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HomeMy WebLinkAbout20 - PH-1 - Appeal of Planning Application PA-14-39 - 4/21/2015CITY COUNCIL AGENDA REPORT MEETING DATE: APRIL 21, 2015 ITEM NUMBER: PH -1 SUBJECT: APPEAL OF PLANNING APPLICATION PA -14-39 FOR A CONDITIONAL USE PERMIT TO CONSTRUCT A CONVENIENCE STORE WITHOUT ALCOHOLIC BEVERAGE SALES AND WITH A VARIANCE FROM THE LANDSCAPED SETBACK REQUIREMENT 2281 NEWPORT BOULEVARD (UNION 76) FROM: PLANNING DIVISION/ DEVELOPMENT SERVICES DEPARTMENT PRESENTATION BY: MINOO ASHABI, PRINCIPAL PLANNER DATE: APRIL 8, 2015 FOR FURTHER INFORMATION CONTACT: MINOO ASHABI (714) 754-5610 minoo.ashabi@costamesaca.gov RECOMMENDATION 1. UPHOLD the Planning Commission's approval of the proposed convenience store, including a specific requirement for a Buyer's Notice related to the restriction on alcoholic beverage sales in the new convenience store. 2. REVERSE the Planning Commission's decision and DENY the proposed project. PROJECT DESCRIPTION The proposed project is a CUP and Variance request for a new convenience store: • Planning Application PA -14-39 to allow construction of a 1,125 square foot convenience store in conjunction with the operation of the fuel station. The project also includes the following: 1. Conditional Use Permit for construction of a new convenience store; and 2. Variance to deviate from the landscaped setback requirements for encroachment of the required trash enclosure and parking area (20 feet required; 7.5 feet proposed). The project also includes the following condition for transparent disclosure: • Condition No. 6: A buyer's notice shall be recorded on the property prior to the issuance of building permits, to inform future property owners of the prohibition of sales of alcoholic beverages. Applicant shall submit to the Planning Division a copy of the legal description for the property, and either a lot book report or current title report identifying the current legal property owner so that the document may be prepared. The form and content of the buyer's notice shall be approved by the City Attorney's office and Development Services Director. PLANNING APPLICATION SUMMARY Location: 2281 Newport Boulevard APN 419-112-02 Application Number: PA -14-39 Request: Demolish an existing cashier kiosk and construct a new 1,125 SF convenience store. SUBJECT PROPERTY: Required/Allowed SURROUNDING PROPERTY: Zone: C2 North: Car wash General Plan: General Commercial South: Newport Boulevard/55 Freeway Lot Dimensions: Triangular East: Newport Boulevard/55 Freeway Lot Area: 12,600 SF West: Commercial Office Building Existing Development: Gasoline service station with a cashier kiosk. DEVELOPMENT STANDARD COMPARISON C2 Required/Allowed Proposed/Provided Minimum Lot Area 12,000 12,600 Minimum Lot Width 120 149 Maximum Floor Area Ratio (High Traffic .20 2,520 SF .09 1,125 SF Maximum Building/Structure Height 2 stories/30 ft. 1 story/22 ft.- 8 in. Building Setbacks: Front Newport Boulevard 20 ft. 46 ft.' Side Fairview Road 20 ft. 7 ft. 6 in. 2 Rear interior 0 ft. 0 Landscape Setbacks: Fairview Road 20 ft. 7'6" Newport Blvd. 20 ft. 15 ft. Landscaping 25 SF/Parking Space 150 SF 1,900 SF Parking 4 spaces per 1,000 sq. ft. for convenience store 5 Min. Standard 5 5 0 0 Total: 5 6 Final Action City Council CEQA Review Exempt, Class 3, New Construction of Small Structures ' The location of the existing canopies (2 feet from the property lines) was approved under ZE-82-143. 2 The width of right-of-way on Fairview Road is 50 feet. BACKGROUND Background/ Prior Entitlements Zoning Exception ZE-82-143 On March 28, 1983, the City Council approved the Conditional Use Permit for the remodeling of the gas station with a variance for the setbacks, landscaping and parking. The approval included demolition of the existing building with two service bays and construction of a 170 square foot kiosk. A minimum of six parking spaces were required and four were provided, one of which encroached into the required setback on Fairview Road. The landscaping along the required nine -foot right of way dedication fronting Fairview Road was allowed in lieu of the required 20 -foot landscape setback. Because of the number and location of the driveways along Newport Boulevard, only 20 feet of the required setback along that frontage was landscaped (approximately 400 square feet). The current configuration of the site is consistent with this entitlement. Planning Application PA -96-03 On February 20, 1996, the City Council approved a Conditional Use Permit to construct a mini -mart (convenience store), and remodel the existing gas station. The approval to allow the concurrent sale of alcoholic beverages and motor vehicle fuel was conditioned on obtaining an existing license within the City of Costa Mesa. Construction plans were submitted for plan check; however, building permits were not obtained. The CUP