated that the chickens are not being raised for cockfighting and no
cockfighting was proposed with the original application nor the subsequent proposed revisions.
However, due to concerns raised by the design of the project, which has features common to and
indicative of roosters being raised for use in cockfighting, it is important to note that
cockfighting, as well as the ownership, possession, keeping, or training of any bird with the
intent that it be used by the owner/possessor or by any other person in an exhibition of
cockfighting is a violation of California Penal Code Sections 597b and 597j.
REASON FOR RECOMMENDATION:
The Planning Commission heard this matter at its regular meeting on March 17, 2016. The
applicant, Thuy Phan, and her legal counsel, George Hartman, spoke in favor of the project. Two
neighbors, Jim Womack and Dave Kafton, spoke in opposition. After consideration of all oral
and written testimony, the Planning Commission voted 4-1 to deny the revised Site Approval
application due to the inability to make Finding No. 5 in the affirmative.
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CDD - Appeal by Thuy Phan
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On March 25, 2016, the applicant, Thuy Phan, appealed the Planning Commission’s denial of the
Site Approval application to the Board of Supervisors.
APPEAL STATEMENT NO. 1:
In the appeal, the appellant states:
“San Joaquin County’s Right to Farm ordinance was not properly considered or applied
by the Planning Commission.”
RESPONSE TO APPEAL STATEMENT NO.1:
The Planning Commission determined that the proposed use is incompatible with and will
interfere with the current residential and agricultural land uses on adjacent properties.
Surrounding land uses to the north, south, east, and west include agricultural row crops and
single-family residences with detached accessory buildings on agriculturally zoned parcels.
Although the proposed use is agricultural in nature and the project site is zoned AG-40 (General
Agriculture, 40-acre minimum), the project site is in close proximity to adjacent residences and
adjacent parcels contain less area than the minimum 40-acre lot size. In addition, while the
number of birds has been reduced with the revised project description, the impact of noise
generated from the operation is still of concern. The nearest residence is located 275 feet away
from the project site. The project area is relatively flat and there are no existing topographical
features to buffer the sound that will be created by the roosters.
APPEAL STATEMENT NO. 2:
In the appeal, the appellant states:
“The Planning Commission’s inability or unwillingness to make Finding No. 5
(compatibility with adjoining parcels) appears to have been based on neighbor complaints
about noise emanating from roosters in an area zoned AG 40, which is specifically
exempt under applicable San Joaquin County noise ordinances…Development Title
Section 9-1025.9(b)(5) states that noise sources emanating from any agricultural
operation are exempt from the noise ordinance.”
RESPONSE TO APPEAL STATEMENT NO.2:
While noise sources emanating from any agricultural operation are exempt from the noise
standards of the Development Title, this project is a discretionary application and there are five
findings that must be made in the affirmative to approve the project. The Planning
Commissioners determined that Finding No. 5 could not be made in the affirmative because the
proposed use is not compatible with adjoining land uses and cited noise as a concern.
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APPEAL STATEMENT NO. 3:
In the appeal, the appellant states:
“…the consideration of compatibility with adjoining parcels was (a) influenced heavily
by Staff disapproval, which was based on a prior action of the Planning Commission
related to a much larger proposed project, and (b) not adequately investigated or
considered by Planning Staff or the Planning Commission for the much smaller Revised
Application.”
RESPONSE TO APPEAL STATEMENT NO.3:
The revised application was reviewed by Community Development Department staff and the
revisions were also referred to the original reviewing agencies and neighbors on January 26,
2016. While the revised project description involves a reduced number of roosters and it is
anticipated noise will be somewhat reduced, it does not fully resolve the noise issue. As a result,
the Planning Commission was not able to make the required findings and voted to deny the
revised project.
APPEAL STATEMENT NO. 4:
In the appeal, the appellant states:
“The Planning Commission failed to give proper weight to a petition signed by 52
persons…who reversed position and either became supporters of the Revised Application
and/or withdrew opposition to the same.”
RESPONSE TO APPEAL STATEMENT NO.4:
The Planning Commission received a copy of the original petition with 39 signatures in support
of the project with the Staff Report, and an updated copy of the petition with additional
signatures from the appellant’s attorney at the hearing held on March 17, 2016. However, several
of the neighbors in closest proximity were still in opposition to the revised project and the
Planning Commission voted to the deny the project due to the inability to make all of the
required findings in the affirmative.
APPEAL STATEMENT NO. 5:
In the appeal, the appellant states:
“There are only five parcels adjoining the subject property involved in the Site
Approval…All of the other residential and farm parcels on East Morse Road are not
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adjoining to the subject parcel. Adjacent perhaps, but not adjoining within the clear and
unambiguous meaning of Development Title Section 9-818.6 ‘Findings.’”
RESPONSE TO APPEAL STATEMENT NO.5:
A property owner directly adjacent to the property spoke in opposition to the project at the
Planning Commission meeting for the revised project description. A second neighbor with
property directly across the street from the subject site also spoke in opposition, and a third
neighbor to the northwest submitted a letter in opposition to the revised project description.
APPEAL STATEMENT NO. 6:
In the appeal, the appellant states:
“The conditions attached to the Revised Application appear to be excessive and related to
the original and First Application for a much larger commercial facility. Applicant
requests that, if its Revised Application is approved by the Board of Supervisors, a
review of the conditions imposed by the Planning Department be conducted to determine
those that are truly applicable to the smaller project described in the Revised Application.
RESPONSE TO APPEAL STATEMENT NO.6:
While the appellant states that the conditions are excessive, the appeal does not address any
specific conditions. This project was not approved by the Planning Commission and the
Community Development Department is recommending denial. However, if the Board of
Supervisors approves the project, draft conditions of approval are attached.
A legal ad for the public hearing was published in The Record on May 13, 2016. Public hearing
notices were mailed on May 11, 2016.
FISCAL IMPACT:
There is no General Fund Impact as a result of this application.
ACTION TO BE TAKEN FOLLOWING APPROVAL:
None.
Sincerely,
KERRY SULLIVAN
DIRECTOR
Board of Supervisors
CDD - Appeal by Thuy Phan
Page 6
KS:MA:ss
DEVSVCS/SONIA/BOARD LETTERS/PA-1500057 (SA)
Enc.: Resolution; Draft Conditions of Approval; Appeal; Draft P.C. Minutes; Staff Report;
Initial Study
c:
Thuy Phan
Reviewed by County Administrator’s Office:
Reviewed by County Counsel’s Office: