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HomeMy WebLinkAboutPlanning Comm Reports/1992/07/22 (7) City Planning commission Agenda Item for Meeting of July 22, 1992 3. PUBLIC HEARING; PCA-92-03 - Consideration of an amendment to the Municipal Code to reauire a conditional use permit for sales of alcoholic beveraaes in the C-N zone - city Initiated A. BACKGROUND On April 21, 1992, in consideration of a report on alcohol sales facilities in C-N Neighborhood commercial zones, the city Council directed staff to return with a proposed ordinance outlining an application procedure for alcohol sales in the C-N zone which would require approval by the city and input by the Police Department, with approval being subsequently placed on the consent calendar for the Council's next regularly scheduled meeting. Concern about alcohol sales in the C-N zone was raised by Council in conjunction with a zoning text amendment and conditional use permit application by Texaco to redevelop an existing service station at 1498 Melrose Avenue by adding a car wash and mini-market with sales of beer and wine. Several surrounding business owners and residents expressed opposition to Texaco's proposal based in part on what they perceived as an over-concentration of alcoholic sales facilities and the resulting impact on crime in the area. The city Council called the Texaco application forward on appeal and, at the applicant's request, delayed the matter until after the resolution of the alcohol issue. Please refer to the attached April 21 staff report to Council. The report not only discusses the issue of alcohol sales in the C-N zone, but also the issue of concurrent sales of alcohol and gasoline. The Council chose not to pursue any specific restrictions or standards with respect to the concurrent sales issue. The Environmental Review Coordinator has determined that the proposed amendment is exempt from environmental review as a minor alteration in land use, in accordance with section 15305 Class 5 of the CEQA guidelines, or Class 5F of the city of Chula vista Environmental Review Procedures. city Planning commission Agenda Item for Meeting of July 22, 1992 Page 2 B. RECOMMENDATION Adopt a motion recommending that the city council amend the Municipal Code as shown in Exhibit A. C. DISCUSSION The earlier staff report on the alcohol sales issue favored continued reliance on the review procedures of the State Department of Alcoholic Beverage Control. A local process, however, would provide an additional degree of oversight and control which is consistent with the purpose and intent of the C-N zone to provide for convenience goods and services within residential neighborhoods in a manner which is compatible and complementary to the surrounding residents. The proposed ordinance provides for a Zoning Administrator conditional use permit with a public hearing for all new alcohol sales facilities in the C-N zone. In addition to the normal findings required for a CUP, and in consultation with the Police Department, the zoning Administrator would also be required to find that the facility would not result in an overconcentration of such facilities in the neighborhood. The city council would be informed of the Zoning Administrator's decision, and the Councilor other interested party, could appeal the matter directly to the city council for public hearing. COUNCIL AGENDA STATEMENT ITEM TITLE: Item Meeting Date 4/21/92 PCM-92-14: Alcohol Sales Facilities in CoN Zones SUBMITTED BY: Director of Planning Chief of Police REYI EWED BY: City Manager (4/5ths Vote: Yes___No-X-) Council Referral No. Z2!l On February 11, 1992, Counc il directed the Pl anni ng Department, with assistance from the Pol ice Department and input from the State Department of Alcohol ic Beverage Control (ABC), to prepare 3 report and recommendation on the number of alcohol sales facil ities that should be allowed within C-N (Neighborhood Commercial) zones. Some concern has al so been expressed with concurrent sales of gasoline and alcohol, particularly within the CoN zone. This report addresses both issues. REC~ENDATION: That Counc i 1 not adopt any 1 oca 1 standards wi th respect to the concentration or concurrent sales of alcohol, but rather continue to rely on the State Department of Alcoholic Beverage Control process and procedures to regulate the establishment of alcohol sales facilities in the CoN zone. BOARDS/COMMISSIONS RECOMMENDATION: returned for its consideration Commission, The Counc i 1 directed that the report be prior to consideration by the Planning DISCUSSION: These issues came to the Council's attention because of neighbornood opposition to a pending conditional use permit application by Texaco to redevelop an existing service station by adding a car wash and mini-market (with alcohol sales) at the northwest corner of Orange and Melrose Avenue. The oppos it i on centers around t ra ffi cis sues and concern with a percei ved over-concentration of alcohol sales facilities in what is thought to be a high crime area. Council has called the Texaco appl ication forward on appeal and will hear the matter following resolution of the issues discussed in this report. The CoN zone presently permits liquor stores (off-sale) as a matter of right, but prohibits on-sale facilities such as bars and cocktail lounges. A restaurant with on-sale liquor requires a conditional use permit. The sale of gasoline is not permitted as a matter of right in any zone, but requires a conditional use permit in all commercial or industrial zones, including the CoN zone. A car wash is allowed by conditional use permit in the CoN zone as a result of a recently approved ordinance. Texaco was