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HomeMy WebLinkAboutCC Minutes 2009-09-21SRCC Minutes (Regular) 09/21/2009 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL. MONDAY. SEPTEMBER 21, 2009 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk OPEN SESSION — COUNCIL CHAMBERS — 7:00 PM None CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM None ORAL COMMUNICATIONS OF AN URGENCY NATURE: Present: Albert J. Boro, Mayor Barbara Heller, Vice -Mayor Greg Brockbank, Councilmember Damon Connolly, Councilmember Cyr N. Miller, Councilmember Absent: None 8:08 PM Andv's Summer Festival: Referring to the minutes of September 8, 2009, David Maver requested an update on concerns he expressed regarding parking and security at the Andy's Market event to be held on September 26, 2009. a) Measure G: b) Sutter Health. and c) Public Works Department: Barry Taranto stated that despite the City's dire need for a new Fire Department headquarters, he would not support Ballot Measure G, but would be in favor of work being done on the library. Regarding Sutter Health, he stated that they had purchased the land around Marin Square and questioned whether the City Council felt it appropriate, not knowing what their intended use was. He added that he would raise the question at candidates' nights to hear their position on the issue. Mr. Taranto expressed thanks to the Public Works employee who had responded within less than 24 hours to have a street light replaced. Impounded Vehicles: Chris Roqers stated that a quadriplegic friend of his had his car impounded for driving illegally, and was denied its return from Redhill Tow, even for humanitarian and medical reasons. Despite offering $1,000 more than wholesale to purchase the vehicle, Mr. Rogers' offer was refused and he considered egregious. He noted that he and Officer Joel Fay both documented the situation. Mayor Boro stated that the Police Department was looking into this matter. Ken Nordhoff, City Manager, stated that he would work with Captain Jeff Franzini and report back to Mr. Rogers. Mr. Rogers thanked Officer Fay. Police Department: Juan Paredes, owner of Marin Auto Consignment, stated that he purchased three impounded cars; however, he was not permitted to get the cars out of impound, despite being the new legal owner. He felt that the San Rafael Police Department did not assist him to get the cars out of impound. Any records relating to an agenda item, received by a majority or more of the Council less than 72 hours before the meeting, shall be available for inspection in the City Clerk's Office, Room 209, 1400 Fifth Avenue, and placed with other agenda -related materials on the table in front of the Council Chamber prior to the meeting. American Sign Language interpreters and assistive listening devices may be requested by calling (415) 485-3198 (TDD) or (415) 485- 3064 (voice) at least 72 hours in advance. Copies of documents are available in accessible formats upon request. Public transportation is available through Golden Gate Transit, Line 22 or 23. Paratransit is available by calling Whistlestop Wheels at (415) 454-0964. To allow individuals with environmental illness or multiple chemical sensitivity to attend the meeting/hearing, individuals are requested to refrain from wearing scented products. CC 09-21-09 Mr. Nordhoff stated that subsequent to speaking with Captain Franzini today, staff would look into the impound matters and respond to the last two speakers, as well as the City Council. Police Department: John Fuerv, attorney for Juan Paredes, stated that he had accompanied Mr. Parades the previous Friday to get three newly purchased vehicles out of impound. Having twice been denied a hearing by Police Sergeant, Christopher Coale, when Mr. Fuery indicated to Sergeant Coale that he had violated his client's substantive and due process rights by refusing a hearing on the previous occasion, he had permitted them to retrieve one car. Mr. Fuery reported that Mr. Paredes buys and sells cars, taking impounded cars off the street and selling them to someone else, which helped law enforcement. He claimed that Officer Coale refused them a hearing or allow them to speak to a supervisor, due to unavailability, hence his reason for addressing the City Council. Mr. Fuery believed that his client, as a new legal owner of the cars, had the same rights to the exceptions under Vehicle Code Section 14601, et seq. He requested that the City Council assist his client to have his substantive and procedural due process right to a hearing on why he was not allowed to disimpound his newly purchased cars when he in fact was the new legal owner. He added that because of cost, time was of the essence. CONSENT CALENDAR: Councilmember Miller moved and Vice -Mayor Heller seconded, to approve the Consent Calendar as follows: CONSENT CALENDAR: ALL MATTERS ON THE CONSENT CALENDAR ARE TO BE APPROVED BY ONE MOTION, UNLESS SEPARATE ACTION IS REQUIRED ON A PARTICULAR ITEM: Approval of Minutes of Regular City Council Meeting of September 8, 2009 (CC) Monthly Investment Report for Month Ending August, 2009 (Fin) - File 8-18 x 8-9 Resolution Approving Use of State of California Office of Traffic Safety Grant Funds in the Amount of $29,225.00 for "Click it or Ticket" Mini -Grant for Seatbelt Education and Enforcement Program from October 1, 2009 through September 8, 2010 (PD) -File 9-3-30 4. Resolution Authorizing the Temporary Closure of A Street Between Second & Third Streets from 12 -Noon — 7:00 p.m. for the Grand Opening Celebration of the Community Media Center of Marin on October 10, 2009 (RA) -File 11-19 Resolution Authorizing Temporary Closure of Alto Street from Larkspur Street to Belvedere Street, Belvedere Street from Louise Street to Verdi St. and Tiburon Street from Belvedere to Market Street to Allow for the 5th Annual International Festival on Sunday, October 11, 2009 from 9:00 a.m. — 6:00 p.m. (RA) — File 11-19 RECOMMENDED ACTION: APPROVAL OF THE FOLLOWING ACTION: Approve as submitted. Accepted report. RESOLUTION NO. 12834 RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $29,225.00 FOR "CLICK IT OR TICKET" MINI GRANT SEATBELT EDUCATION AND ENFORCEMENT PROGRAM OCTOBER 1, 2009 THROUGH SEPTEMBER 8, 2010 RESOLUTION NO. 12835 RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF "A" STREET BETWEEN SECOND STREET & THIRD STREET, 12 NOON — 7PM FOR THE GRAND OPENING CELEBRATION OF THE COMMUNITY MEDIA CENTER OF MARIN ON OCTOBER 10TH, 2009 RESOLUTION NO. 12836 RESOLUTION AUTHORIZING TEMPORARY CLOSURE OF ALTO STREET FROM LARKSPUR STREET TO BELVEDERE STREET, BELVEDERE STREET FROM LOUISE STREET TO VERDI STREET, AND TIBURON STREET FROM MARKET STREET TO LARKSPUR STREET TO ALLOW FOR THE 5TH ANNUAL INTERNATIONAL FESTIVAL, CC 09-21-09 Resolution Authorizing Temporary Street Closure of Fourth Street From F Street to H Street for the Downtown San Rafael West End Fall Farmers' Market Celebration Every Thursday in October 2009 (RA) -File PUBLIC HEARING: SUNDAY, OCTOBER 11T", 2009 FROM 9:00 A.M. TO 6:00 P.M. RESOLUTION NO. 12837 RESOLUTION AUTHORIZING TEMPORARY STREET CLOSURE OF FOURTH STREET FROM F STREET TO H STREET FOR THE DOWNTOWN SAN RAFAEL WEST END — FALL FARMERS' MARKET CELEBRATION EVERY THURSDAY IN OCTOBER 2009 (October 1 through October 22, 2009) 7. CONSIDERATION OF RESOLUTIONS AND AN ORDINANCE RE: REZONING (ZC08-001) SUBDIVISION (S08- 004), ENVIRONMENTAL & DESIGN REVIEW (ED09-015) AND EXCEPTION (ED09-005) TO SUBDIVIDE AN EXISTING 4.24 ACRE HILLSIDE RESIDENTIAL PARCEL AT 45 HAPPY LANE (CD) — FILE 10-3 Mayor Boro declared the public hearing opened. Kraig Tambornini, Senior Planner, stated that the project consisted of a 2 -lot subdivision in a hillside area of the Sun Valley neighborhood. Currently, the lot was developed with a single-family home and several outbuildings with approximately 4 acres of vacant land, predominantly in the hillside area. He noted that the subdivision would create one vacant lot above the existing residential neighborhood. Noting that the two major entitlements were a rezoning and a lot split subdivision, Mr. Tambornini reported that the secondary entitlements were required for design review to approve the development plan for the new hillside lot and an exception to request a reduction in a site setback from 15 feet to 10 feet for the new lot. He stated that staff also had to prepare an environmental document pursuant to CEQA (California Environmental Quality Act). They conducted an environmental review, prepared an initial study and Mitigated Negative Declaration in compliance with CEQA. Explaining that CEQA looks at physical impacts on the environment generated by projects, he indicated that most of the impact from this project had been evaluated by the General Plan under the build -out scenario; however, the individual impacts of the project would affect air quality from grading, have traffic impacts, potential drainage and potential geological construction impacts because of being in a hillside area. He noted that all of the impacts were relatively common and were addressed through the General Plan, through mitigation fees and through certain reports that needed to be prepared for the project. As a result of the environmental review, Mr. Tambornini reported that staff had prepared a Mitigated Negative Declaration indicating that the project met CEQA requirements; therefore, the