Pho Ever Beer and Wine. Minor Use Permit (MIN) Coastal Development Permit (CDP) Exempt APPROVE MIN/CDP. 127 North El Camino Real.

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1 PLANNING COMMISSION AGENDA REPORT Planning & Building Department Agenda Item: Project Name: Request: Discretionary Actions: CEQA Recommendation: STAFF RECOMMENDATION: 6F Pho Ever Beer and Wine A beer and wine license (ABC Type 41 license) for an existing restaurant Minor Use Permit (MIN) Coastal Development Permit (CDP) Exempt APPROVE Project Number: Location: Community: MIN/CDP 127 North El Camino Real New Encinitas APN: Applicant: Representative: Project Planner: PKIII Encinitas Marketplace LP Tam Dang, Pho Ever J. Dichoso, Associate Planner, jdichoso@encinitasca.gov Commission Meeting Date: October 20, 2016 City Council Hearing Required? Report Approval: No Scott Vurbeff, Environmental Manager Manjeet Ranu, AICP, Acting Director Recommended Actions: 1. Conduct the public hearing; and 2. Adopt the resolution APPROVING the project, subject to conditions OCTOBER 20, 2016 ITEM 6F 1 of 42

2 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 SUMMARY AND KEY CONSIDERATIONS The applicant requests approval of a Minor Use Permit and Coastal Development Permit to allow service of beer and wine for on-site consumption through a Type 41 Alcohol Beverage Control (ABC) license for an existing restaurant (Pho Ever) consistent with Encinitas Municipal Code (EMC) Chapter (Use Permits). The restaurant is a permitted use by right per the underlying General Commercial (GC) zone. The Planning Commission is being asked to consider the Minor Use Permit and Coastal Development Permit in order to determine whether to approve the proposed project. With alcohol service, there would be no change to restaurant operation. Key features of the project are listed below. 1. No exterior construction is proposed as part of this project. 2. The Type 41 ABC license would authorize on-site consumption of beer and wine only. No distilled spirits would be permitted on the premises. 3. Alcohol sales and consumption is limited to the interior restaurant. No outdoor or off-site consumption is to occur at any time. 4. Alcohol sales would coincide with the restaurant s existing business hours of 10 a.m. to 9 p.m. daily. No alcohol is to be served outside of these established times. 5. Food service must be available during all hours of operation. 6. Music entertainment shall be background music via the restaurant's current sound system or television. No live entertainment is proposed. PROJECT DESCRIPTION The applicant is proposing beer and wine service as an accessory use to accompany the existing primary restaurant use currently located within an existing building. The restaurant requires the following permits to serve alcohol: 1. The Minor Use Permit is to obtain a Type 41 (beer and wine) State of California Department of Alcohol Beverage Control license to serve beer and wine only in the restaurant. 2. The Coastal Development Permit is required because the project is located on property that is within the city s Coastal Zone. Following the City s approval of the Minor Use Permit, the Department of Alcoholic Beverage Control (ABC) may issue a Type 41 ABC license. The Type 41 ABC license authorizes the sale of beer and wine for consumption on the premises at a bonafide eating-place. OCTOBER 20, 2016 ITEM 6F 2 of 42

3 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 PROJECT ANALYSIS Background The project is located within the Encinitas Market Place Shopping Center. The initial construction of this shopping center occurred in 1982 prior to the incorporation of the City of Encinitas and met all of the applicable land use and zoning standards that were in effect for the County of San Diego at the time of project approval. The shopping center was renovated per Planning Commission Resolution dated December 2, 2010 (Case No DR/CDP). The current retail anchor tenant is Kohl s. The existing restaurant, Pho Ever, moved into the approximately 2,000 square-foot tenant suite in Building Permit dated April 22, 2015, authorized the wall signage and Building Permit dated April 30, 2015, authorized the interior improvements. Alcohol Use Licensing If the City approves the Minor Use Permit to allow the applicant to serve beer and wine, the Department of Alcoholic Beverage Control (ABC) may issue a Type 41 ABC license. The California Department of Alcoholic Beverage Control (ABC) is the state agency charged with the exclusive power to license and regulate the manufacture, importation and sale of alcoholic beverages in California. ABC s decision for an alcohol license application takes place after the City has completed its discretionary review. Project Site Characteristics General Plan: Specific Plan: Zoning District: Zoning Overlay: Community Character Context: Other Key City Plan: Notable State or Regional Plan and Law: General Commercial (GC) None General Commercial (GC) Coastal Zone Neighborhood Center None None The project site is located within the General Commercial (GC) General Plan Land Use Designation. The project site is zoned General Commercial (GC). Pursuant to Encinitas Municipal Code (EMC) Section (Zones), the General Commercial (GC) zone provides a wide range of commercial activities, including retail, wholesale, and service uses, to accommodate Citywide or regional needs. The project is also located within the Coastal Zone. The project site is located within the Neighborhood Center Community Character. The Neighborhood Center Community Character context exists within the Community of New Encinitas and northwest of the intersection of Encinitas Boulevard and North El Camino Real. The land uses within this context are predominantly retail/commercial, although some professional office and consumer service uses also occur within this area. Buildings are large and linear with have large setbacks. The needs of major retailers influence development, as demonstrated by the presence of large surface parking lots, which are a central characteristic of the urban environment in this context. OCTOBER 20, 2016 ITEM 6F 3 of 42

