CITY OF MERCED Planning & Permitting Division

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1 CITY OF MERCED Planning & Permitting Division STAFF REPORT: #12-11 AGENDA ITEM: 4.1 FROM: Kim Espinosa, PLANNING COMMISSION Planning Manager MEETING DATE: June 20, 2012 PREPARED BY: Julie Nelson, Planner SUBJECT: ACTION: Conditional Use Permit #1170, initiated by Khaled Dalia, property owner. This application involves a request to allow alcohol sales (beer and wine only) inside an existing market located at the southeast corner of T and 9 th Streets (836 T Street), within a Neighborhood Commercial (C- N) Zone. *PUBLIC HEARING* Approve/Disapprove/Modify 1) Environmental Review #12-14 (Categorical Exemption) 2) Conditional Use Permit #1170 SUMMARY The Choice Food Market is located at the southeast corner of 9 th and T Streets (836 T Street) (Attachments A and B). This is a full service market providing meat, produce, home goods, and a small deli area (Attachment C). The business owner is requesting approval to sell beer and wine at the market for off-site consumption [a Type 20 License from the Department of Alcoholic Beverage Control (ABC)]. The market is located within a Neighborhood Commercial (C-N) zone. Within a C-N zone, retail businesses of 20,000 square-feet or less selling alcoholic beverages are considered a Conditional Use, requiring a Conditional Use Permit (CUP). Staff is recommending approval. RECOMMENDATION Planning staff recommends that the Planning Commission approve Environmental Review #12-14 (Categorical Exemption) and Conditional Use Permit #1170 (including the adoption of the Resolution at Attachment H) subject to the following conditions: *1) The proposed project shall be constructed/designed as shown on Exhibit 1 (floor plan) - Attachment B, except as modified by the conditions. *2) All conditions contained in Resolution #1249-Amended ( Standard Conditional Use Permit Conditions except for Condition #16 which has been superceded by Code) shall apply. *3) The proposed project shall comply with all standard Municipal Code and Subdivision Map Act requirements as applied by the City Engineering Department. *4) The Project shall comply with the conditions set forth in Resolution #2113 for Conditional Use Permit #779 previously approved for this project.

2 Planning Commission Staff Report #12-11 Page 2 June 20, 2012 *5) All other applicable codes, ordinances, policies, etc., adopted by the City of Merced shall apply. *6) The developer/applicant shall indemnify, protect, defend (with counsel selected by the City), and hold harmless the City, and any agency or instrumentality thereof, and any officers, officials, employees, or agents thereof, from any and all claims, actions, suits, proceedings, or judgments against the City, or any agency or instrumentality thereof, and any officers, officials, employees, or agents thereof to attack, set aside, void, or annul, an approval of the City, or any agency or instrumentality thereof, advisory agency, appeal board, or legislative body, including actions approved by the voters of the City, concerning the project and the approvals granted herein. Furthermore, developer/applicant shall indemnify, protect, defend, and hold harmless the City, or any agency or instrumentality thereof, against any and all claims, actions, suits, proceedings, or judgments against any governmental entity in which developer/applicant s project is subject to that other governmental entity s approval and a condition of such approval is that the City indemnify and defend (with counsel selected by the City) such governmental entity. City shall promptly notify the developer/applicant of any claim, action, or proceeding. City shall further cooperate fully in the defense of the action. Should the City fail to either promptly notify or cooperate fully, the developer/applicant shall not thereafter be responsible to indemnify, defend, protect, or hold harmless the City, any agency or instrumentality thereof, or any of its officers, officials, employees, or agents. *7) The developer/applicant shall construct and operate the project in strict compliance with the approvals granted herein, City standards, laws, and ordinances, and in compliance with all State and Federal laws, regulations, and standards. In the event of a conflict between City laws and standards and a State or Federal law, regulation, or standard, the stricter or higher standard shall control. *8) No sales of alcoholic beverages shall be allowed between the hours of 2:00 a.m. and 6:00 a.m. 9) No single-serving containers shall be sold separately unless authorized by the City of Merced Police Department. All single-serving beer and wine containers shall be sold as part of a pack or carton. 10) No Loitering signs shall be placed on the building along the alley and the front of the store. 11) The proprietor and/or successors in interest and management shall be prohibited from externally advertising or promoting beer & wine and/or distilled spirits, including but not limited to, window and wall signage. 12) This approval is subject to the business owner being in good standing with all laws of the State of California, including the Alcohol Beverage Control (ABC), City of Merced, and other regulatory agencies. 13) The proprietor and/or successors in interest and management shall comply with all Municipal Codes relating to loitering, open container laws and other nuisance-related issues.