required to file for a conditional use permit because of its proposal to redevelop the property (modification of an existing conditional use), and add a car wash. As noted above, a mini-market with or without 1 iquor sales is presently permitted as a matter of right and would not have independently required a CUP. Page 2, Item Meeting Date 4/21/92 Over-concentration of liauor facilities in the C-N zone State law makes the issuance of a license for premises to engage in the sale of alcoholic beverages the function of ABC, not cities. The State's control of the field, however, is not exclusive of all City interests. A City may prohibit alcohol sales in a particular zone, or may require a conditional use permit, and the ABC is obligated to honor these local zoning provisions. In addition to a complete ban within a zone, a valid zoning ordinance could allow off-sale facilities subject to legitimate "police power" requirements, such as reasonable anti-concentration provisions similar to those applicable to "adult uses" (distance requirements from residential, school, park, church, playground, or other such uses). A representative of ABC met with staff to describe its licensing process. The ABC evaluates a 1 i cense app 1 i cat i on based upon the moral character of the applicant, general locational factors such as zoning, and Rule 61.3 which involves the issue of "over-concentration" in "high crime areas." The applicant may not be a felon or a habitual drunk. Police officers and liquor wholesalers are also prohibited from holding a license. Additionally, the source of funds for the proposed facility is investigated to ensure that the actual owner is not one of the above. The appl icant is instructed to contact the City Planning Department, obtain information as to the specific zoning at the premises, as well as City requirements for alcohol sales in that zone, and report the information back to the ABC. If the City requires a conditional use permit for the sale of alcoholic beverages, the ABC immediately suspends investigation of the license application until provided proof that the CUP has been granted. If the City does not permit alcohol sales in that zone, ABC would strictly adhere to the City's requirements and deny the application. ABC also has its own locational criteria. These provide that off-sale premi ses shall not be located closer than 200 ft. to a res i dence, church, school or playground. If the applicant can cite reasons of public convenience and necessity and no adverse impact on the neighborhood, the requirement may be modified. ABC exercises its discretion so that a license to sell alcohol will not be granted within 100 ft. of a sensitive land use if a resident/property owner objects. Note: notices of the 1 icense appl ication are mailed by the applicant (and confirmed by affidavit to ABC) to all properties within 500 ft. of the site, and these property owners are given 30 days within which to protest the issuance of the license. A special circumstance exists when an appl ication falls within a "Rule 61.3" area. These areas exhibit what ABC defines as an over-concentration of alcohol sales facilities combined with a high crime rate. The area of measurement is the census tract. An over-concentration of 1 icenses (this is figured separately for on-sale and off-sale facilities) occurs when the ratio of licenses to population for the census tract exceeds the ratio for the County as a whole. A high crime rate census tract is one which exhibits a crime rate 20% or greater than the average crime rate for the City as a whole. Page 3, Item Meeting Date 4/21/92 A copy of all applications Is forwarded to the Police Department and City Council (via the City Clerk) for review and comment. If a license application Is within a Rule 61.3 area (the over-concentration and high crime rate statistics are predetermined and on file at ABC for use In screening applications), the ABC will alert local authorities. This Is done by notation on the application, as well as by a follow-up telephone call to the Police Department to ensure that these particular applications are not overlooked and thus receive the appropriate scrutiny. A protest by local authorities will result in an Investigation by ABC, This Includes a meeting with the Police Department to determine if the Issue(s) can be resolved by way of ABC-imposed conditions on the license. Examples of such conditions could be a 1 Imitation on hours or a restriction on the size of alcohol conta i ners (see attached memo and example protest 1 etter from the Police Department). If the issue(s) cannot be resolved to the satisfaction of local authorities, ABC will deny the application for the license, and the applicant Is entitled to an administrative hearing. Based on the evidence, the hearing officer could recommend that ABC either Issue or deny the permit. According to the Po 1 ice Department, however, a 1 i cense woul d 1 i ke 1 y not be issued over its protest. The site at Orange and Melrose Avenues is within a census tract where the optimum number of licenses is eight and the number of licenses already issued is eight. Therefore, the issuance of a license to Texaco would exceed the optimum number and result in an "over-concentrated" condition. However, the area Is not a high crime area, and consequently does not fall under Rule 61.3 (which involves over-concentration and a high crime rate). Although the City could still object and force a hearing as noted earlier, the Police Department reports that it does not foresee a probl em with the issuance of a license to the Texaco mini-market, and it does not recommend that the City protest license issuance in this case. In