4 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Adjacent Area Direction General Plan and Community Character Land Use Zoning District Context North GC/GC Neighborhood Center Commercial South GC/GC Neighborhood Center Commercial East GC/GC Neighborhood Center Commercial West R-11/R-11 Neighborhood Center Multi-family uses Land uses adjacent to the restaurant site are predominantly commercial uses. To the immediate north, south, and east across North El Camino Real are other properties zoned General Commercial, like the project site. Indoor and outdoor alcohol beverage service is typical of restaurants in the vicinity. The next closest residential uses consist of a multi-family residential neighborhood located west of the commercial center, approximately 500 feet west of the subject restaurant site. General Plan Consistency The City of Encinitas General Plan includes a number of goals and policies that guide development and land use within the City. A discussion of how the project is consistent with the applicable General Plan policies is summarized below: General Plan Goal or Policy LU Policy 1.8: Encourage the types of commercial activities, which will supply the community with a diverse economic base. LU Policy 6.1: Permit commercial land uses and other nonresidential development only in those areas where such development is presently concentrated or as indicated by the General Plan as long as such development will not result on land use conflicts with surrounding residential development. Page LU-65 - Creation of an attractive commercial district that would serve the needs of both local residents and visitors to the Community. (Coastal Act/30250) Explanation of Project Conformance The proposed use, as conditioned, will provide a diversified dining option for those living in the community. The use will complement the commercial activities that exist within the commercial vicinity. The existing restaurant with proposed beer and wine service will be located within an existing commercial shopping center, where non-residential, commercial development is predominantly concentrated. The proposed beer and wine service is compatible with the existing commercial uses, and as conditioned, will not negatively affect the residential development that is located to the west of the project site. The existing restaurant with proposed beer and wine service will be located within an area along El Camino Real and Encinitas Boulevard that predominately commercial and is zoned General Commercial. A wide range of commercial uses, including general retail, restaurant, and other service-oriented uses, characterize the land uses within the underlying GC zone that serves as a commercial center for the City. OCTOBER 20, 2016 ITEM 6F 4 of 42

5 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Municipal Code Analysis Development Standard Project Proposed Complies? Land Use The restaurant is allowed by-right within the GC Zone. Alcohol service requires a use permit, the subject of this application. Yes No Setbacks, Lot Coverage, FAR, and Building Height No development or changes to the suite is proposed, therefore all of the current development standards are to be maintained. Yes No Parking Planning Commission Resolution dated December 2, 2010 (Case No DR/CDP) renovated the Encinitas Market Place Shopping Center and required 402 parking spaces, which adequately serves the shopping center. No additional parking is required for the provision of alcohol service with an existing restaurant. Yes No Signage Planning Commission Resolution dated December 2, 2010 (Case No DR/CDP) renovated the Encinitas Market Place Shopping Center and approved a center-wide sign program. No new signage is proposed for the inclusion of alcohol. Yes No Minor Use Permit Although restaurant dining is a permitted use within the underlying zone, the proposed alcohol beverage service and consumption of beer and wine by restaurant patrons is reliant upon the Minor Use Permit and Type 41 ABC license for on-site service of beer and wine. The Planning Commission is the authorized agency for reviewing and granting discretionary approvals for alcohol beverage service per City Council policy. The Sheriff s Department reviewed the proposed alcohol service and had no comments or concerns. The building has historically been a restaurant use (for example Santa Fe Cafe), but without alcohol beverage service. As such, there has been no Code Enforcement activity related to alcohol use historically. According to the Alcoholic Beverage Control database query as of September 28, 2016, there are 37 existing on-sale licenses (i.e. lists types of license (type 41, 47, etc.)) within the three Census Tracts [ (16); (6); (15)] within 1,000 feet of the restaurant. Of the 37 licenses, 12 of these licenses have been issued to restaurant establishments that are currently in operation within 1,000 feet of the existing restaurant. One restaurant, Bety s Tacos, closed within the past year. These restaurants and their ABC licenses are summarized below: OCTOBER 20, 2016 ITEM 6F 5 of 42

6 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Establishment Name ABC License Type/Privilege Census Tract Distance to Pho Ever (feet) 1. Rubio s Fresh Mexican Type 41 (On-sale beer and wine) , Pizzicato Gourmet Pizza Type 41 (On-sale beer and wine) , Sushi House Type 41 (On-sale beer and wine) Bety s Tacos Type 41 (On-sale beer and wine) (Recently closed) 5. Garcia s Mexican Type 47 (On-sale General Eating ,000 Cuisine place, beer, wine and spirits) 6. Mister Sushi Type 41 (On-sale beer and wine) The Kebab Shop Type 41 (On-sale beer and wine) Blaze Fast Fired Pizza Type 41 (On-sale beer and wine) Native Foods Cafe Type 41 (On-sale beer and wine) Round Table Pizza Type 41 (On-sale beer and wine) Golden Bowl Restaurant Type 41 (On-sale beer and wine) , Brett s BBQ Type 41 (On-sale beer and wine) As shown by the distances above, there is adequate separation between these restaurants and the existing restaurant since all are greater than 650 feet away. The proposed consumption of alcohol would only take place within the defined indoor area on private property and may not take place in the public right-of-way in accordance with Section (Prohibited Possession of Opened Container, Public Property). No outdoor dining or sidewalk dining within the public right-of-way is proposed. The existing restaurant is located completely on private property. Although the restaurant is at the same grade as the closest public right-of-way, the restaurant is 150 feet from the nearest public right-of-way or sidewalk. The westerly residential uses are approximately 500 feet away. Considering all of the above, there is adequate separation. Operational Management Plan (Form AN) Based on the Operational Management Plan and proposed site and floor plans (dated received on August 4, 2016), the project has been conditioned as summarized below: Hours of operation and alcohol service: SCA2 SCA3 SCA4 Alcohol sales would coincide with the restaurant s existing business hours of 10:00am to 9:00pm daily. No alcohol shall be served and consumed past these established times. At all times when alcoholic beverages are sold, served, or consumed, food services with a full menu shall be available to patrons upon request. The serving of alcohol (beer and wine only) shall be limited to the interior dining area of restaurant in accordance with the floor plan dated August 4, No consumption or service of alcohol will take place in the public right-of-way in accordance with Section (Prohibited Possession of Opened Container, Public Property). OCTOBER 20, 2016 ITEM 6F 6 of 42