3 Planning Commission Staff Report #12-11 Page 3 June 20, ) The City reserves the right to periodically review the area for potential problems. If problems (on-site or within the immediate area) including, but not limited to, public drunkenness, the illegal sale or use of narcotics, drugs or alcohol, disturbing the peace and disorderly conduct result from the proposed land use, the conditional use permit may be subject to review and revocation by the City of Merced after a public hearing and following the procedures outlined in the Merced Municipal Code. 15) Sufficient lighting shall be provided throughout the site to provide a safe environment for patrons of the market. If lighting does not currently exist, it shall be provided within 60 days of this approval. Details to be worked out with staff. 16) The premises shall remain clean and free of debris at all times. 17) All temporary signs shall be removed from the building and the parking lot area. Only temporary signs approved by the City Planning Department shall be allowed. All temporary signs shall comply with Merced Municipal Code Section (*) Denotes non-discretionary conditions. PROJECT DESCRIPTION The applicant is requesting to approval to sell beer and wine at the existing market located at 836 T St. He would dedicate one cooler (approximately 12 feet long) to the sales of cold beer and wine and another aisle or portion of an aisle to non-refrigerated beer and wine. No changes are being made to the building to accommodate the sale of beer and wine. The cooler is currently located within the building (Attachment D). The sale of beer and wine will only account for a small portion of the market s sales. The owner will continue to offer a full service market including a meat counter and deli. Surrounding Land Existing Use of Land Surrounding Uses (Attachment A) City Zoning Designation North Residential (across 9 th Street) R-1-6 South Church C-N East Vacant Lot C-N West Residential (across T Street) R-1-6 City General Plan Land Use Designation Low Density Residential (LD) Neighborhood Commercial (CN) Neighborhood Commercial (CN) Low Density Residential (LD) BACKGROUND At a meeting in September 1989, the Planning Commission approved Conditional Use Permit Application #779 involving a request to remove an existing gas station, relocate an approximate 4,860-square-foot building for retail uses (grocery store) and provide on-site parking on a 15,000-square-foot parcel at 9 th and T Streets. Although there have been several different name changes/owners, this neighborhood market has operated since its approval. The current business

4 Planning Commission Staff Report #12-11 Page 4 June 20, 2012 owner took over the business in He added the deli area and improved the parking lot. In 2008, the Planning Commission approved Conditional Use Permit #1126 to convert the market to a community hall for funerals, weddings, graduations, and birthday parties. Although this approval was granted, the plan for a community hall was never implemented and the market has remained. Zoning Ordinance Amendment #94-01 was adopted by the City Council on June 19, This amended the Merced Municipal Code dealing with conditional uses in the C-N, C-C, C-T and C- G zoning districts by requiring retail businesses of 20,000 square feet or less to procure a conditional use permit prior to obtaining a license from the ABC for the off-site sale of alcoholic beverages. The ordinance was primarily directed at the proliferation of alcoholic beverage retail establishments, such as liquor stores, and convenience markets, with a particular emphasis on South Merced. As such, establishments of 20,000 square feet and greater, such as conventional grocery stores, were exempted from the CUP process. The primary reason behind exempting conventional grocery stores from the CUP process is the fact that alcoholic beverages comprise only an incidental component of a much larger and diverse inventory. As such, the City Council concluded that conventional grocery stores have typically not contributed to the problems associated with the proliferation and over concentration of alcoholic beverage retail establishments, such as liquor stores and convenience markets. In addition, Zoning Ordinance Amendment #94-01 added a section to the Merced Municipal Code, Section , establishing three criteria by which to evaluate requests for the establishment of off-site sales of alcoholic beverages. The details of those criteria are described in the findings section of this report. FINDINGS/CONSIDERATIONS: General Plan Compliance and Policies Related to This Application A) The proposed project complies with the General Plan designation of Neighborhood Commercial (CN) and the zoning designation of Neighborhood Commercial (C-N). The following General Plan policies are applicable to this application:. Zoning As previously indicated, Zoning Ordinance Amendment #94-01 established three criteria by which to evaluate requests for off-site sales of alcoholic beverages as discussed below: B) Criteria #1 The proposed use will not result in an "undue concentration" of establishments dispensing alcoholic beverages as defined by Section and of the California Business and Professional Code and giving consideration to the California Department of Alcoholic Beverage Control's (ABC) guidelines related to number and proximity of such establishments within a 1,000-foot radius of the site.