City Council's first action would be to review that document and accept it as addressingthat it addressed the project's environmental impact. Indicating there were no outstanding issues with this project, Mr. Tambornini reported that it was reviewed by the Design Review Board in June and by the Planning Commission in August, and both Boards favorably recommended the project as designed and presented to the Council. Additionally, he stated that the project was vetted through staff, the Fire Department, the Public Works Department, Marin County Open Space and the San Rafael Parks Department to look at potential conditions. All of the conditions which the departments and agencies felt important were included in the project. Mr. Tambornini recommended approval of the project because it was consistent with the General Plan, in particular it implements the hillside residential land -use designation and most importantly, he felt it would build out the site and secure some significant hillside open space as permanent private open space; therefore closing out any further development of the site and retaining important significant hillside for the City in perpetuity. There being no comment from the audience, Mayor Boro closed the public hearing. Mayor Boro stated that obviously the Planning Commission, the Design Review Board and Mr. Tambornini did a great job with the project. Vice -Mayor Heller moved and Councilmember Brockbank seconded, to adopt the Resolution. a) RESOLUTION NO. 12838 — RESOLUTION ADOPTING A MITIGATED NEGATIVE DECLARATION FOR THE RESIDENTIAL REZONE AND TWO -LOT SPLIT PROJECT AT 45 CC 09-21-09 HAPPY LANE; APN 010-011-53 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Brockbank moved and Councilmember Miller seconded, to adopt the Resolution. b) Passed ordinance no. 1877 to print - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AN AMENDMENT TO THE ZONING MAP (ZC08-001), ADOPTED BY REFERENCE BY SECTION 14.01.020 OF THE MUNICIPAL CODE OF SAN RAFAEL, CALIFORNIA, SO AS TO RECLASSIFY CERTAIN REAL PROPERTY FROM SINGLE-FAMILY RESIDENTIAL R2a-H DISTRICT TO SINGLE-FAMILY RESIDENTIAL R20 DISTRICT FOR THE RESIDENTIAL REZONE AND TWO -LOT SPLIT PROJECT AT 45 HAPPY LANE; APN 010-011-53 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Connolly moved and Vice -Mayor Heller seconded, to adopt the Resolution. c) ADOPTED RESOLUTION NO. 12839 — RESOLUTION APPROVING SUBDIVISION (S08-004), ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED09-015), AND EXCEPTION (EX09-005) FOR HAPPY LANE RESIDENTIAL REZONE AND SUBDIVISION (LOT -SPLIT) PROJECT AT 45 HAPPY LANE; APN 010-011-53 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None APPEAL HEARING: 8. 330 Bellam Blvd., (Mi Pueblo Foods) - APPEAL OF THE PLANNING COMMISSION'S DECISION TO DENY AN APPEAL AND UPHOLD THE ZONING ADMINISTRATOR'S APPROVAL OF AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED09-014), USE PERMIT (UP09-015), SIGN PERMIT (SR09-012) AND PUBLIC CONVENIENCE OR NECESSITY (PCN09-001) TO ALLOW: a) EXTERIOR MODIFICATIONS TO THE EXISTING COMMERCIAL BUILDING, INCLUDING AN ALTERNATION TO THE BUILDING ENTRY, NEW COLORS AND MATERIALS ON THE BUILDING AND NEW WOODEN TRELLISES AND COLUMNS ALONG FRONT OF BUILDING; b) OUTDOOR DINING AREA ON THE PRIVATE SIDEWALK AREA IN FRONT OF THE STRUCTURE: c) NEW BUILDING SIGNS: AND d) ALCOHOL SALES IN THE NEW GROCERY STORE FOR CONSUMPTION OFFSITE. APN 009-280-06; GENERAL COMMERCIAL (GC) DISTRICT; RUTH DONOHUGH AND BRUCE LIVINGSTON/MARIN INSTITUTE, APPELLANTS, DAVID MENA/MENA ARCHITECTS, APPLICANT; SIMEON COMMERCIAL PROPERTIES, OWNER; FILE NO. AP09-004 (CD) Mayor Boro declared the Public Hearing opened. Raffi Bolovan, Principal Planner, stated that the project proposed to reuse an existing commercial building, which was formerly used as Circuit City, with a new full-service grocery store, Mi Pueblo Foods. In order to convert the building into a grocery store, he stated that the proposed improvements included the complete interior remodeling of the store, to permit the sale of food, produce, household goods, prepared foods, delicatessan, bakery and other ancillary uses, with no additional square footage being created. Mr. Boloyan reported that the project was originally approved by the Zoning Administrator on May 2009 .Following that hearing, the decision was appealed by an adjacent business owner, Ruth Donohugh. The appeal letter included eleven different points, most of which were related to the food service component of the grocery store and whether it rose to the level of a stand-alone restaurant or fast-food establishment, lack of parking in the area, concern with traffic and overconcentration of alcohol sales. CC 09-21-09 Reporting that the Planning Commission conducted a public hearing on the appeal on July 14, 2009, Mr. Boloyan reported that they first determined that although the amount of the dining area contained in the grocery store may be slightly larger than other grocery stores in Marin County, they felt that the food -service portion of the use was not more than an ancillary use. He noted that the Planning Commission also determined that the grocery store would be a beneficial use for the area and would serve a long-standing desire of the community to have a full-service grocery store in the Canal neighborhood. With that point, the Planning Commission also felt that the introduction of this use in the area could actually reduce traffic impacts. Regarding liquor sales, Mr. Boloyan stated that even though the Planning Commission understood the concerns expressed by those present on the impacts of alcohol on the community, they found that the proposed liquor sales of Mi Pueblo would not be a significant amount and would be typical of most full-service grocery stores. With a vote of 4-0, with 3 commissioners absent, the Planning Commission denied the appeal and upheld the Zoning Administrator's approval with certain minor modifications to the conditions of approval. Following that decision, Mr. Boloyan reported two separate appeals were filed. The first was filed by the same appellant who filed the original appeal, Ms. Donohugh, and the second separate appeal was filed by Bruce Livingston of The Marin Institute, a Canal -based alcohol watchdog group. The first appeal, by Ms. Donohugh, identified four points, which primarily related to the grocery store containing a fast-food restaurant and the concern over it being a high volume food service establishment and therefore should require a use permit and additional parking on site. Speaking to the staff report's response to these concerns, Mr. Boloyan addressed what he felt was the primary point of the appeal — whether or not the food service or other components of the grocery store rose to a level above an accessory or ancillary use. He noted that the issue had been raised throughout the project at both the Planning Commission and Zoning Administrator hearings. When reviewing land uses to determine whether they are allowed or conditionally allowed in a zoning district, Mr. Boloyan explained that the City makes its land use decisions based on the primary use of the property and nearly all types of land uses included ancillary uses. He noted that a light industrial building for a contractor would have a large storage room for equipment and materials; however, also would have an office, conference room and bookkeeping office. Therefore, in evaluating land uses, the City considered this a light -industrial building with with an ancillary office — sub -uses are not classified separately. Reiterating that land uses were not made on ancillary uses, Mr. Boloyan explained that in this particular case, both the Planning Commission and staff found that the food service portion of theuse was not determined to be a separate use, but rather ancillary, based on the fact that the area of the food service - deli, e food preparation area and seating - was approximately 3% of the total floor area of the entire store, and that the anticipated sales from the food service component would be about 8% of the total sales. He noted the food service component was not located in a separate tenant space, rather integral with the floor plan of the grocery store. Retail sales of prepared food, delis, and bakeries were common and integral with nearly all grocery stores throughout the City, Marin County and the state. Mr. Boloyan reported that although the Planning Commission did acknowledge that the food service component, particularly the indoor dining area, might be larger than other grocery stores, they did not find that it rose to a level to be more than an ancillary use. Since Mi Pueblo's proposed use would be considered a full-service grocery store with ancillary food service, no use permit or additional parking requirements had been applied to the project. Addressing the second appeal ( Marin Institute), Mr. Boloyan stated it cited two main points: 1) That the Planning Commission failed to follow the letter of the law in part due to facts ignored by the Zoning Administrator; and 2) That the Planning Commission inaccurately considered four of the PCN criteria. With regard to PCNs and the City's role in alcohol licenses, Mr. Boloyan explained that PCNs were Public Convenience or Necessities. The State Department of Alcohol and Beverage Control (ABC) had the authority to deny or grant alcohol licenses -- the