7 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 SCA12 Any modifications to the alcohol service areas as approved herein and depicted on the project plans shall be reviewed by the Planning and Building Department for compliance with conditions of approval of this use permit and determine whether a modification to the use permit is necessary. Conditions for potential noise concerns: SCA9 SCA UA10 UA15 SCA10 The restaurant at all times shall comply with Chapter 9.32 (Noise Abatement and Control) and Chapter (Performance Standards) of the Encinitas Municipal Code, as it relates to noise thresholds as measured at the property line. There shall be no dancing on the premises at any time. The applicant shall ensure that no patron exhibiting observable signs or behaviors consistent with intoxication is furnished with alcohol and that bar policies shall reserve the right of the establishment to deny alcohol service to any patron. The applicant shall be responsible for managing outdoor crowds and queuing as a result of this use (ensuring that an orderly line of patrons awaiting entry does not block public access on, or use of, the sidewalk or street). All music shall be heard within the restaurant. Music entertainment shall consist predominantly background music via the restaurant's current sound system or television. Live entertainment requires compliance with the ABC License and San Diego County Code Section (Entertainment Establishments) as adopted by reference in Encinitas Municipal Code Section H (Regulated Businesses). Local Coastal Program Consistency The proposed project is located within the Coastal Zone of the City of Encinitas and requires approval of a Coastal Development Permit for the project. Adherence to the development standards of the General Commercial (GC) zone provided in the Encinitas Municipal Code, along with the nonconformity regulations, and the goals and policies of the General Plan the project ensure consistency with the City s adopted Local Coastal Program. PUBLIC NOTICE AND PARTICIPATION Citizen Participation Program The applicant submitted a Citizen s Participation Program (CPP) in accordance with Section of the Municipal Code. On August 4, 2016, a CPP notice was mailed to notify all property owners and occupants within a 500-foot radius of the proposed project. The notice gave a brief summary of the proposed project and notified the recipients of the CPP meeting date, time and location. The CPP meeting was held on Saturday, August 20, 2016, at the restaurant. Apart from the applicant, no one attended the meeting. Since the receipt of the final report (Attachment PC-5), no additional comments were received. OCTOBER 20, 2016 ITEM 6F 7 of 42

8 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Public Notice The Notice of Pending Action on the Minor Use Permit and Coastal Development Permit was mailed on October 6, 2016 to all property owners and occupants within 500 feet of the project site and to anyone who requested such notice in writing, in compliance with Encinitas Municipal Code Sections and and Government Code Sections 65090, and 65092, as applicable. Additionally, as a courtesy, the notice was posted at City Hall and on the Planning and Building Department s Internet site under Public Notices and via e-project Source. ENVIRONMENTAL CONSIDERATIONS The proposed project includes a request to allow beer and wine service for on-site consumption for an existing restaurant within an existing developed shopping center. The project is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines Section 15301(a). Section 15301(a) exempts the operation, permitting and licensing of existing structures, including interior and exterior alterations. The proposed project will provide alcohol service for an existing restaurant within an existing commercial tenant space. This does not intensify the existing land use because it provides an additional service accessory to the principal restaurant use. None of the exceptions in Section of the CEQA Guidelines exist. DISCUSSION With the proposed addition of beer and wine service, the conduct and the layout of the floor plan of the proposed restaurant and its dining areas are typical of restaurant operations. All of the GC development standards applicable would be met with this proposal and it would be required to comply with all applicable Building and Fire codes, and Engineering Traffic and sewer fees to be evaluated through the standard building permit plan checking process. The restaurant would also maintain all minimum setback requirements for the underlying zone since no new construction is proposed and the restaurant would occupy an existing building. No evidence of incompatibility with the site or surrounding development and the standards of the underlying zone have been identified by staff or the public, and staff has thus determined that the project would not have an adverse effect on adjacent uses, natural resources, or any policy or provision of the Encinitas General Plan or Municipal Code. Staff reviewed other alcohol serving establishments in the vicinity and all generally close between 9 p.m. and 10 p.m. weekdays and as late as 12 a.m. on weekends. Alcohol service at this location is compatible with the commercial vicinity as it is commonplace for a restaurant to provide alcohol service to complement its food service. FINDINGS Use Permit Based on findings for a Use Permit per Encinitas Municipal Code Section (Use Permit) and the aforementioned analysis, staff has made the following findings to support the recommendation of approval, with conditions: OCTOBER 20, 2016 ITEM 6F 8 of 42

