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Council Agenda - City of BurbankTuesday, August 17, 2004Agenda Item - 1 |
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Council Agenda - City of BurbankTuesday, August 17, 2004Agenda Item - 1 |
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PURPOSE
To consider an appeal of the Planning Board's decision denying Conditional Use Permit (CUP) #2003-28, a request by Bob Kashani to allow the sale of beer and wine for off-premise consumption for an existing Chevron gas station and food mart at 3701 Riverside Drive.
BACKGROUND
Zoning: The subject property is zoned MDC-3 (Media District General Business). Adjacent and abutting properties are MDC-2, MDC-3. Further to the South and North across the Ventura Freeway are properties zoned MDR-4 (Residential Multiple Medium Density) (Exhibit A-1).
General Plan Designation: The subject property is located in the Riverside Drive Corridor of the Media District Specific Plan Area, which designates the property for commercial use. The Riverside Drive Corridor is intended to serve the retail/service needs of both the Media District business community and the residential neighborhood.
Property Dimensions: The property is irregularly shaped and is approximately 17,600 square feet in size according to the assessor's parcel map.
Street Classifications: Riverside Drive and Hollywood Way are classified as Major Arterial Streets with a one hundred (100) foot right-of-way (10-foot sidewalk/parkway).
Current Development of the Site: The property is presently improved with a Chevron gasoline station, a one-story food mart, a utility building, and two detached storage buildings. The property is served by 13 parking spaces. Originally, a 1,043 square foot service station and canopy were constructed on the site in 1959. Both were later demolished in January 1989 to make room for a new 953 square foot prefabricated food mart and a 90 square foot utility building. Upon review of the building records, there are no building permits issued for both the seventy-seven (77) square foot or the one hundred and fifty-nine (159) square foot detached storage buildings on the north side of the subject property. A building permit is not required for a detached structure under 120 square feet with no utilities. As such, the 159 square foot storage building will require a building permit because of the size and because it has utilities connected to the storage building.
Project Description: The applicant requests a CUP to allow the sale of beer and wine for off-site consumption in conjunction with the existing gasoline station and full service food mart (Exhibits B-1 through B-5). The applicant is proposing to sell beer and high end table wines between the hours of 7 a.m. and 2 a.m. The area the alcoholic beverages will be kept at is limited to three cooler doors with six shelves each and one wine rack. The applicant proposes to conduct beer and wine sales inside the food mart only; no sales will be conducted outdoors. The facility currently operates 24 hours a day, 7 days a week. There are no residentially zoned properties in the abutting or adjacent area of the subject property.
Municipal Code Conformance: BMC Sections 31-502 and 31-1116 require approval of a conditional use permit for the sale of alcoholic beverages for off-site consumption. There are no active code enforcement cases regarding the subject property. However, there was a complaint filed in August 2003 regarding shopping carts full of cardboard on the subject property. The complaint was investigated by the License and Code Division with no evidence found on the property.
The applicant has applied to the State of California Department of Alcoholic Beverage Control (ABC) for approval of an Off-Sale Beer and Wine License (Type 20). This type of license allows sale of beer and wine only for off-premises consumption. Approval of the ABC license is pending approval of the subject CUP. Additionally, the subject property is located in a Census Tract that has an over-concentration (per ABC and State law) of off-sale licenses. This means that ABC requires that the City make a finding of Public Convenience or Necessity, in addition to approving the CUP, before the ABC license will be issued.
Compliance with Municipal Code Requirements
Public Correspondence: Apart from the appeal application and letter from the appellant (Exhibit B-4), the appellant previously provided staff with over 250 signatures from store patrons in support of providing beer and wine at the Chevron Food Mart along with a letter from the appellant explaining the need for beer and wine at this business (Exhibit B-5). No other correspondence in support or opposition of this application was received prior to the preparation of this report.
ANALYSIS
Surrounding Properties: Adjacent properties along Riverside Drive are zoned MDC-2 and MDC-3. A freeway on-ramp to the Ventura (134 East) Freeway is immediately west and north of the subject property, while a car wash facility (Lakeside Car Wash) occupies the property to the south across Riverside Drive (Exhibit A-1). The Ventura Freeway (134 East) is directly north and east of the subject property. Adjacent properties to the west are zoned MDC-3 and are improved with office buildings.
Operational Characteristics: The existing Chevron gasoline station and full service food mart operates similar to a typical retail use. According to the applicant, deliveries of merchandise for the food mart occur between 10:00 a.m. and 11:00 a.m. Deliveries are received from various vendors using delivery vehicles ranging from delivery vans to eighteen-wheelers. As a result of the proposed change to include the sale of beer and wine in an existing food mart, no noise impacts are anticipated beyond what normally occurs for this type of use. The products are delivered directly into the store or placed immediately into the detached storage buildings located east of the food mart. Staff does not anticipate that the amount of trips generated by the addition of beer and wine sales will result in a significant impact on traffic volumes in the surrounding area. However, as stated by the Planning Board, there is a concern that the addition of beer and wine sales will intensify the uses already on the lot and add to the impact of vehicular circulation that already exists (Exhibit D-2).