City does not have that power. However, he added that in certain circumstances where there was an undue concentration of alcohol licenses, ABC would not issue a new off -sale license or certain on -sale license unless the local government body first granted a finding of Public Convenience or Necessity. He added that the undue concentration was established by the state as a trigger to allow for local control in over concentrated areas. Addressing the PCN process, Mr. Boloyan stated that it had been established to allow local control and allow the City to consider additional licenses in over concentrated areas and, if the City determined that there would be a public convenience or a public necessity granted by the granting of an additional license, it could grant a PCN with ABC to issue the alcohol license. He added that both the Planning Commission and the Zoning Administrator were very clear on the scope of review of the City's role in the PCN process. This was based on the City's established CC 09-21-09 process and procedures for reviewing PCNs. Mr. Boloyan noted that City Council Resolution #10299,governs and establishes the procedures for the review of PCNs and the criteria. He noted that seven criteria were to be considered byt the City as part of its determination whether public convenience or necessity would be served. The appellant indicated that the proposed off -sale license for Mi Pueblo would not meet four of the criteria and, therefore, should be denied; however, the City's PCN Resolution was very clear in that it indicated the City was to consider the seven criteria as part of their review, but did not mean that all seven criteria would be mandatory. The intent of the review criteria was to consider the specific request for a PCN, determine whether there would be a public convenience or necessity served by the granting of a PCN, by the addition of another license in the area, and to lastly consider the request in light of the seven review criteria. Responding to the four specific review criteria that the appellant claimed the project would not comply with. 1) Whether the issuance of a liquor license would increase the total number of licenses in the City or the census tract - ; Mr. Boloyan stated that the granting of the license would increase the number of licenses - , thus the process established for PCN to allow the City to have some say as to whether or not another license should be granted. 2) Would issuing the license serve a segment of the population not currently being served — Mr. Boloyan reported that a review of the ABC licenses for this census tract in the Canal neighborhood indicated that there were 29 other licenses in the area; therefore ABC determined that this was an over concentration. However, looking at the 29 other licenses in more detail, four were for off -sale of beer, wine and hard alcohol (known as a Type 21), which was the same type of license proposed by Mi Pueblo. He added that the other 25 licenses were for on-site retail, restaurants, wine distributors, bars, etc. — only four were for off -sale associated with convenience or grocery type stores. Mr. Boloyan reported that the PCN resolution requires that the applicant demonstrate and justify why the public convenience or necessity would be served by the issuance of the additional license. Both the Planning Commission and the Zoning Administrator found that after review of their documentation, the new license for the Mi Pueblo use would serve a public convenience or necessity to the shoppers of the facility because it would afford customers the opportunity to buy beer, wine or liquor in conjunction with typical shopping for purchases of groceries, household goods, produce needs and other supplies typically found in other full-service grocery stores. Since there were no other large, full-service grocery stores in the Canal neighborhood, adding the new license would fill that which would make it a unique type of license in that case In its review and action of the project, the Planning Commission concluded that the off -sale of beer, wine and hard alcohol was a common component of nearly all full-service grocery stores in the City and the County of Marin and given the operational plan, the amount of area that was dedicated to liquor sales, the expectation that liquor sales would make up less than 4% of sales from the store, would be a minor portion of the store's total merchandise sales. 3) Whether the business would be located within 1,000 feet of an incompatible facility, such as a day-care center, school, rehabilitation center, or a location designed and operating to serve minors - Mr. Boloyan confirmed that the facility would be located next to the County Health & Wellness Center, as well as a small day-care center in the vicinity. Staff consulted with the Police Department to solicit their input and experience with off -sale licenses in the Canal neighborhood and found that there were no issues or concerns with the nature of the proposed use, given that alcohol sales was such a minor part of the store's sales and that no on- site alcohol consumption was proposed - customers could not consume alcohol on-site even in the indoor or outdoor seating areas. Mr. Boloyan clarified that display of alcohol was limited to two interior merchandise display racks located in the corner of the building and not visible from the outside of the store. He added that the majority of alcohol sales from full-service grocery stores were not typically stand-alone sales, as with smaller liquor stores. Having reviewed five comparable grocery stores within the City which were all located near potentially incompatible facilities, the Police Department found that these full-service grocery stores with minor alcohol sales did not increase alcohol-related crimes in the area and would not be incompatible with those surrounding uses. 4) Whether the potential licensee was located in a high crime area — Mr. Boloyan explained that the City's PCN resolution equires the City to look at "part -one crimes" -- major crimes, including burglary, homicide, rape, assault and robbery. The crime statistics that the appellants submitted with their appeal letter were from the City's Police Department's website, which were not "part -one crimes" rather they were calls for service. encountered within the Canal area. Consistent with the City's resolution, Mr. Boloyan reported that the Police Department had analyzed the part -one crimes in the Canal and, having compared it to the rest of San Rafael's part -one crimes averages, they found that the Canal area exceeded the remainder of the City by 4.3%. Therefore, consistent with the City's resolution standard of a 20% threshold for recommending denial of an alcohol license of a PCN, this fell below the 20% threshold and therefore, was not recommended for denial by the Police Department. Mr. Boloyan reported that all of the neighborhood correspondence received to date from the Zoning Administrator hearing and Planning Commission hearing were included in tonight's packet. Two pieces of correspondence were CC 09-21-09 received subsequent to the distribution of the staff report — a letter from Ann Linn and a follow-up letter from one of the appellants, Marin Institute, and copies were provided to the City Council. In conclusion, Mr. Boloyan reported that the issues raised by both appeals were adequately addressed and analyzed as part of the Zoning Administrator and Planning Commission hearings. Based on the analysis contained in the staff report, staff recommends that both appeals had no merit and should be denied, and the Zoning Administrator approval should be upheld. Ruth Donohuah, appellant and owner of Picante Taqueria, stated that although she was not against having a grocery store in the neighborhood or Mi Pueblo in any way, she was against t having a 5,266 square foot fast-food restaurant being placed in the middle of a grocery store without providing the appropriate parking or review or traffic. Referring to a picture which she had distributed to the Council of a virtually identical operation in Pittsburg, albeit the current proposal could accommodate more people. Noting that it was an unusual grocery store set-up, Ms. Donohugh stated that a conditional use permit would be required for a fast-food restaurant of this size. It was an impacted area and Mr. Boloyan's example of ancillary with typical industrial use would not apply because a restaurant use is an increased requirement for parking. Stating that a restaurant requires 3-5 times more parking, Ms. Donohugh claimed that the proposed site would not accommodate that amount. She questioned why, during the appeal process, no one had attempted to meet the zoning ordinance requirements. Displaying pictures of Whole Foods', Safeway's and Woodland Market's restaurant areas, she requested that the Council compare the size of the areas to that of Mi Pueblo's. Fred Minnes, husband of the appellant, stated that their analysis and the facts in the zoning ordinance were described succinctly in their July 21, 2009 letter and hoped that Council would consider this when making their decision. Wishing to clarify the appeal, he explained that it was not about business competition, rather equal application of the law and fairness in following the established rules. Noting competition requires a level playing field