approval expired on February 20, 1997. Planning Application PA -05-28 On October 24, 2005, a Conditional Use Permit (PA -05-28) was denied without prejudice by the Planning Commission. The applicant sought approval for the construction of convenience store with concurrent sales of alcoholic beverages. The request also included variances for parking and setbacks. At the meeting, the applicant withdrew the request for approval of alcoholic beverage sales and indicated that off-site parking could be obtained. The applicant was asked to redesign the parking layout, secure an agreement for off-site parking, and resubmit the application for reconsideration at a later date. The application was not refiled. Zoning Application ZA-09-16 On May 7, 2009, the Zoning Administrator denied a minor conditional use permit to allow outdoor beverages dispensers. This was intended to legalize a code violation for displaying beverages as well as other miscellaneous products, like gasoline additives and motor oil, outside the cashier's kiosk. On May 14, 2009, David Cabrinha, the applicant, filed an appeal of the Zoning Administrator's decision. On September 14, 2009, the Planning Commission upheld the Zoning Administrator's decision and denied the minor conditional use permit to legalize four beverage dispensers and display of other miscellaneous items outside the cashier booth. The applicant failed to remove the coolers and did not submit conceptual plans that would screen the dispensers as an integral part of the existing cashier's kiosk. The coolers were eventually removed but a beverage dispenser was installed next to the kiosk. Planning Commission's Action The Planning Commission held a public hearing on February 9, 2015. The request included a Conditional Use Permit for construction of a new convenience store and Variance to deviate from the landscaped setback requirements for encroachment of the required trash enclosure and parking area (20 feet required; 7.5 feet proposed). The Planning Commission staff report and meeting minutes can be found at: http://www.costamesaca.gov/ftp/planningcommission/agenda/2015/2015-02-09/PH-3.pdf //www.costamesaca.aov/modules/showdocument.asax?documentid=17307 Conditional Use Permit Zoning Code requires approval of a conditional use permit for establishment of a new convenience market. In the applicant's letter, it was indicated that the proposed project did not involve sales of alcoholic beverages. The applicant had also reiterated at the hearing that he was not seeking an off -sale ABC license as part of this application. Consistent with previous actions by Planning Commission and because of proximity of the subject site to other off -sale licenses; the proposed convenience market was approved on a 5-0 vote with the following two conditions of approval prohibiting sales of alcoholic beverages and a buyer notification: • To memorialize and reiterate the applicant's project description: Condition No. 5: Sales of alcoholic beverages shall be prohibited. • To provide transparent disclosure to future buyers: Condition No. 6: A buyer's notice shall be recorded on the property prior to the issuance of building permits, to inform future property owners of the prohibition of sales of alcoholic beverages. Applicant shall submit to the Planning Division a copy of the legal description for the property, and either a lot book report or current title report identifying the current legal property owner so that the document may be prepared. The form and content of the buyer's notice shall be approved by the City Attorney's office and Development Services Director. Variance from Landscape Setbacks The applicant intends to demolish the existing kiosk and construct a 1,125 square foot convenience store in its place. The proposal also includes the in-place reconstruction of the canopies. A variance was granted for reduced landscaped setbacks for the canopies due to the location of the fuel islands and points of ingress and egress. The new canopies feature mission tile roofs and finishes that match the convenience store. The proposed site plan takes into account the irregular shape of the site; however, the proposed trash enclosure and one of the parking spaces will encroach into the landscape setback along Fairview Road and Newport Boulevard. The new trash enclosure is proposed at 8 -foot six -inches from the property line along Fairview and one of the parking spaces is encroaching approximately 5 feet into the 20 -foot landscape setback along the Newport Boulevard frontage. The site currently contains minimal landscaping at the corner and along Fairview Road. With the proposed site plan, additional landscaping will be provided at the southerly corner of the site and at the perimeter of the three parking spaces along the rear. The proposed site plan results in two encroachments into the perimeter setback. • Fairview