conclusion, the City would appear to have three options with respect to alcohol sales in the C-N zone: (I) totally prohibit alcohol sales in the zone, which would raise the issue of creating a significant number of nonconforming alcohol sales facilities which presently exist in C-N zones; (2) require a conditional use permit and analyze each application on a case-by-case basis, or (3) continue to rely on the existing ABC process and procedures. The staff reconunendation is to continue to rely on the 'ABC process. There does not appear to be a problem with alcohol sales in the C-N zone. Alcohol is a convenience item which Is normally available In all convenience markets, and convenience markets are the mainstay of the C-N zone. Also, the ABC process i nvol ves not ice and opportunity for input/object i on from the surrounding neighbors as well as from the City Council and Pol ice Department. An analysis of concentration of facilities and crime rate is also part of the ABC process to assist the Pol ice Department in Identifying potential problem locations. Page 4, Item Meeting Date 4/21/92 Concurrent sales of alcohol and aasoline The issue of concurrent sales of alcohol and gasoline has been raised by many localities since the advent of the mini-market in the mid 1970's. Although it is probably fair to say that the vast majority of alcohol purchases are made in conjunction with an automobile trip -- whether that be to the grocery store, 1 i quor store, or mi n i-market -- to some observers there appears to be something inherently unsettl ing about purchasing liquor and gas at the same time. The City Attorney reports that attempts by municipalities to control or prohibit the concurrent sale of liquor and gasoline resulted, in 19B7, in a new State law (Business and Professions Code Section 23790.5) which makes it cl ear that a 1 oca lord i nance tota 11 y proh i bit i ng the concurrent sale of beer and wine for off-premise consumption and motor vehicle fuel, where those uses are otherwise lawful in the same zone, is prohibited by State law. The City Attorney further reports that the law would not prohibit a city from requiring a conditional use permit for concurrent sales if the standard by which the conditional use permit is granted, denied or conditioned constitutes an appropri ate health, sa fety, or general welfare standard, and the ordi nance contains specified due process provisions. Thus, if the denial or conditional approval of a conditional use permit is based on some articulated health, safety or general welfare standard other than a blanket prohibition against concurrent sale, the ordinance could survive legal challenge. Although the City coul d therefore adopt a cond it i ona 1 use permi t process to address the issue of concurrent sales on a case-by-case basis, according to both the Police Department and ABC, there is no discernable connection between the concurrent sale of alcohol and gasoline and the incidence of driving under the influence, traffic accidents, or any other health or safety issue. As noted above, the purchase of alcohol is generally associated with an automobile trip, and the purchase of gasol ine is only incidental to the process. In conclusion, the staff recommendation is not to pursue a conditional use permit process for concurrent sales. Any potential problem with respect to alcohol sales, whether it be in an independent or concurrent sales context, appears to be adequately addressed through the existing ABC process. FISCAL IMPACT: None. WPC 0231p Exhibit A Chapter 19.34 C-N NEIGHBORHOOD COMMERCIAL ZONE 19.34.020 Permitted uses. 1. Liquer store (paoJmg-e, off Gale only); 19.34.030 Conditional uses. ~ Establishments contained in the list of permitted uses above. but which include the sale of alcoholic beveraqes for off-site use or consumption. in accordance with the procedures in Section 19.14.030: ~ Liquor store (packaqe, off sale onlv} , in accordance with the procedures in section 19.14.030. Chapter 19.14 ADMINISTRATIVE PROCEDURES, CONDITIONAL USES AND VARIANCES 19.14.030 Zoning administrator - Actions authorized without public hearing. A. Conditonal use permit: The zoning administrator shall be empowered to issue conditional use permits, as defined herein, in the following circumstances: ~ Establishments that include the sale of alcoholic beveraqes for off-site use or consumption. located in the C-N zone. The zoninq administrator shall hold a public hearinq in accordance with sections 19.14.060-19.14.090 upon qivinq notice thereof in accordance with sections 19.12.070-19.12.080. A conditional use permit shall not be qranted unless the Zoninq Administrator finds, based on substantial evidence in view of the whole record, that all of the facts required bv section 19.14.080 exist, and that approval of the permit will not result in an overconcentration of such facilities in the neiqhborhood. The Police Department shall testifv at the hearinq reqardinq the overconcentration issue. The citv Council shall be informed of the decision on each such permit bv the city Clerk when the decision is filed in accordance with section 19.14.090. The decision of the Zoninq Administrator mav be appealed directlv to the citv Council. rather than the Planninq Commission, within ten davs after the decision is filed with the citv Clerk. as provided in section 19.14.100. If appealed within the time limit, said appeal shall be considered in a public hearinq conducted bv the citv Council. in the same manner as other appeals pursuant to sections 19.14.130, except that the Council must written findinqs required of the Zoninq herein. in order to qrant the permit. 19.14.120 and make the same Administrator