where all the players had the same rules, he stated that competition had been raised by the project's proponents and felt that Mi Pueblo sought a competitive advantage by avoiding rules which applied to everyone else. He expressed concern that Mi Pueblo sought to distract attention away from the rules by describing this project as benign and attractive to the community. Stating the project would include a grocery store, to which they had no objection, albeit there were other grocery stores in the neighborhood, Mr. Minnes added that Mi Pueblo initially claimed that the project would generate more than $500,000 of sales tax revenue, which was not a net number, because other grocery stores would lose sales and pay less tax. He noted that the Planning Department agenda item estimated the sales tax as only $300,000. Noting Mi Pueblo's claim of creating new jobs, Mr. Minnes he felt it likely that some jobs would also be lost. In response to Mi Pueblo's claim of contributions to the community, he explained that Ruth Donohugh had done countless good deeds for the community in the nearly twenty years that she had been in business and had never sought public recognition for that. He believed other businesses in the neighborhood also made similar contributions to the community. Although he felt that the net gain from Mi Pueblo was speculative and possibly oversold, resulting in the City incurring costs, this was not what the appeal was about - the application of the clear terms in the zoning ordinance. Referring to section 14.03.010, -- the City Council's introduction to the zoning ordinance -- he quoted "the purpose of the definitions in the zoning ordinance is to promote consistency and precision in the application and interpretation of zoning regulations." To accomplish that objective, Mr. Minnes stated that the City Council had over 220 definitions in the zoning ordinance. The Planning Department relied on only two terms: primary use and ancillary use, neither one of which was among the 220 definitions that the Council had placed in the zoning ordinance for consistency and precision. Moreover, this ancillary use concept was invented, and that if it were to be used as a benchmark or pivotal definition, it would have included it in the zoning ordinance. As far as he could tell, Mr. Minnes believed the term "ancillary use" was a type of code — meaning "if someone thinks it can be characterized as an ancillary use, it can be ignored" and that was not what the zoning ordinance did. Mr. Minnes reported that the Planning Department along the way created these criteria for determining primary and ancillary uses. He noted they discussed separate buildings, walls and tenants and played the numbers game of percentages, which ignored the very large numbers that underlay those percentages, and none of this was in the zoning ordinance. The Planning Department's conceded that the ancillary concept was nowhere in the zoning ordinance; however, used the concept of ancillary to ignore the existence of the fast-food restaurant within Mi Pueblo, which he felt was clearly described in the July 21St letter. Mr. Minnes stated that the Planning Department, Mi Pueblo and the Planning Commission agreed that there would be a restaurant. He noted that Mi Pueblo applied for and received an administrative permit for its outdoor dining CC 09-21-09 area, which applied by definition to an indoor food service establishment and therefore; no one could deny that there would be a restaurant inside Mi Pueblo, notwithstanding the use of ancillary and primary and the word "deli." He reported that the restaurant contained at least 25 tables and 94 chairs with a large, commercial kitchen — as identified on the plan displayed -- and would occupy over 5,000 square feet. The Planning Department's agenda report characterized this as "not atypical" but perhaps "somewhat larger than other local grocery stores." Mr. Minnes inquired as to how many members of the Council had seen any grocery store in San Rafael or in Marin County that contained anything resembling this order of magnitude, adding that it was extraordinary and enormous. Mr. Minnes stated that in the Canal neighborhood, the Mi Pueblo fast-food restaurant would be larger than Burger King and Wendy's combined, and would have many more outdoor tables and chairs. Mr. Minnes concluded that the restaurant was a fast-food restaurant and the Planning Department and the Planning Commission had agreed that the Mi Pueblo restaurant satisfied the basic definition for a fast-food restaurant in the zoning ordinance. The only question was whether the fast-food restaurant also exhibited any one of the five elements that were identified in the statute. Quoting from the July 21, 2009 letter, "as we have pointed out, it's absolutely clear that element three, which is potential litter problems and element five, potential outdoor gathering places will be present", Mr. Minnes stated that only one out of the five elements would be needed, and it indisputable that this would have two out of the five. He opined that common experience dictated that litter and outdoor gathering would occur at the proposed site, due to the availability of food and alcohol. Furthermore, he felt that the disposable supplies used for Mi Pueblo's to -go food would cause litter and by its own account, Mi Pueblo would create a very inviting atmosphere for all of this. They admitted that both litter and outdoor gathering would be a problem because they indicated that a full-time security and janitorial force would be necessary to address these problems. Mr. Minnes believed it was clear that a fast-food restaurant as defined in the zoning ordinance would exist at Mi Pueblo; it could not be dismissed as ancillary and therefore, ignored. Noting the restaurant was a high-volume food establishment, Mr. Minnes stated that under that definition it would require a conditional use permit. He explained that the Planning Department and Mi Pueblo made no effort to claim that the proposed site would not be a high-volume food establishment, which ignored the requirements of the zoning ordinance that applies to everyone else. Based on the faccts and zoning ordinance Mr. Minnes believed the City Council must find that a fast-food restaurant and high volume food service establishment existed and the code required a conditional use permit. Noting that the conditional use permit process would not be the end of it, he felt that would benefit the community and the City as a whole by considering all relevant factors and requirements of the zoning ordinance, and it would benefit by ensuring that appropriate mitigation measures were implemented, such as security and janitorial forces. Mr. Minnes stated that should the City Council find the fast-food restaurant and the high-volume food service establishment, then the Mi Pueblo project would be a better one as a result of the conditional use permit process. . Bruce Livinaston, Executive Director, Marin Institute, stated that they had been in operation in the Canal neighborhood for 21 years and that their mission was to deal with alcohol-related problems and to mitigate its harm. He reported that Marin Institute was not notified about the proposed site, as the notification only covered 300 feet away, although t one of the criteria was to look at public uses and compatible uses within 1,000 feet. Indicating that they supported the Mi Pueblo store , Mr. Livingston believed it incumbent upon them to discuss seriouslythe alcohol issues at the site. Noting seven criteria were set up for looking at matters of public convenience or necessity, he noted Mi Pueblo indicated they only had matters of public convenience. He inquired as to whether the criteria were mandatory guidelines or convenient guidelines that could be ignored. He stated that in the week prior, Quezada Market was denied an alcohol license for , criteria 1, 2 and 3, and felt the same criteria should be applied to Mi Pueblo, a much larger company. Mr. Livingston indicated the first criteria stated that this was an impacted area and an overly concentrated area in terms of alcohol licenses; therefore, it was one of the criteria the City Council should look at.. He added that there were plenty of places in the neighborhood to buy alcohol, both off -sale and on -sale. With regard to whether it was convenient to have alcohol sold at the store, Mr. Livingston believed it was; however, there were other places to purchase food and alcohol — there were 29 other locations in the vicinity in which one could buy alcohol. With regard to incompatible uses within 1,000 feet, Mr. Livingston stated there were at least six major uses which would be incompatible, including youth, young mothers and people in recovery. He questioned whether or not the criteria was important enough to the Council to deny the alcohol license at Mi Pueblo. He stated that the six incompatible uses at the Health & Wellness campus included the Support and Treatment After Release Program (STAR), the Community Mental Health Youth and Family Services, the Health and Human Services Health Clinics, CC 09-21-09 Social Services Children and Family Services Program, the Marin Community Clinics (MCC) and the WIC (Women, Infant & Children's) program, which offered nutritional services to women and children. With regard to whether this was a high crime