9 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Findings for Minor Use Permit 1. The location, size, design or operating characteristics of the proposed project will be incompatible with or will adversely affect or will be materially detrimental to adjacent uses, residences, buildings, structures or natural resources, with consideration given to, but not limited to: a. The inadequacy of public facilities, services and utilities to serve the proposed project; b. The unsuitability of the site for the type and intensity of use or development which is proposed; and Explanation of Finding The project is located within an existing commercial shopping center that was approved under the County of San Diego prior to the city s incorporation in All public utilities are in place to serve the project and there are no environmental issues associated with the project. The existing restaurant occupies a suite that has historically been of a restaurant use. The westerly residential uses are approximately 500 feet away. Therefore, there is adequate separation from the restaurant. As such, there would be no adverse impacts to the adjacent residential uses anticipated. The Sheriff s Department reviewed the proposed alcohol service and had no comments or concerns. There has been no Code Enforcement activity related to alcohol use historically. Overall, the operating characteristics, hours of operation of the use, and separation from other uses present no evidence of incompatibility with the site or surrounding development. The proposed use will occur completely within an existing building, minimizing any potential impacts to the surrounding businesses and residential uses. c. The harmful effect, if any, upon environmental quality and natural resources of the city; The project is exempt from environmental review pursuant to Section 15301(a) of the CEQA Guidelines, which exempts the operation, permitting and licensing of existing structures as alcohol service is accessory to the primary land use of a restaurant that is permitted by-right within the underlying GC zone. The proposed project does not involve any expansion beyond the existing use. The project meets the criteria for the exemption. None of the exceptions listed in Section exist for the proposed project. OCTOBER 20, 2016 ITEM 6F 9 of 42

10 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Findings for Minor Use Permit 2. The impacts of the proposed project will adversely affect the policies of the Encinitas General Plan or the provisions of the Municipal Code; and Explanation of Finding The proposed use, as conditioned, is consistent with the policies of the General Plan and applicable provisions of the Encinitas Municipal Code. The operational characteristics of the use have been reviewed and analyzed and it has been determined that the proposed use (beer and wine service for on-site consumption at an existing restaurant), as conditioned, will not adversely affect adjacent uses, residences, buildings, structures, or natural resources. 3. The project fails to comply with any other regulations, conditions, or policies imposed by the Municipal Code. The project is subject to an Operations Management Plan, which includes limitations and requirements for the use. Any modifications to the Operations Management Plan must be reviewed by the Planning and Building Department to determine conformance with this approval. The restaurant at all times shall also comply with EMC Chapter 9.32 (Noise Abatement and Control) and Chapter (Performance Standards). Coastal Development Permit Based on findings for a Coastal Development Permit for Encinitas Municipal Code Section (Coastal Development Permit) and the aforementioned analysis, staff has made the following findings to support the recommendation of approval, with conditions: Finding for Coastal Development Permit 1. The proposed project is consistent with the certified Local Coastal Program of the City of Encinitas. Explanation of Finding 1. The project site is located in GC Zone and within the Coastal Zone. The project proposes permit alcohol service via a Type 41 ABC license for restaurant patrons. The project complies with all applicable requirements and policies of the General Plan. The project, as conditioned, also complies with all applicable Municipal Code standards and the findings can be made. It is therefore consistent with the Local Coastal Program for the City of Encinitas. OCTOBER 20, 2016 ITEM 6F 10 of 42

11 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Finding for Coastal Development Permit 2. The proposed development conforms with Public Resources Code Section and following (CEQA) and that there are no feasible mitigation measures or feasible alternatives available which would substantially lessen any significant adverse impact that the activity may have on the environment. 3. For projects involving development between the sea or other body of water and the nearest public road, approval shall include a specific finding that such development is in conformity with the public access and public recreation policies of Section et seq. of the Coastal Act. Explanation of Finding 2. No potential significant adverse impacts to the environment would result from the project and the project is exempt from environmental review pursuant to Section 15301(a) of the California Environmental Quality Act (CEQA) Guidelines. 3. The project site is not between the first public road (Neptune Avenue) and the sea. The project site is located along North Camino Real, which is east of the first public road. CONCLUSION The proposed project is consistent with the General Plan, Local Coastal Program and Encinitas Municipal Code. The project, as conditioned, will not have a significant effect on the environment. In addition, all required public improvements and utilities are available to serve the proposed development, subject to the conditions for this project. The proposed project meets all of the applicable development standards for the General Commercial (GC) zone, and demonstrates compatibility with the surrounding neighborhood. The existing restaurant with alcohol service contributes to the commercial dining character of New Encinitas and the city as a whole and will contribute positively to the community. With the Minor Use Permit, the property owner may enjoy privileges enjoyed by other restaurants in the vicinity, as alcohol service is commonplace in the commercial vicinity. Staff recommends that the Planning Commission approve Case No MIN/CDP based upon the findings and conditions contained in the attached draft Resolution of Approval (Attachment PC-1). ATTACHMENTS PC-1 Proposed Planning Commission Resolution PC-2 Vicinity Map with Aerial Image PC-3 Application, Disclosure Statement, and Photographs PC-4 Public Notice and 500-foot Notification radius PC-5 Citizen Participation Program Final Report PC-6 Project Drawings OCTOBER 20, 2016 ITEM 6F 11 of 42

12 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Exhibit PC-1 Case No MIN/CDP Proposed Planning Commission Resolution OCTOBER 20, 2016 ITEM 6F 12 of 42