Road — the new trash enclosure is proposed at 7'- 6" from the public right- of-way • Newport Boulevard — one parking space is proposed at 15 feet from the public right-of-way. The C2 development standards (CMMC Section 13.44), require a minimum 20 foot setback for main buildings and accessory structures along public streets. The Zoning Code requires four parking spaces per 1,000 square feet of floor area and a minimum of five parking spaces for retail establishments. Since the proposed building is 1,125 square feet, a minimum of six parking spaces are required. Six parking spaces are proposed with three provided along the east side of the building, two parallel to the building, and one ADA parking stall along the west side of the building. One of the parking spaces encroach into the setback by approximately 5 feet, providing 15 feet of landscaping along Newport Boulevard. Sufficient space is provided for backing out and turning movements within the site. The Transportation Division reviewed the site plan and has no objections to the site configuration. Appeal of Planning Application The City Council hearing is a de novo hearing in which the City Council may consider the project in its entirety. Because the request involves both a CUP and Variance, Council may consider all aspects of the proposed convenience store and is not required to limit the discussion to the appellant's stated issues with the conditions of approval. An appeal was filed by the applicant on February 17, 2015. The appeal requested removal of Condition No. 6 noted above. The applicant is concerned about disclosing to future buyers that the Conditional Use Permit for the convenience store includes a prohibition on the sale of alcoholic beverages. The applicant also noted that recordation of a buyer notification will hinder the applicant's ability to negotiate with oil companies and financial institutions for future financing that could be detrimental to the business operations (Attachment 3). Justifications for Denial of Request to Strike Condition of Approval No. 6 Pursuant to Title 13, Section 13-29(g), Findings, of the Costa Mesa Municipal Code, the Planning Commission found that the evidence presented in the administrative record substantially met specified findings. The Planning Commission findings for the CUP and Variance are provided in Attachment 4, Planning Commission resolution. The following is discussion related to the appellant's concerns about the conditions of approval. • In the application materials submitted to the City, Appellant requested a CUP and Variance for a convenience store without an alcoholic beverage control license (i.e. Type 20 or Type 21 ABC License /Beer & Wine /General Off sale). In an email dated November 15, 2014 (Attachment 5), the property owner's agent confirmed that the CUP was regarding construction of the convenience market and the alcoholic beverage license was not a part of the request. • The oronosed convenience store is located in an area of "undue concentration" of off - sale liquor licenses. Per ABC regulations, an "undue concentration" of alcohol licenses exists if the ratio of on- or off -sale alcohol licenses allowed in a census tract based on population exceeds the ratio of on- or off -sale alcohol licenses based on population countywide. The property is located within a Census Tract (639.06) of undue concentration for off - sale licenses. As noted in Table A below, the surrounding Census Tracts are also within areas of undue concentration. Approval of an off -sale license would be subject to a Public Convenience and Necessity Finding by the Planning Commission. Table A Census Tract Off -Sale Licenses Allowed Off -Sale Licenses Existing Undue Concentration Subject Property 639.06 2 3 Yes 632.01 1 2 Yes 637.02 2 10 Yes 639.05 1 4 Yes Notes: 7-11 Store (2244 Fairview Rd.), Chevron Station (2160 Harbor Blvd), and Sunrise Liquor (2205 Fairview Rd.) are the three locations within Census Tract 639.06 with existing off -sale alcoholic beverage licenses. • Condition No. 6 requires transparent disclosure to future buyer's of the prohibition of alcoholic beverage sales; however, there are no conditions that would prevent the property owner from amendinq the CUP and applyinq for an ABC license anytime in the future. For the purpose of transparency and factual disclosure, Condition No. 6 was approved by the Planning Commission to inform future buyers on the restriction of alcoholic beverage sales and to confirm that Condition No. 5 will be adhered to by this operator and any subsequent business owner. It should be noted that the Zoning Code requires that any change to the operation of a convenience market including off -sale ABC license is subject to approval of a conditional use permit. Please refer to the Planning Commission staff report (Attachment 4) for detailed information and analysis related to the