area, Mr. Livingston believed it was a higher crime area than the rest of the City by 4% in terms of type -one crimes. He added that in the Marin Institute's appeal, they reported that a tremendous amount of calls that did not necessarily get written up as crimes. He displayed a typical photograph taken this morning of the back of the Marin Institute building. Believing Mi Pueblo would discuss training of staff members to not serve alcohol to minors, to be a good neighbor, to be family friendly, Mr. Livingston stated they supported this; however, believed they could do better. Having offered alternatives to Mi Pueblo, he stated that Marin Institute would support Mi Pueblo limiting the amount of alcohol sales on site without being denied their license. He noted a picture on display identified a Mi Pueblo location in Oakland in which brandy bottle was on display over the candy counter, near the check-out and this they would like to see avoided in the Canal. He suggested that alcohol display shelves should be in a remote aisle, not near the front of the store. Additionally, they would like to see no special displays of alcohol sales near the front of the store or check-out. Mr. Livingston stated they were also requesting Mi Pueblo to assist in rolling back the number of liquor licenses in the Canal area, possibly buying out some of the 29 other liquor licenses already there. They also requested no advertising of alcohol sales or availability in the store, no consumption of alcohol at the site, no alcohol sales before 10:00 AM or after 8:00 PM, strict security and no self -serve check-out of alcohol They would like to see Mi Pueblo be a leader in promising not to allow self -serve check out of alcohol. He believed these were reasonable ideas that Mi Pueblo could enact to become a real role model involving alcohol sales.. Councilmember Heller requested clarification on the issue of self -serve check-out of alcohol and added that she was not familiar with the concept. Mr. Livingston stated that the practice was becoming more common throughout California with retail chains and that there were many ways to cheat the system, i.e., by using a cell phone picture of a scanning code. He preferred the practice of using a checker to see if the shopper was inebriated or under age instead of looking through a camera or one-way mirror and suggested that Jorge Castillo, staff member from Marin Institute address the audience in Spanish. Translating, Jorge Castillo, Marin Institute staff member, requested that the community speak out on their concerns regarding alcohol sales in the Canal area. He stated that there was no other area in the community that has such a large concentration of alcohol within a residential area and pointed out that having spoken with community members, no one wanted alcohol to be sold, although they were in support of having Mi Pueblo come to the area. Neil Sorensen, Attorney for Simeon Properties, recognized several audience members who were with the applicant, Mi Pueblo: Juvenal Chavez, Owner & CEO, Jeff Aldaz, Chief Operating Officer, Perla Rodriguez, Vice -President, Public Affairs, Hector Chavez,Vice-President, Human Resources, together with David Mena, Architect and Russ Pitto, Simeon Properties. Mr. Sorensen stated that City staff had done an excellent job analyzing all the issues both before the Planning Commission, in a very well-written staff report and an excellent oral presentation this evening. From the presentation, he believed it was clear that Mi Pueblo would be a full-service grocery store use with various ancillary uses. Despite the lack of definition for "ancillary use" in the zoning ordinance, Mr. Sorensen stated that would not mean it could not be used as criteria in ruling out applications. He added that it was very common for zoning ordinances not to have every term defined, and felt it common for a practice or use to develop over the years where definitions were given certain meanings. He believed that over the years, staff had used these definitions of primary and ancillary uses. He emphasized that Mi Pueblo was not a fast-food restaurant, but a full-service grocery store; it was not a mixed use, but one business with different ancillary uses that made up the primary use. He also believed there was sufficient parking for this use. With respect to the appeal raised by The Marin Institute, Mr. Sorensen believed staf had done an excellent job of laying out the issues and concluding that the City Council did not have to make every one of the findings in in the resolution for public convenience or necessity. These were just criteria to be considered and to consider many other items, including the evidence the applicant brought forward. He believed the applicant would demonstrate that Mi Pueblo was a very community -oriented business which would benefit the Canal neighborhood and the City. Regarding the question of whether the use met the criteia of the General Plan, Mr. Sorensen noted that as indicated by staff, it t had been a long-standing goal in the General Plan to have a full-service grocery store in the Canal neighborhood, which this use would satisfy. He reported that evidence from the Police Department indicated that this was not a high crime area in the crimes that count for this type of analysis and that their experience with CC 09-21-09 full-service grocery stores led him to believe they did not have problems with alcohol sales Mr. Sorensen requested that the Council uphold the decision of the Planning Commission and the Zoning Administrator and deny both of the appeals. Perla Rodriauez, Vice President of Public Affairs for Mi Pueblo Foods, stated that the project had complied with all City requirements and had received approvals throughout each step of the process. Through the course of the project, Mi Pueblo had done a fair amount of outreach into the community, to local residents, community leaders and had been very fortunate to receive a lot of support from them. She presented over 1,020 letters submitted by residents of the Canal neighborhood to the Council who were very much in support of the project and who would like the issue to be resolved quickly, in order to apply for employment opportunities as well as being able to reap the benefits of Mi Pueblo Food Center, which she wished to present.. Ms. Rodriguez stated that many of the letters of support were collected by audience members, parents from Bahia Vista School and residents of the Canal neighborhood. Supporters in attendance tonight included parents from Bahia Vista School, representatives from the Canal Alliance, the Canal Welcome Center, the Hispanic Chamber of Commerce, the San Rafael Chamber of Commerce, Arbol, Encuentro Latino and many other organizations. During the course of the project, Ms. Rodriguez stated that they had done a fair amount of good faith outreach to the appellants,conducting meetings with each of the appellants to understand and address their concerns, although they wished to follow through with their appeals. Responding to Ruth Donohugh, Ms. Rodriguez stated that Mi Pueblo would be a full-service grocery store with over 17,000 grocery items, over 100 types of meat, a wide array of seafood, poultry, over 400 produce items including fresh fruits and vegetables, spices, flours, pre-cut items, all the typical offerings of a typical grocery store. In addition, she stated that Mi Pueblo stores also included bakeries, tortillerias, delis that make fresh goods from scratch, as well as providing check cashing and utility payment services. The deli department, which she stated was the biggest concern of the appellant, represented approximately 3% of the store's square footage, about 8% of total store sales. She indicated that the deli was planned to be 1,040 square feet, and approximately 70% of the products would be consumed off-site. Noting the appellant argued that Mi Pueblo food centers were fast-food restaurants, Ms. Rodriguez indicated that in looking at the definition of a fast-food restaurant, they did not offer drive-through or drive -up services, they did not take orders via outside intercoms, they were not a high-volume fast- food establishment and neither noise nor litter had been problems at any of their locations. Regarding the round- the-clock janitorial and security services at Mi Pueblo, Ms. Rodriguez stated that it was a signature trait of the business to create a positive, warm, safe environment for families and that they were committed to ensure that families would not be affected by litter or safety concerns. Ms. Rodriguez stated that the thirteen Mi Pueblo locations coexist with other taquerias and restaurants and made up a larger retail community, generally speaking and attracted customers to all the nearby businesses; therefore, she assumed it would do the same for Picante restaurant. Regarding the photographs presented earlier, she clarified that the photos were from a 50,000 square foot location of Mi Pueblo and this was a much smaller location. In response to The Marin Institute's appeal, Mr. Rodriguez stated that Mi Pueblo was founded on the belief that Latinos were hard-working, responsible people, many of whom immigrated to the United States in search of a better life and opportunities for their families. She believed that it was every person's right to make their own decisions, regardless of their