13 RESOLUTION NO. PC 2016-XX A RESOLUTION OF THE CITY OF ENCINITAS PLANNING COMMISSION APPROVING A MINOR USE PERMIT AND COASTAL DEVELOPMENT PERMIT FOR A TYPE-41 ABC LICENSE FOR THE SALE OF BEER AND WINE FOR AN EXISTING RESTAURANT LOCATED AT 127 NORTH EL CAMINO REAL. CASE NO MIN/CDP (APN and 35) WHEREAS, Tam Dang for PK III Encinitas Marketplace LP submitted an application for a Minor Use Permit and Coastal Development Permit for a Type-41 ABC license to allow for the sale of beer and wine for an existing restaurant located at 127 North El Camino Real, legally described as: ALL THAT PORTION OF PARCEL 4 OF PARCEL MAP NO. 4274, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 28, 1975 AS FILE NO , OFFICIAL RECORDS, LYING SOUTHERLY OF THE SOUTHERLY LINE OF THAT CERTAIN LAND DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, JULY 16, 1979 AS FILE NO , OFFICIAL RECORDS WHICH IS DESIGNATED IN SAID DEED AS EASEMENT FOR THE COUNTY HIGHWAY-MALENA DRIVE WHEREAS, the Planning Commission conducted a duly noticed public hearing on October 20, 2016; NOW, THEREFORE, BE IT RESOLVED that the Encinitas Planning Commission hereby APPROVES Case No MIN/CDP based on the following Environmental Determination and Findings: Section 1. California Environmental Quality Act Determination It has been determined that the proposed project is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines Section 15301(a). Section 15301(a) exempts the operation, permitting and licensing of existing structures, including interior and exterior alterations. The proposed project will provide alcohol service (beer and wine) for an existing restaurant within an existing commercial tenant space. This does not intensify the existing land use because it provides an additional service accessory to the principal restaurant use. None of the exceptions in Section of the CEQA Guidelines exist. OCTOBER 20, 2016 ITEM 6F 13 of 42

14 Section 2. Discretionary Action(s) Findings Use Permit Based on findings for a Use Permit per Encinitas Municipal Code Section (Use Permit) and the aforementioned analysis, Planning Commission has made the following findings to support the approval, with conditions: Findings for Minor Use Permit 1. The location, size, design or operating characteristics of the proposed project will be incompatible with or will adversely affect or will be materially detrimental to adjacent uses, residences, buildings, structures or natural resources, with consideration given to, but not limited to: a. The inadequacy of public facilities, services and utilities to serve the proposed project; b. The unsuitability of the site for the type and intensity of use or development which is proposed; and Explanation of Finding The project is located within an existing commercial shopping center that was approved under the County of San Diego prior to the city s incorporation in All public utilities are in place to serve the project and there are no environmental issues associated with the project. The existing restaurant occupies a suite that has historically been of a restaurant use. The westerly residential uses are approximately 500 feet away. Therefore, there is adequate separation from the restaurant. As such, there would be no adverse impacts to the adjacent residential uses anticipated. The Sheriff s Department reviewed the proposed alcohol service and had no comments or concerns. There has been no Code Enforcement activity related to alcohol use historically. Overall, the operating characteristics, hours of operation of the use, and separation from other uses present no evidence of incompatibility with the site or surrounding development. The proposed use will occur completely within an existing building, minimizing any potential impacts to the surrounding businesses and residential uses. OCTOBER 20, 2016 ITEM 6F 14 of 42

15 Findings for Minor Use Permit c. The harmful effect, if any, upon environmental quality and natural resources of the city; Explanation of Finding The project is exempt from environmental review pursuant to Section 15301(a) of the CEQA Guidelines, which exempts the operation, permitting and licensing of existing structures as alcohol service is accessory to the primary land use of a restaurant that is permitted by-right within the underlying GC zone. The proposed project does not involve any expansion beyond the existing use. The project meets the criteria for the exemption. None of the exceptions listed in Section exist for the proposed project. 2. The impacts of the proposed project will adversely affect the policies of the Encinitas General Plan or the provisions of the Municipal Code; and The proposed use, as conditioned, is consistent with the policies of the General Plan and applicable provisions of the Encinitas Municipal Code. The operational characteristics of the use have been reviewed and analyzed and it has been determined that the proposed use (beer and wine service for on-site consumption at an existing restaurant), as conditioned, will not adversely affect adjacent uses, residences, buildings, structures, or natural resources. 3. The project fails to comply with any other regulations, conditions, or policies imposed by the Municipal Code. The project is subject to an Operations Management Plan, which includes limitations and requirements for the use. Any modifications to the Operations Management Plan must be reviewed by the Planning and Building Department to determine conformance with this approval. The restaurant at all times shall also comply with EMC Chapter 9.32 (Noise Abatement and Control) and Chapter (Performance Standards). Coastal Development Permit Based on findings for a Coastal Development Permit for Encinitas Municipal Code Section (Coastal Development Permit) and the aforementioned analysis, Planning Commission has made the following findings to support the approval, with conditions: Finding for Coastal Development Permit 1. The proposed project is consistent with the certified Local Coastal Program of the City of Encinitas. Explanation of Finding 1. The project site is located in GC Zone and within the Coastal Zone. The project proposes permit alcohol service via a Type 41 ABC license for restaurant patrons. The project complies with all applicable requirements and OCTOBER 20, 2016 ITEM 6F 15 of 42