project. In the past, there have been historic instances where potential buyers of a gas station property are unaware of the limitations on alcoholic beverage sales. To notify future buyers regarding zoning regulations, a buyer's notice shall be recorded on the property memorializing the prohibition of alcohol sales. • Property owner may request the approval of a premise to premise transfer of an off - sale ABC License if one becomes available in the future. Zoning Code Section 13-200.71 requires approval of a conditional use permit for an existing liquor store, convenience store, or mini -market for in cases when a new off - sale license is requested to or when a premise to premise transfer of off -sale ABC license is requested. Therefore, any change to the alcoholic beverage sale will be subject to approval an amendment of this conditional use permit at a future date. • Appellant rejected the language proposed for the Buyer's Notification: Following the submittal of the appeal, planning staff met with the applicant to discuss the de novo hearing process, concerns with Condition No. 6 and drafting the verbiage for the buyer's notice. The following DRAFT language was offered and discussed related to Condition No. 6, the buyer's notification: "On February 9, 2015, the Costa Mesa Planning Commission approved a Conditional Use Permit and Variance for a 1,125 sq. ft. Convenience store located at 2281 Newport Boulevard. For detailed information regarding this Conditional Use Permit, includinq aspects of alcoholic beverage sales, contact the City of Costa Mesa's Development Services Department. The Costa Mesa Municipal Code indicates that any future request for an off -sale Alcoholic Beverage Control License shall be subiect to the approval of a Conditional Use Permit (Title 13. Article 16. Section 13-200.71 of CMMU " NOTE: It should be noted that the above language does not expressly state that sales of alcoholic beverages are absolutely prohibited. The appellant indicated that he needed additional input and would prefer removal of the condition. Staff noted that removal of the condition was not in staff's discretion and the appeal would need to be processed. Following the meeting, the applicant indicated that he needed additional time and requested a public hearing on April 21, 2015. • Appellant indicated that any reference or reiteration of the prohibition of alcoholic sales will be detrimental to future property negotiations with prospective buyers or the pursuit of financing. City staff has offered to collaborate with the appellant's financial institution on proposed language that would meet the intent of the condition. However, staff has not received communications from the applicant's lending institution regarding specific concerns with a disclosure notice about the restriction on alcoholic beverage sales or any suggested language. LEGAL REVIEW The draft resolutions have been reviewed and approved as to form by the City Attorney's Office. ALTERNATIVES The City Council may take the following actions: • Uphold the Planning Commission's decision, including Condition of Approval No.6 related to the Buyer's Notice. The applicant's proposal for a new convenience store required the approval of a CUP and Variance in an area with an undue concentration of off -sale ABC licenses. • Reverse the Planning Commission's approval and deny PA -14-39. If the project were to be denied, the convenience store could not be constructed. The appropriate findings would need to be made and the project applicant could not submit substantially the same type of application for six months. CONCLUSION The applicant's proposal for a new convenience store required the discretionary approval of a CUP and Variance in an area with an undue concentration of off -sale ABC licenses. The importance of Condition No. 6 was to provide transparent disclosure of the prohibition of alcoholic beverage sales. De novo literally translates to "anew," "afresh" or "a second time." A de novo hearing is essentially a new proceeding where the proposal is presented to the City Council for final consideration. In its decision making, City Council is not restricted to the evidence that was previously presented to the Planning Commission. MINOO ASHABI, AIA Principal Planner Attachments: 1 2 3 4 5 6 GARY ARMSTRONG, AICP Director of Economic & Development / Deputy CEO Location Map Draft Resolutions Request for Appeal Planning Commission Resolution Submitted Application / Request Submitted Plans cc: Chief Executive Officer Assistant Chief Executive Officer Director of Economic & Development / Deputy CEO City Attorney Public Services Director Transportation Svs. Mgr. City Engineer City Clerk (9) Staff (7) File (2) Shawn Mehr Optima Contractors 15 Columbia Irvine, CA 92612 Sam Rahimian 1200 E. Imperial Highway Brea, CA 92821 Aboudi Ballat 2205 Fairview Road Costa Mesa, CA 92627