background, income or where they live and also felt that Canal residents or people of color deserve nothing less and nothing different than customers of Whole Foods, Trader Joe's or Safeway: a one- stop, convenient shopping experience. Canal residents should have access to the same choices and the same freedoms that any other City resident had; therefore, she believed that a Canal resident who was over 21 -years -old with adequate identification should be able to purchase a bottle of wine to enjoy with dinner from a clean, safe, reputable grocery store instead of the corner liquor store. She stated that Mi Pueblo provides 250,000 customers with a safe, clean, warm, family -friendly environment across all of their thirteen stores throughout Northern California, and noted that they deliberately did not sell tobacco products, malt liquor or alcohol in single serving containers. Posing some questions that remained unanswered, Ms. Rodriguez inquired as to why Mi Pueblo was the first PCN the Marin Institute had chosen to appeal in the City in their 21 -year history and why the appellant had never contested another liquor license, despite the fact that licenses for restaurants and other establishments had been approved. She also inquired if there may be more effective ways to use their resources and to get to the root of the problem rather than targeting Mi Pueblo, which she felt was easier and would generate a lot more attention for the appellants, but it would do nothing to address the problems they wished to solve. She felt strongly that denying the use permit would not be the answer to the issues they had raised and that grocery stores were not the root of the problem, as stated by Police Captain, Jeff Franzini in a letter dated September 2, 2009. Furthermore, she believed 10 CC 09-21-09 that by denying Mi Pueblo the use permit, the City would be creating a different standard or a different set of freedoms and choices for Canal residents. Believing that Mi Pueblo would be a good neighbor to Canal residents and would set a precedent for businesses there, she commented that they would be committed to collaborating with community organizations and supporting health education, the Marin Wellness Campus. She indicated that they had done this for many years and planed to continue, should they be granted the opportunity to reside in San Rafael. She assured the Council that Mi Pueblo would continue to do their part to promote healthy lifestyles. Listing the benefits of the Mi Pueblo Food Center coming to the community, Ms. Rodriguez noted that over 175 new jobs would be created, health benefits, as well as career and growth opportunities, high-quality foods for healthy meals at better value and an estimated sales tax revenue which she stated would be between $300,000 or higher. Also benefitting shoppers at Mi Pueblo would be a free shuttle service for customers who would walk to the store and would use it to take their groceries home. With regard to community activities in which Mi Pueblo was involved, she noted that they supported scholarships, food drives and local health fairs. Ms. Rodreguez submitted additional letters of support to the Council for review - from Steve Kinsey, Supervisor for the Fourth District County of Marin, the Bahia Vista School's P.T.A., Encuentro Latino and the Univision Scholarship Program, which she stated Mi Pueblo sponsored each year, and others. She stated that the Mi Pueblo team was eager to be part of the Canal community. They were committed to doing their best to serve the residents with their products and services and their involvement in the community, and she requested that the project not be further delayed, so that the Canal residents could begin to reap the rewards of Mi Pueblo. Emphasizing the community's overwhelming support for the store, she noted that the Mi Pueblo offices received many phone calls regarding employment and inquiries as to when the store would open. Jeff Aldaz, Chief Operating Officer for Mi Pueblo Foods, wished to clarify technical issues that had arisen in relation to the two appeals. Regarding the deli area, Mr. Aldaz commented that Mi Pueblo heavily evaluated the criteria and the laws that they would be required to operate under. They had an internal building, real estate and construction department that spends countless hours evaluating the laws to ensure compliance with those rules. They had retained a third party architect, David Mena, and outside counsel, to ensure a thorough evaluation of the rules was carried out in this case, just as they had done in their thirteen other locations. Regarding alcohol, Mr. Aldaz clarified that Mi Pueblo did not allow any on-site alcohol consumption in their stores, nor did they sell any beer with over 7% alcohol content,. They did not sll any single servings under 24 ounces nor airport -sized bottles of alcohol. He added that alcohol would only represent 80 basis points (8/10 of 1 %) of the total store sales, of which 50% of their alcohol sales were sold in gift packs around the holiday season. They did not sell any malt liquor and with 3% in total beer sales, 75% of those sales were 12 -packs or greater. He commented that their number one and number two moving units were 18 -pack and 30 -pack, respectively. In regards to following the rules, he stated that Mi Pueblo spends a great deal of time training their employees. He noted they only had two ABC infractions in their thirteen stores over a period of 36 months, and claiming that Mi Pueblo averaged between 200,000 to 250,000 transactions per week, in a total of 25 million transactions there were just two infractions. Mr. Aldaz emphasized that Mi Pueblo took the rules of the ABC and other governing bodies very seriously. With regard to remarks concerning the store's janitorial and security services, he noted that this was necessary for a store of that size with 175 employees doing approximately $300,000 - $400,000 in weekly revenue There would be a janitorial staff of 3-5 internal employees, as well as an external janitorial service that would sweep the parking lot nightly. Regarding security, Mr. Aldaz stated that Mi Pueblo would have on -staff, on-site security that specializes in grocery security, consisting of 1-3 security guards at all times during operations. Russ Pitto, Property Owner, Simeon Commercial Properties, explained that Simeon had been in business for the last 25 years in San Francisco and Marin and had developed and owned well over 600,000 square feet of real estate in Marin County, primarily office and retail space. When they bought the space for Circuit City, he stated that they had seen the possibility that Circuit City could go out of business. They spent time doing their due diligence on zoning, ordinances and uses, and being so close to the Canal area, the one use which they thought would be excellent would be an Hispanic market. Having met with the CEO for Mi Pueblo, Mr. Pitto took a tour of their properties,he had been to many of their stores, and believed that they would be a real benefit to any community, let alone a Hispanic community in the Canal neighborhood. He added that it would be an incredible opportunity for the City and clarified that he had been in contact with the appellants and had tried to work things out, albeit unsuccessfully. Responding to Mr. Minnes' comments that the appeal was not about competition, but rather about zoning and fast food, Mr. Pitto clarified that Mi Pueblo was not a fast food restaurant and as real estate developers, had taken a careful look at the square footage of the indoor area. He wished to clarify that it was not 5,000 square feet, -- the breakdown was 1,040 feet of deli and kitchen area, with 760 feet of indoor seating, 190 feet of outdoor seating and 435 square feet of outside food preparation area, for a total square -footage of 2,425 for all food service and preparation. 11 CC 09-21-09 Commenting that "retail begets retail," Mr. Pitto believed that the presence of Mi Pueblo would be beneficial to the other businesses' sales in the area. He also mentioned that he had been introduced to a new social movement called "food justice" which in the non-profit world was described as "helping justice food policy to collect names to make fresh and healthy food available to everyone. Many of these food justice organizations operate in what are known as food deserts, where because of retail consolidation of supermarkets and redlining issues, residents of many inner cities and relatively poor neighborhoods have only very limited access to supermarkets stocking fresh, healthy and ethnically acceptable food at affordable prices." He noted that the perfect location for providing food to those deprived of good healthy food was happening next to a health center. Tom Wilson, Executive Director of Canal Alliance, felt that Mi Pueblo would be good for the Canal neighborhood. As a full-service grocery store, he believed it would fill a long-awaited need of the community and noted he would not be in favor had it not been carefully looked at.. A family type man, Mr. Wilson believed that Mr. Chavez was not the type of man who would sell cheap alcohol, promote alcohol or one to make profits at the expense of the community. He stated that he had questioned Mr. Chavez regarding how they would treat their, i.e., how they were paid and treated, whether they would