16 Finding for Coastal Development Permit 2. The proposed development conforms with Public Resources Code Section and following (CEQA) and that there are no feasible mitigation measures or feasible alternatives available which would substantially lessen any significant adverse impact that the activity may have on the environment. 3. For projects involving development between the sea or other body of water and the nearest public road, approval shall include a specific finding that such development is in conformity with the public access and public recreation policies of Section et seq. of the Coastal Act. Explanation of Finding policies of the General Plan. The project, as conditioned, also complies with all applicable Municipal Code standards and the findings can be made. It is therefore consistent with the Local Coastal Program for the City of Encinitas. 2. No potential significant adverse impacts to the environment would result from the project and the project is exempt from environmental review pursuant to Section 15301(a) of the California Environmental Quality Act (CEQA) Guidelines. 3. The project site is not between the first public road (Neptune Avenue) and the sea. The project site is located along North Camino Real, which is east of the first public road. The above environmental determination and findings are supported by the minutes, maps, and exhibits, all of which are herein incorporated by reference. BE IT FURTHER RESOLVED that based on the Environmental Determination and Findings hereinbefore adopted by the Planning Commission, Case No MIN/CDP is hereby subject to the conditions in Exhibit A. PASSED AND ADOPTED this 20 th day of October, 2016, by the following vote, to wit: AYES: NOES: ABSTAIN: ABSENT: Michael Glenn O Grady, Chair ATTEST: Roy Sapa u, Secretary OCTOBER 20, 2016 ITEM 6F 16 of 42

17 EXHIBIT "A" Resolution No. PC 2016-XX Case No MIN/CDP CONDITIONS OF APPROVAL Applicant: Tam Dang for PK III Encinitas Marketplace LP Location: 127 North El Camino Real (APN and 35) SC1 SPECIFIC CONDITIONS: SC2 At any time after two years from the date of this approval, on October 20, 2018, at 5 p.m., or the expiration date of any extension granted in accordance with the Municipal Code, the City may require a noticed public hearing to be scheduled before the authorized agency to determine if there has been demonstrated a good faith intent to proceed in reliance on this approval. If the authorized agency finds that a good faith intent to proceed has not been demonstrated, the application shall be deemed expired as of the above date (or the expiration date of any extension). The determination of the authorized agency may be appealed to the City Council within 15 days of the date of the determination. SC5 SCA This project is conditionally approved as set forth on the application and project drawings stamped received by the City on August 4, 2016, consisting of three sheets including the Title/Vicinity Map (Sheet 1/3), Shopping Center Location (Sheet 2/3), and Floor Plan (Sheet 3/3), all designated as approved by the Planning Commission on October 20, 2016, and shall not be altered without express authorization by the Planning and Building Department. The following conditions shall be completed/fulfilled to the satisfaction of the Planning and Building Department: 1. The use shall operate within the scale, scope and limitations as described in the project description, inclusive the aforementioned plans, the staff report and this Resolution. 2. Alcohol sales shall coincide with the restaurant s existing business hours of 10 a.m. to 9 p.m. daily. No alcohol shall be served outside of these established times. 3. At all times when alcoholic beverages are sold, served, or consumed, food services with a full menu shall be available to patrons upon request. 4. The serving of alcohol shall be limited to the interior dining area of restaurant in accordance with the floor plan dated August 4, No consumption or service of alcohol shall take place in the public right-of-way in accordance with Section (Prohibited Possession of Opened Container, Public Property). No consumption or service shall occur on property exterior. 5. The requirements and restrictions of an ABC license shall be in addition to this approval for a Minor Use Permit. OCTOBER 20, 2016 ITEM 6F 17 of 42

18 6. All requirements of the Alcohol Beverage Control (ABC) shall be complied with, including that all areas licensed for the sale of alcohol shall meet the criteria of the ABC. 7. Any signs proposed for this development shall be designed and approved in conformance with Encinitas Municipal Code Chapter and the Encinitas Town and Country shopping center sign program criteria. 8. All signage shall require the issuance of a separate building permit. 9. The restaurant at all times shall comply with Chapter 9.32 (Noise Abatement and Control) and Chapter (Performance Standards) of the Encinitas Municipal Code, as it relates to noise thresholds as measured at the property line. 10. No music shall be audible outside of the restaurant space that does not comply with noise regulations. Music entertainment shall be consist predominantly background music via the restaurant's current sound system or television. 11. Any future use of amusement devices (including video game machines or similar devices which are controlled, allowed or made possible by depositing or placing a coin, plate, disk, slug or key into a slot, crevice or other opening or by paying a fee for use as a game, contest or amusement of any description, the use or possession of which is not prohibited by any law of the State of California) shall be subject to Section of the Encinitas Municipal Code as amended from time-to-time and may require separate approval. 12. Live entertainment requires compliance with the ABC License and San Diego County Code Section (Entertainment Establishments) as adopted by reference in Encinitas Municipal Code Section H (Regulated Businesses). 13. There shall be no dancing on the premises at any time. 14. The operation as approved herein shall not be converted to any other use including but not limited to a bar, dance floor, band stage/station, Disc Jockey station, etc., unless a modification to the use permit is approved to the satisfaction of the Planning & Building Department. This use permit is for alcohol sales as an accessory use to the principal restaurant use. Failure to operate alcohol sales as an accessory use to the principal restaurant use may result in reconsideration of this use permit. 15. Any operable windows shall be closed at 10 p.m. 16. Any modifications to the alcohol service areas and hours of operations as approved herein and depicted on the project plans and described in the project description shall be reviewed by the Planning and Building Department for compliance with conditions of approval of this use permit and determine, whether a modification to the use permit is necessary G1 STANDARD CONDITIONS: CONTACT THE PLANNING AND BUILDING DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITION(S): OCTOBER 20, 2016 ITEM 6F 18 of 42