Gas Stations and Alcohol California Business and Profession Code Section 23709.5 prohibits a local agency from requiring a conditional use permit for a gas station with alcohol sales unless a conditional use permit is required for either a gas station and/or alcohol sales at that location. The section also establishes a number of other criteria related to the approval or denial of such uses. In this particular case, the sale of alcohol for off-premises consumption requires a conditional use permit. Thus, the requirement for a conditional use permit does not violate State law.
Under California Business and Profession Code Section 23790.5 (c), a local agency can deny permission, or grant conditional permission, to an individual applicant to engage in the concurrent retailing of motor vehicle fuel with beer and wine for off-premise consumption pursuant to a valid conditional use permit ordinance that contains all of the following:
However, the approval of the conditional use permit to allow the concurrent sale of motor vehicle fuel with beer and wine for off-premises consumption shall include the following conditions:
Should the City Council approve this application, the above requirements should be incorporated in the conditions of approval. However, should the City Council deny this application, the findings for denial must be based on substantial evidence.
Alcohol Sales:
The ABC establishes a threshold for licenses issued in a census tract. The threshold is determined by the census tract population or the crime rate if that rate is 20% or more above the average. In the City of Burbank, the crime rate is under 20% of the average and therefore, the threshold is based on population.
The subject business has applied to the California Department of Alcoholic Beverage Control (ABC) for a Type 20 license, which permits the sale of pre-packaged beer and wine for off-premises consumption. The subject property is located in Census Tract 3116, where ABC has determined that five is the threshold for off-sale licenses, based on residential population. Seven off-sale licenses are currently in place in the Census Tract (Exhibit A-3). Therefore, this application requires the City to make a finding of public convenience or necessity in addition to the conditional use permit findings.
Existing Off-Sale Licenses in Census Tract 3116
The threshold for over-concentration established by ABC, while a valuable guideline, is determined directly by population and does not take into account zoning or general plan designations. For instance, the ABC has established over-concentration thresholds for census tracts that are entirely zoned for residential uses, where retail alcohol sales are a prohibited use. Furthermore, the General Plan and Zoning Code encourage concentration of commercial activity, as opposed to an even dispersal among the residential neighborhoods.
Staff believes that a finding of public convenience or necessity cannot be made in this case. The nearest liquor stores are approximately a half mile from the subject property while the nearest supermarket is approximately one mile from the subject property. These businesses already serve the needs of the Media District business community and residential neighborhoods in vicinity to the Chevron Food Mart. They provide similar goods to the food mart and in most cases offer a larger volume and selection of goods that can be purchased since most have the retail space or specialize in providing these goods to their patrons. There are currently seven coolers in the Chevron Food Mart that hold various beverages and other refrigerated products but with the possible replacement of three coolers with beer and wine, a significant portion of the cooler space will be eliminated. This in turn, will limit the variety and number of refrigerated beverages that the food mart patrons will be able to select and purchase. As such, the area designated for the sale of beer and wine will reduce the variety of goods being sold at the food mart and could result in patrons driving to other stores.
Department Comments: The subject application was routed to City departments and divisions for review and comment. The Police Department has submitted a memorandum recommending several conditions to ensure continuing compliance with City Codes and ABC regulations, should the subject application be approved. They include revocation of the CUP if any convictions for any crime involving sales of alcoholic beverages to a minor at any time[1]. Also, the Police Department requested that, if approved, the applicant be required to post at least three (3) signs in the parking lot requesting their customer to refrain from consuming any alcoholic beverages on their property (Exhibit C-1). No other City departments or divisions submitted comments or recommended conditions or restrictions other than existing code requirements.
Planning Board Public Hearing On June 14, 2004, the Planning Board held a properly noticed public hearing on the subject applications. The applicant, Bob Kashani, along with Sherrie Olson from the Permits and Licenses Resource Center, were present at the hearing. Mrs. Olson addressed the Board and stated that the CUP to sell beer and wine for off-premise consumption for an existing Chevron gas station/food mart was a reasonable request. She added that it meets the public convenience and necessity finding and is frequented by local businesses such as the studios. During Board deliberations, Board Members stated they could not make the public convenience finding (Exhibit D-1). Chair Taylor was concerned with people coming to purchase alcohol with the ample parking provided on the subject property and could not support the application as well. She also stated that there were many uses on the site already and this additional retail sales use would increase the impact on circulation on the site and in the area. Board Member Humfreville supported the application and cited the gas station/ food mart business is a tough business operating on tight margins. The Board ultimately denied the CUP application on a vote of four to one with Board Member Humfreville voting to approve the project (Exhibit D-2).
Environmental Review: This project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1 Exemption) of the State CEQA Guidelines. This exemption pertains to projects utilizing existing facilities with negligible or no expansion of use (Exhibit E).
CONCLUSION
It is staff�s assessment that the six findings required for approval of a conditional use permit can be made but the finding of public convenience and necessity cannot be made for this project.