5 Planning Commission Staff Report #12-11 Page 5 June 20, 2012 Finding #1 The subject site is located within Census Tract According to the ABC, this census tract is allowed a total of 5 off-sale licenses. As shown on the map at Attachment E, there are currently 2 licenses within this tract. Therefore, this census tract is not considered to be over-concentrated. Although the Census Tract is not over concentrated, there is another market within the same block (Best Buy Market) that also sells alcohol (Type 21 License General Off-sale). C) Criteria #2 The proposed use will not adversely affect the economic and societal welfare of the pertinent community or residentially zoned community in the area of the City involved, after giving consideration to the distance of the proposed use from residential buildings, churches, schools, hospitals, public playgrounds, and other similar uses; and other establishments dispensing, for sale or other considerations, alcoholic beverages including beer and wine. Finding #2 There are multi-family and single-family residential uses, a City park, five churches, and the National Guard Armory located within 1,000 feet of the subject site (Attachment F). Sheehy Elementary School is located just outside the 1,000-foot radius. The sale of beer and wine is not new to this area. As previously mentioned there is a market down the street from this site that sells alcohol. Based on input from the Police Department and the fact that alcohol is already available in this area, staff does not anticipate the issuance of an ABC license at this location will adversely affect the economic and societal welfare of the surrounding area. D) Criteria #3 The crime rate in the area of the proposed site. Particular attention shall be given to those crimes involving public drunkenness, the illegal sale of narcotics, disturbing the peace, and disorderly conduct. Finding #3: The Police Department recorded 180 incidents within a 1000-foot radius of this site for the period of December 14, 2011 to June 14, None of these incidents were directly contributed to this site. The table below shows the number of incidents involving the types of crimes listed above within the 1000-foot radius and at the project site. Typically the number of incidents reported City-wide for a 6-month time period average around 60,000 incidents. Assuming this average, the 180 calls to this area are equal to 0.3% of the overall crime within the city.

6 Planning Commission Staff Report #12-11 Page 6 June 20, 2012 Incidents Reported December 14, 2011 to June 14, 2012 Incident Type Number of Incidents Public Intoxication 4 Disturbance (assaults) 26 MMC* 1 Drug/Narcotics violations 6 *Municipal Code Violations regarding open containers, drinking in public, etc. Building Design E) The applicant is not proposing any changes to the building. The cooler that will be used to display refrigerated beverages is already in place inside the store (Attachment D). Non-refrigerated items will be displayed on one of the existing aisles within the market. Site Design F) There are no changes proposed for the site. Neighborhood Impact/Interface G) A market has been at this location for many years. Although it is surrounded by residential uses and there are other sensitive uses in the area (i.e., churches, school, etc.), City staff is not aware of any problems that have arisen from this market. Because the addition of alcohol sales will be a small portion of the business and is intended to be a convenience for customers visiting the market for other groceries rather than to attract additional customers, the impact of the addition of alcohol sales is not expected to create a large impact. Condition #9 prohibits the sale of single items. This will discourage customers from coming in to buy alcohol to drink immediately in the area. The market is open from 8:00 a.m. to 8:00 p.m. These hours help to discourage the idea of the market being a primary source of alcohol. The police department participated in the review of this project and did not object to the issuance of a license with conditions in place to restrict the sale of single containers. The Police Department feels the conditions of approval included in the staff report provide additional tools for them to use in case problems arise that are directly related to the sale of alcohol. Public hearing notices were sent to all property owners within 300 feet of the site. To date, staff has not received any comments from the neighborhood. Environmental Clearance H) The Planning staff has conducted an environmental review (Initial Study # 12-14) of the project in accordance with the requirements of the California Environmental Quality Act (CEQA), and a Categorical Exemption is being recommended (Attachment G). Attachments: A) Location Map B) Photo of Building