19 G2 G4 G5 G6 G12 This approval may be appealed to the City Council within 15 calendar days from the date of this approval in accordance with Chapter 1.12 of the Municipal Code. Prior to building permit issuance, the owner shall cause a covenant regarding real property to be recorded. Said covenant shall set forth the terms and conditions of this grant of approval and shall be of a form and content satisfactory to the Planning and Building Director. The Owner(s) agree, in acceptance of the conditions of this approval, to waive any claims of liability against the City and agrees to indemnify, hold harmless and defend the City and City's employees relative to the action to approve the project. Approval of this request shall not waive compliance with any sections of the Municipal Code and all other applicable City regulations in effect at the time of Building Permit issuance unless specifically waived herein. Permits from other agencies will be required as follows: State Alcoholic Beverage Control (ABC) Prior to any use of the project site pursuant to this permit, all conditions of approval contained herein shall be completed or secured to the satisfaction of the Planning and Building Department. G13 The applicant shall pay development fees at the established rate. Such fees may include, but not be limited to: Permit and Plan Checking Fees, Water and Sewer Service Fees, School Fees, Traffic Mitigation Fees, Flood Control Mitigation Fees, Park Mitigation Fees, and Fire Mitigation/Cost Recovery Fees. Arrangements to pay these fees shall be made prior to building permit issuance to the satisfaction of the Planning and Building and Engineering Services Departments. The applicant is advised to contact the Planning and Building Department regarding Park Mitigation Fees, the Engineering Services Department regarding Flood Control and Traffic Fees, applicable School District(s) regarding School Fees, the Fire Department regarding Fire Mitigation/Cost Recovery Fees, and the applicable Utility Departments or Districts regarding Water and/or Sewer Fees. G20 G21 Decorative use of neon or LED tubing or banding, such as tubing around windows or doors or banding around the building exterior, shall not be allowed unless approved through subsequent design review permit modification(s). Temporary window signs are limited to 25% of window area in accordance with Section (N) of the Municipal Code. All utility connections shall be designed to coordinate with the architectural elements of the site so as not to be exposed except where necessary. Locations of pad mounted transformers, meter boxes, and other utility related items shall be included in the site plan submitted with the building permit application with an appropriate screening treatment. Transformers, terminal boxes, meter cabinets, pedestals, ducts and other facilities may be placed above ground provided they are screened with landscaping. OCTOBER 20, 2016 ITEM 6F 19 of 42

20 USE PERMITS U1 U2 U3 U4 U5 U7 At all times during the effective period of this permit, the responsible party shall obtain and maintain in valid force and effect, each and every license and permit required by a governmental agency for the operation of the authorized activity. In the event that any of the conditions of this permit are not satisfied, the Planning and Building Department shall cause a noticed hearing to be set before the authorized agency to determine whether the City of Encinitas should revoke this permit. Upon a showing of compelling public necessity demonstrated at a noticed hearing, the City of Encinitas, acting through the authorized agency, may add, amend, or delete conditions and regulations contained in this permit. Nothing in this permit shall relieve the applicant from complying with conditions and regulations generally imposed upon activities similar in nature to the activity authorized by this permit. Nothing in this permit shall authorize the applicant to intensify the authorized activity beyond that which is specifically described in this permit. Any future modifications to the approved project will be reviewed relative to the findings for substantial conformance with a use permit contained in Section of the Municipal Code. Modifications beyond the scope described therein will require submittal of an amendment to the use permit and approval by the authorized agency. USE PERMITS FOR ON-SALE ALCOHOL UA2 UA5 UA6 UA7 Upon receipt of any substantial complaint(s) regarding the operation of the business which is the subject of this permit, the City may, upon proper notification of the owner and/or applicant and acting through the authorized agency, conduct a hearing to determine if the conditions of approval need to be modified or whether the permit should be revoked. The quarterly gross sales of alcoholic beverages shall not exceed 50% of the quarterly gross sales of all food products during the same period. Business shall be conducted in a manner that will not violate any provisions of the California Alcoholic Beverage Control Act, providing against the sale of alcohol to minors; maintaining the public health, morals, convenience, and safety; and taking reasonable steps to correct any objectionable conditions on the premises and immediately adjacent to the premises. This permit is strictly limited to allow only the occupant load for the premises as approved by the City of Encinitas Fire Department. Any improvements that will result in an increase in current occupancy load shall require a modification to the use permit. Occupant loads approved by the City of Encinitas Fire Department shall be posted at all times. OCTOBER 20, 2016 ITEM 6F 20 of 42