be trained and given paid time off, sick and vacation leave, etc. From what he ascertained from Mr. Chavez' answers, he believed that Mi Pueblo treated their employees very well and added that 175 much-needed jobs would be created for the Canal residents. Regarding crime in the Canal neighborhood, Mr. Wilson stated that since 25% of the City's population resided in the Canal, yet the crime statistics were only 4% more than the rest of City; therefore he felt that the community should be applauded for the low -crime rates in relation to the higher population. He believed that the Canal community had enough good sense to be able to make responsible decisions about what and where they purchase. Having read the staff report, he had tremendous respect for the staff because of how complex the document was and he urged the Council to deny the appeal in order to let Mi Pueblo serve the community. Dario D'Arrigo, founder of Spanish-language television show, "Encuentro Latino" which began 4 years ago, gave his support to Mi Pueblo and distributed information to the City Council. He stated that he had received many telephone calls which supported the Mi Pueblo project in the Canal. He quoted a Central -American writer, "Language is the blood of the soul" ("EI idioma es la sangre del alma"). He noted the Planning Commission approved of Mi Pueblo Food Center and felt that the Latino community in San Rafael, Novato and all of Marin County, was very much in support of the project. Judv Mavne, Canal business owner, stated that she has owned an auto repair shop for the last 4 years on the corner of Alto and Larkspur Streets. Over the years, she stated she had witnessed the effects of the alcohol- related "crimes that don't count", such as drunk driving, pedestrians drunk in public, urinating in public (which happened in front of her business, witnessed by a woman and her 8 -year-old daughter). Despite Mi Pueblo's statement that they would not be selling single servings of alcohol, she felt that the bigger problem lay with the large quantities of alcohol, which she suspected would be purchased at Mi Pueblo and then consumed in public, near residences and businesses within walking distance. Regarding the four full-service liquor licenses which Raffi Boloyan had alluded to earlier, Ms. Mayne clarified that there were six off -sale licenses for beer and wine only, for a total of 10 places, which she felt was a large concentration for that area. She voiced her concern over the litter, vomit, urination and defecation near her business. She also stated that when walking her dogs near Picante restaurant, the same situation applied. Referencing Mi Tierra, a full-service grocery store in the same neighborhood, Ms. Mayne felt that location already had a problem with litter, as well as other debris on the pavement outside the store. She added that she supported the appeal of the liquor license. Dwiqht Steves, resident of the Canal neighborhood, felt that Mi Tierra and Smart & Final were options for shoppers in the area and in fact, felt that Mi Tierra would be closer in proximity to many Canal residents than the proposed Mi Pueblo site. Referencing Mr. Aldaz, Finance Officer for Mi Pueblo, Mr. Steves noted that if the store was to bring in $400,000 per week, which he calculated as $20 million per year, there would be issues with parking and traffic in the area. He stated that the Target traffic study had already shown that traffic at Bellam Boulevard and Kerner Avenue was over capacity, which was exacerbated by the Marin Wellness Center and would continue to worsen with the Mi Pueblo Food Center together the restaurant inside the proposed Mi Pueblo site. Mr. Steves believed that, contrary to the study, people would go to Mi Pueblo solely for the purpose of eating at the deli without grocery shopping. Regarding Mi Pueblo's proposed hours of 7:00 AM — 10:00 PM, he expressed concern about the noise level that delivery trucks would bring to the neighborhood, as early as 5:00 AM. Noting no parking on Bellam Boulevard or on the side streets, since they were considered private roads, parking would be shared with the Wellness Center, he believed that the employees would take up 50 or more parking spaces, as well as those driving to Mi Pueblo solely for their restaurant. Mr. Steves noted that the restaurant was larger and would have more seating than any of the five restaurants in 12 CC 09-21-09 the area: Picante, Playa Azul Marisco, Yu Shang, Le Croissant and Foodles. Regarding litter, Mr. Steves believed that there would certainly be a litter problem. Mr. Steves compared the street paving on Bellam Boulevard between Kerner and Playa Del Rey & Windward Way to varicose veins and needed to be repaired, noting they would be happy to get a median such as that on Andersen Drive. With the proposed new business and shopping in the area, he felt that the street lighting which was built in 1973 would be inadequate, given the rise in neighborhood traffic. Additionally, he voiced concern over the lack of pedestrian crosswalks in the area and hoped that the Council would allow for only half the size of the proposed store, in order to reduce traffic and parking issues. Flor Campos-Emert, founder of Arbol, stated that she was originally from Mexico and, although she didn't live in the Canal neighborhood, she believed that residents of the area needed the potential jobs that Mi Pueblo would offer, in order to make better lives for themselves. As far as the alcohol license was concerned, she stated that having been the victim of a drunk driver while pregnant, she believed that the location for the sale of liquor would not matter for someone determined to find it.. She added that the issue was not about the Canal neighborhood "drowning in alcohol", rather she felt that the addition of Mi Pueblo to the neighborhood would be giving the residents of the Canal an opportunity to improve their lives. Regarding traffic, she believed that there were plenty of parking spaces in the former Circuit City lot and, having been there many times even when it was crowded, she could still find a parking space. As the founder of Arbol, an organic gardening group that promoted organic gardening for healthy living, she believed that everyone deserved the opportunity to reach the American dream and she supported Mi Pueblo coming to the Canal. Jav Zlotnick, Interim CEO and President of the San Rafael Chamber of Commerce, spoke on behalf of the Chamber of Commerce in support of Mi Pueblo's proposal to operate at 330 Bellam Boulevard. Being an organization of businesses from the San Rafael, Marin and greater Bay Area, with 600-700 members made up of small businesses, merchants, professionals, large businesses, community-based organizations, educational and health institutions, Mr. Zlotnick stated that one of the Chamber of Commerce's primary roles was to act as a business advocate and to communicate with government officials concerning issues that would be critical to the local business climate. He explained that when the Chamber of Commerce first learned about Mi Pueblo's proposal to operate in the Canal neighborhood, they had inquired about similar stores in the Bay Area. Mr. Zlotnick added that the Chairman of the Board of Directors had spoken about a store he had visited in Contra Costa and how impressed he was with his experience there and commented on how well the store was maintained, the friendly atmosphere and the nostalgic quality of the store. Having reviewed the comments submitted to the Council by Mi Pueblo dated September 15, 2009, he stated that it was the Chamber of Commerce's belief that Mi Pueblo had made a good -faith effort to respond to the issues that were addressed in the appeals. In summary, he believed that Mi Pueblo would be a positive influence on the community, such as offering attractive products and services, employment, tax revenue, collaboration of community-based organizations and an added sense of community. For these reasons, Mr. Zlotnick, speaking for the Chamber of Commerce, urged the Council to support the Planning Commission's decision regarding Mi Pueblo and to deny the appeal. Douqlas Mundo, Canal resident, stated that he was in attendance in support of Mi Pueblo and wanted to express his willingness to work with his colleagues in the community in order to educate residents about the consequences of alcohol. He believed it was an opportunity to begin doing something to transform that situation in the Canal and welcomed Mi Pueblo on behalf of his community. Roberto Hernandez, President of the Bahia Vista P.T.A., brought letters of support for Mi Pueblo to give to the Council, as well as a letter from the Bahia Vista P.T.A. He believed that the addition of Mi Pueblo to the Canal neighborhood would bring a safe environment and much-needed new jobs to the community. Regarding parking, he felt there was more than adequate space, having been to the site many times. On the issue of litter and cleanliness, he believed that Mi Pueblo would do as they promised and have staff keep the area clean. Fernando Quezada, of Quezada's Market which opened in the Canal in 1996, stated that he employed 36 employees, who were all very civic -minded. His store being one-tenth the size of the Mi Pueblo store, Mr. Quezada raised the issue of inequity when it came to the denial of his liquor license by a