7 Planning Commission Staff Report #12-11 Page 7 June 20, 2012 C) Floor Plan D) Cooler E) Map of ABC Licenses F) Map of Sensitive Use G) Categorical Exemption H) Draft Planning Commission Resolution Ref: N:shared/planning/PC Staff Reports/SR #12-11

8 Location Map Single-Family Dwellings Single-Family Dwellings Single-Family Dwellings 9TH ATTACHMENT A Single-Family Dwellings T Subject Site Best Buy Market S Single-Family Dwellings Multi-Family Dwellings Church 8TH

9 ATTACHMENT B

10 ATTACHMENT C

11 ATTACHMENT D

12 ATTACHMENT D

13 140 HERITAGE ATTACHMENT E ABC Licenses by Census Tract MT VERNON LOPES 7TH WARDROBE Legend Off-sale License Type! 20 ") 21 EAGLE WEST GROGAN WEST X V U Census Tract T 1ST W W ") Mel's Liquor Subejct Site 6TH GEORGE 3RD S LESHER 4TH 2ND 12TH ") ") c Gus & Nick's ") Best Buy Market 1,000-ft. Radius S R Q 3RD T Circle R Min Mart Shop n Save Market P MIMI R St. Mini Mart 6TH ") 7TH 4TH 5TH!!! ") R St Shell California Liquors O P CHILDS Q! Costco O 9TH! N P 14TH El Porvenir Grocery 12TH 6TH! Valles Market M 8TH 5TH 10TH CANAL 6TH K 15TH 7TH 16TH 59 N 99 13TH 12TH 11TH K MAIN 14TH MARTIN LUTHER KING JR CHILDS ± 99 ")

14 Sensitive Uses T 10TH S 12TH 12TH W R 9TH 11TH ATTACHMENT F 7TH WEST Subejct Site Ý Ý Ý WARDROBE 6TH National Guard Armoury Q WEST V GEORGE U LESHER 1,000-ft. Radius Stephen Leonard Park Sheehy School Ý Ý 7TH 8TH ± P

15 ATTACHMENT G

16 CITY OF MERCED Planning Commission Resolution # WHEREAS, the Merced City Planning Commission at its regular meeting of June 20, 2012, held a public hearing and considered Conditional Use Permit #1170, initiated by Khaled Dalia, property owner. This application involves a request to allow alcohol sales (beer and wine only) inside an existing market located at the southeast corner of T and 9 th Streets (836 T Street), within a Neighborhood Commercial (C-N) Zone; also known as Assessor s Parcel No ; and, WHEREAS, the Merced City Planning Commission concurs with Findings A through H of Staff Report #12-11; and, WHEREAS, after reviewing the City s Draft Environmental Determination, and discussing all the issues, the Merced City Planning Commission does resolve to hereby adopt a Categorical Exemption regarding Environmental Review #12-14, and approve Conditional Use Permit #1170, subject to the Conditions set forth in Exhibit A attached hereto. Upon motion by Commissioner, seconded by Commissioner, and carried by the following vote: AYES: NOES: Commissioner(s) Commissioner(s) ABSENT: Commissioner(s) ABSTAIN: Commissioner(s) ATTACHMENT H

17 PLANNING COMMISSION RESOLUTION # Page 2 June 20, 2012 Adopted this 20 th day of June 2012 ATTEST: Chairperson, Planning Commission of the City of Merced, California Secretary Attachment: Exhibit A Conditions of Approval n:shared:planning:pc Resolutions:CUP#1170 Khaled Dalia Choice Food Market