21 UA8 UA9 Upon a change to the business model as represented in this entitlement, the use permit shall be reviewed by the Planning and Building Director for compliance with conditions of approval or to determine whether a modification to the use permit is necessary. The applicant is responsible at all times for verifying the legal age of patrons, monitoring the behavior of patrons, and taking appropriate actions to deter conduct that may threaten the health, safety or welfare of patrons or property. UA10 The applicant shall ensure that no patron exhibiting observable signs or behaviors consistent with intoxication is furnished with alcohol and that bar policies shall reserve the right of the establishment to deny alcohol service to any patron. UA11 No individual under 21 years of age, or without proper identification, shall be served or sold alcohol. UA12 The site shall be maintained in a neat and orderly manner at all times. UA13 No sales of alcoholic beverages for consumption off-premises is authorized through this permit. UA15 The applicant shall be responsible for managing outdoor crowds and queuing as a result of this use (ensuring that an orderly line of patrons awaiting entry does not block public access on, or use of, the sidewalk or street). UA16 No pool tables or coin-operated amusement devices shall be permitted, maintained or operated on the premises. B1 BUILDING CONDITION(S): CONTACT THE ENCINITAS BUILDING DIVISION REGARDING COMPLIANCE WITH THE FOLLOWING CONDITION(S): B2 The applicant shall submit a complete set of construction plans to the Building Division for plancheck processing. The submittal shall include a Soils/Geotechnical Report, structural calculations, and State Energy compliance documentation (Title 24). Construction plans shall include a site plan, a foundation plan, floor and roof framing plans, floor plan(s), section details, exterior elevations, and materials specifications. Submitted plans must show compliance with the latest adopted editions of the California Building Code (The Uniform Building Code with California Amendments, the California Mechanical, Electrical and Plumbing Codes). Commercial and Multi-residential construction must also contain details and notes to show compliance with State disabled accessibility mandates. These comments are preliminary only. A comprehensive plancheck will be completed prior to permit issuance and additional technical code requirements may be identified and changes to the originally submitted plans may be required. OCTOBER 20, 2016 ITEM 6F 21 of 42

22 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Exhibit PC-2 Case No MIN/CDP Vicinity Map with Aerial Image OCTOBER 20, 2016 ITEM 6F 22 of 42

23 Exhibit PC-3 Case No MIN/CDP Application, Disclosure Statement and Photographs PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 OCTOBER 20, 2016 ITEM 6F 23 of 42

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34 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Exhibit PC-4 Case No MIN/CDP Public Notice and 500-foot Notification Radius OCTOBER 20, 2016 ITEM 6F 34 of 42

35 CITY OF ENCINITAS PLANNING AND BUILDING DEPARTMENT LEGAL NOTICE OF PUBLIC HEARING BY THE PLANNING COMMISSION PLACE OF MEETING: Council Chambers, Civic Center 505 South Vulcan Avenue Encinitas, CA THE ABOVE MENTIONED AGENCY IS AN EQUAL OPPORTUNITY PUBLIC ENTITY AND DOES NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, ETHNIC ORIGIN, NATIONAL ORIGIN, SEX, RELIGION, VETERANS STATUS OR PHYSICAL OR MENTAL DISABILITY IN EMPLOYMENT OR THE PROVISION OF SERVICE. IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT/SECTION 504 REHABILITATION ACT OF 1973, IF YOU NEED SPECIAL ASSISTANCE TO PARTICIPATE IN THIS MEETING, PLEASE CONTACT THE PLANNING AND BUILDING DEPARTMENT AT (760) It is hereby given that a Public Hearing will be held on Thursday, October 20, 2016, at 6 p.m., or as soon as possible thereafter, by the Encinitas Planning Commission to discuss the following hearing item of the City of Encinitas: PROJECT NAME: Pho Ever Beer and Wine CASE NUMBER: MIN/CDP FILING DATE: July 19, 2016 APPLICANT: Tam Dang LOCATION: 120 North El Camino Real (APN ) PROJECT DESCRIPTION: Public hearing to consider a Minor Use Permit and Coastal Development Permit to allow service of beer and wine for on-site consumption through a Type 41 Alcohol Beverage Control (ABC) license for an existing restaurant (Pho Ever). ZONING/OVERLAY: The project site is located in the General Commercial (GC) zoning district and Coastal Zone. ENVIRONMENTAL STATUS: The project is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines. STAFF CONTACT: J. Dichoso, Associate Planner: (760) or jdichoso@encinitasca.gov An appeal of the Planning Commission determination, accompanied by the appropriate filing fee, may be filed by 5:00 p.m. on the 15 th calendar day following the date of the Commission s determination. Appeals will be considered by the City Council pursuant to Chapter 1.12 of the Municipal Code. Any filing of an appeal will suspend this action as well as any processing of permits in reliance thereon in accordance with Encinitas Municipal Code Section (D)(1) until such time as an action is taken on the appeal. The above item is located within the Coastal Zone and requires issuance of a regular Coastal Development Permit. The action of the Planning Commission may not be appealed to the California Coastal Commission. Under California Government Code Section 65009, if you challenge the nature of the proposed action in court, you may be limited to raising only the issues you or someone else raised regarding the matter described in this notice or written correspondence delivered to the City at or before the time and date of the determination. For further information, or to review the application prior to the hearing, please contact staff or contact the Planning and Building Department, 505 South Vulcan Avenue, Encinitas, CA at (760) or by at planning@encinitasca.gov. PBD/JD/T/Legals/ MINCDP Pho Ever ABC Legal OCTOBER 20, 2016 ITEM 6F 35 of 42

36 VICINITY MAP CASE NO.: MIN/CDP LOCATION: 120 North El Camino Real (APN ) Project Site PBD/JD/T/Legals/ MINCDP Pho Ever ABC Legal OCTOBER 20, 2016 ITEM 6F 36 of 42

37 PLANNING COMMISSION AGENDA ITEM 6F OCTOBER 20, 2016 Exhibit PC-5 Case No MIN/CDP Citizen Participation Program Final Report OCTOBER 20, 2016 ITEM 6F 37 of 42

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