REQUIREMENTS FOR GRANTING A CONDITIONAL USE PERMIT
(1) The use applied for at the location set forth in the application is properly one for which a conditional use permit is authorized by Chapter 31 of the Burbank Municipal Code. Burbank Municipal Code Sections 31-502 and 31-1116 allow for the sale of alcoholic beverages for off-premises consumption upon the granting of a conditional use permit.
(2) The use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located. The MDC-3 zone is intended to provide opportunities for a variety of commercial activities. Alcohol sales are a form of retail sales that are consistent with the purposes of the zone and will not impact the ability of other uses in the zone to conduct business.
(3) The use will be compatible with other uses on the same lot, and in the general area in which the use is proposed to be located.
The Planning Board is of the opinion that there are too many uses currently on the subject property which is located in an area with streets that have heavy commuter traffic. They include gasoline sales, the sale of various products from the food mart, and the patron's use of the air and water service. The addition of beer and wine sales will intensity the uses already on the lot while adding to the vehicular circulation that already exists with the sale of gasoline. As such, the site does not function well with the proposed use and is not compatible with the other uses and with the general area. However, staff is of the opinion, the proposed use of offering beer and wine in addition to its regular food mart items is compatible with surrounding commercial and office uses. As such, the addition of beer and wine will not alter the existing operation in ways that will render the overall use incompatible with other surrounding uses.
The appellant is of the opinion that Burbank promotes a business-friendly environment that would allow the subject business to thrive and grow within the community. That is why the appellant believes that given the business opportunity to sell beer and wine for off-premise consumption at the existing gas station/food mart, they would not let the community down and will promote strong management in order to make for a good neighbor.
(4) The site for the proposed use is adequate in size and shape to accommodate the use and all of the yards, setbacks, walls, fences, landscaping, and other features required to adjust the use to the existing or future uses permitted in the neighborhood. Staff believes the site is adequate to accommodate the subject business, including the sale of beer and wine in conjunction with the sale of gasoline. There are no physical changes proposed to the site. The required parking for the use is three (3) parking spaces. The applicant is providing thirteen (13) parking spaces.
(5) The site for the proposed use relates to streets and highways properly designed and improved to carry the type and quantity of traffic generated or to be generated by the proposed use. Staff believes the existing transportation infrastructure is adequate to support the type and quantity of traffic generated. It is staff�s assessment that the subject business, even with the inclusion of beer and wine in its product line, will generate similar amounts of traffic as the commercial retail uses permitted by right in the zone. The site is served by Hollywood Way and Riverside Drive, two major arterial streets.
(6) The conditions imposed are necessary to protect the public health, convenience, safety, and welfare. Staff is not recommending approval of this application, so no conditions of approval are included in the report. If the City Council decides to approve the application, conditions should be imposed to reduce the potential negative impacts of the project.
Finding of Public Convenience or Necessity
The public convenience will be served by the issuance of a Department of Alcoholic Beverage Control Type 20 license (sale of beer and wine for off-premises consumption) to the applicant for the subject location. The Planning Board and staff are of the opinion that due to the proximity of the subject property to other businesses, the nearest being within a half mile, with ABC licenses to sell alcoholic beverages for off-premises consumption that there is an inability to make the findings of public convenience or necessity. There are already seven businesses in place ranging from a liquor store to a supermarket that provide these services to patrons in this Census Tract. For commuters entering or exiting the freeway, it can be just as convenient for them to purchase their beer or wine from a store near their home as it would be from this service station.
The appellant is of the opinion that the gas station/food mart currently provides a convenience of parking and a pleasant atmosphere to shop in and fill up your vehicle. By allowing the sale of beer and wine for off-premise consumption at the subject property, the appellant believes it further adds to the one stop convenience for the customer since the nearest liquor store is 1/2 mile down the street and the nearest market is 1 mile away. RECOMMENDATION
Staff recommends that the City Council uphold the Planning Board decision and deny the appeal of Conditional Use Permit #2003-28.
LIST OF EXHIBITS Exhibit A-1 Zoning and Fair Political Practices Act Compliance Map A-2 Public Notice A-3 A Map of the Existing Businesses with a Type 20 (Beer and Wine) and Type 21 (Beer, Wine, Liquor) within Census Tract 3116 Exhibit B-1 Conditional Use Permit Application Package B-2 Description of the Business and Hours of Operation B-3 Chevron Food Mart (Exterior and Interior) Photos B-4 A Letter to the Planning Board by the applicant along with signatures of people in support of the application. B-5 Appeal to Planning Board with attached letter Exhibit C-1 Memorandum from the Police Department C-2 Memorandum from the Public Works Department Exhibit D-1 Minutes of Planning Board Public Hearing D-2 City of Burbank Planning Board Resolution No. 2937 Exhibit E Public Notice of Environmental Decision
[1] The original Police Department recommendation was modified based on the recommendation of the City Attorney's Office to make the condition consistent with the law.
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