18 Conditions of Approval Planning Commission Resolution # Conditional Use Permit # The proposed project shall be constructed/designed as shown on Exhibit 1 (floor plan) - Attachment B of Staff Report #12-11, except as modified by the conditions. 2. All conditions contained in Resolution #1249-Amended ( Standard Conditional Use Permit Conditions except for Condition #16 which has been superceded by Code) shall apply. 3. The proposed project shall comply with all standard Municipal Code and Subdivision Map Act requirements as applied by the City Engineering Department. 4. The Project shall comply with the conditions set forth in Resolution #2113 for Conditional Use Permit #779 previously approved for this project. 5. All other applicable codes, ordinances, policies, etc., adopted by the City of Merced shall apply. 6. The developer/applicant shall indemnify, protect, defend (with counsel selected by the City), and hold harmless the City, and any agency or instrumentality thereof, and any officers, officials, employees, or agents thereof, from any and all claims, actions, suits, proceedings, or judgments against the City, or any agency or instrumentality thereof, and any officers, officials, employees, or agents thereof to attack, set aside, void, or annul, an approval of the City, or any agency or instrumentality thereof, advisory agency, appeal board, or legislative body, including actions approved by the voters of the City, concerning the project and the approvals granted herein. Furthermore, developer/applicant shall indemnify, protect, defend, and hold harmless the City, or any agency or instrumentality thereof, against any and all claims, actions, suits, proceedings, or judgments against any governmental entity in which developer/applicant s project is subject to that other governmental entity s approval and a condition of such approval is that the City indemnify and defend (with counsel selected by the City) such governmental entity. City shall promptly notify the developer/applicant of any claim, action, or proceeding. City shall further cooperate fully in the defense of the action. Should the City fail to either promptly notify or cooperate fully, the developer/applicant shall not thereafter be responsible to EXHIBIT A of Planning Commission Resolution # Page 1

19 indemnify, defend, protect, or hold harmless the City, any agency or instrumentality thereof, or any of its officers, officials, employees, or agents. 7. The developer/applicant shall construct and operate the project in strict compliance with the approvals granted herein, City standards, laws, and ordinances, and in compliance with all State and Federal laws, regulations, and standards. In the event of a conflict between City laws and standards and a State or Federal law, regulation, or standard, the stricter or higher standard shall control. 8. No sales of alcoholic beverages shall be allowed between the hours of 2:00 a.m. and 6:00 a.m. 9. No single-serving containers shall be sold separately unless authorized by the City of Merced Police Department. All single-serving beer and wine containers shall be sold as part of a pack or carton. 10. No Loitering signs shall be placed on the building along the alley and the front of the store. 11. The proprietor and/or successors in interest and management shall be prohibited from externally advertising or promoting beer & wine and/or distilled spirits, including but not limited to, window and wall signage. 12. This approval is subject to the business owner being in good standing with all laws of the State of California, including the Alcohol Beverage Control (ABC), City of Merced, and other regulatory agencies. 13. The proprietor and/or successors in interest and management shall comply with all Municipal Codes relating to loitering, open container laws and other nuisance-related issues. 14. The City reserves the right to periodically review the area for potential problems. If problems (on-site or within the immediate area) including, but not limited to, public drunkenness, the illegal sale or use of narcotics, drugs or alcohol, disturbing the peace and disorderly conduct result from the proposed land use, the conditional use permit may be subject to review and revocation by the City of Merced after a public hearing and following the procedures outlined in the Merced Municipal Code. 15. Sufficient lighting shall be provided throughout the site to provide a safe environment for patrons of the market. If lighting does not currently exist, it shall be provided within 60 days of this approval. Details to be worked out with staff. EXHIBIT A of Planning Commission Resolution # Page 2

20 16. The premises shall remain clean and free of debris at all times. 17. All temporary signs shall be removed from the building and the parking lot area. Only temporary signs approved by the City Planning Department shall be allowed. All temporary signs shall comply with Merced Municipal Code Section n:shared:planning:pc Resolutions:CUP#1170 Exhibit A EXHIBIT A of Planning Commission Resolution # Page 3