City official based on the grounds that the official feared Quezada's Market would turn into a liquor store, which was not the case. He added that he had applied for the liquor license to be on the same playing field with other businesses in the area and to not lose his customers. Having been in business 13 years, Mr. Quezada stated that his market had done well without the liquor license, but felt that Mi Pueblo's liquor license would harm his business. He requested that the Council request the City officials to overturn the decision on his denial for a liquor license. Having applied the same as Mi Pueblo and having been awarded a permit through ABC, he did not see why his business was denied when Mi 13 CC 09-21-09 Pueblo was approved. He added that both his market and Mi Pueblo were within 1,000 feet from a church and could not see any reason for the discrepancy. He stated that he was not afraid of free enterprise, as the United States of America was built on it, but that he considered it an issue of fairness. Since the issue could not be discussed tonight, Mayor Boro assured Mr. Quezada that the staff would pursue it and report back to the Council. Anan Patterson, Board President of Marin Institute, believed that it was a very unique opportunity for the Council to have as policy makers to take health and the appeal to create something positive for the Canal neighborhood. She added that she became involved with Marin Institute because she is the mother of a 24 -year-old. She works at a high school in Novato and had seen how alcohol and alcohol sales in Novato and other areas had impacted the community's youth. She and Bruce Livingston had been advocates for 21 years and had worked closely with several communities nationwide and believed the two most important issues for the Council to take into account were: 1) local control; and 2) the overconcentration of alcohol outlets. Referring to Mr. Livingston's suggestions for parameters for Mi Pueblo to sell alcohol in a responsible manner, Ms. Patterson agreed that it was an incredible opportunity for Canal residents and for Marin Institute to work together on alcohol issues, similar to their collaborations in San Francisco and Novato. She urged the Council to consider support of the appeal and the practices which Mr. Livingston outlined in terms of alcohol sales. Reiterating that she does support Mi Pueblo, Ms. Patterson stated that she appreciates all that the Canal neighborhood has to offer the Marin Institute. "Alva" believed that the Canal residents needed a larger store with more variety of Latino -specific items that could not be found in other stores. She supported Mi Pueblo also because of the possibility of new employment opportunities, which would help the community economically. She thanked the Council for understanding the issue, for doing their best to help the Canal neighborhood and provided the Council with more letters of support for Mi Pueblo. Mary Ellen Valderrama, kindergarten teacher at Bahia Vista school, looked forward to the opening of Mi Pueblo. Referencing the Mi Pueblo near her mother's house, she noted that it was clean, had a security guard and was nothing less than when she shopped in Terra Linda or Bon Air or Whole Foods. She stated she would love to have a store like Mi Pueblo in her neighborhood within walking distance so that her neighbors without cars would not have to take a van or drive to other stores further away such as Whole Foods. She added that some neighbors relied on a van to come to their homes selling food door-to-door. Noting the freshness and abundance of different products Mi Pueblo would offer, she supported the store opening in the Canal. Jim Garritv, Canal resident, believed that Mi Pueblo would be great for the community, but inquired as to the Council's position on alcohol. He stated that about a year ago, the Council approved $750,000 for checkpoints and saturation patrols for alcohol problems on the City's roads. He recalled that the City Council was invited to visit the Marin Institute to evaluate how they could work together as a community to deal with the problems; however, to his knowledge this had not yet happened. He expressed the hope that the City Council would work with the community on issues such as checkpoints, impounding cars and alcohol problems in the City. He felt that both Mi Pueblo and the Marin Institute were great assets to the City and believed that they should come together to solve problems collectively with the Council. Brooke Hamlin, resident of the Canal, stated that she had lived in the area for 12 years and had volunteered with the Canal Ministry for 7-8 years as an ESL teacher. In her years teaching English to residents of the Canal, she noted that her students lost interest in learning the language when they heard about the lack of decent -paying jobs available. Having believed at first that it would be ridiculous to add another market to the neighborhood, especially with More For Less in the vicinity, which she stated was a full-service Hispanic grocery store with fresh fruits and vegetables. As a More For Less customer herself, Ms. Hamlin noted that many times there were police cars outside the market; they often had loitering problems and believed that Mi Pueblo would have the same issues. After reading more about the Mi Pueblo project and the check -cashing service inside the proposed center, Ms. Hamlin was concerned about the amount of pedestrian traffic and litter that the store would bring to her neighborhood. Besides the traffic congestion and alcohol, she also expressed concern with spitting and felt the community should be educated on the amount of germs that the habit spread. She stated that she was completely opposed to the Mi Pueblo project and would much rather see the site used for something else, such as a Kaiser Permanente clinic, and felt that the neighborhood did not need another Hispanic grocery store. Referencing Mr. Quezada's comments, she added that she felt it unfair that Mi Pueblo received a liquor license when Quezada Market's permit was denied. 14 CC 09-21-09 Francisco Diaz reiterated that the Canal neighborhood had a problem with alcohol-related issues and felt it necessary to create dialogue surrounding the issue, especially between Marin Institute and Mi Pueblo. Mr. Diaz believed that Mi Pueblo would be a great asset to the community and supported it moving to the Canal neighborhood. He encouraged those who had spoken at the meeting regarding overconsumption of alcohol, spitting, and other problems to work with the residents and community organizations to try to find solutions because families of the Canal neighborhood would also like to see these issues resolved. David Maver stated that the Canal neighborhood represented a unique challenge for the community and expressed support for the Mi Pueblo project because he believed it would be a good opportunity to start redevelopment in the Canal area and to serve the Hispanic community there. He did, however, oppose another outlet selling alcohol, due to the overconcentration in the neighborhood, and agreed with the Marin Institute that there should not be more alcohol served. Regarding traffic, he felt that having a store atthis location and reusing that property was an opportunity to shop locally without having to travel out for the specialty items they needed. Understanding the Chamber of Commerce supported the Mi Pueblo project, he reported having spoken with Cecelia Zamora of the Hispanic Chamber of Commerce, Mr. Mayer stated that they also supported the project. There being no further comment from the audience, Mayor Boro closed the appeal hearing. Addressing certain items which were raised during the public testimony, Raffi Boloyan clarified that the term "ancillary use" was a term used throughout the Zoning Ordinance and was listed in every land use table for allowable zoning districts and states that "accessory structures and uses customarily incidental to the main use are permitted in all zoning districts." Not being defined in the Zoning Ordinance definition section, Mr. Boloyan noted that not ever word contained in the Zoning Ordinance was. Regarding the Quezada Market application, Mr. Boloyan stated that the Planning Department had received an application for a PCN at that market, which was denied last Thursday. The same review criteria were used and the City considered these He indicated that a primary reason was that it was the applicant's responsibility to demonstrate to the City through evidence that some type of public convenience or necessity would be served and in that case, this was not demonstrated satisfactorily; therefore, the application was denied. He noted there was an appeal period in which the applicant had the right to appeal. This period would end nextt Thursday afternoon and the appeal would go to the Planning Commission, should they so chose. Addressing the difference between off -sale and on -sale alcohol licenses, Mr. Boloyan stated that Mi Pueblo's liquor license application to ABC is a Type 21, which is off -sale only. They are not allowed on -sale consumption on the premises. In response to the appellants' question of conditioning or having requirements of certain measures placed upon the ABC license that they proposed, Mr. Boloyan clarified that the Planning Department had discussed the issue with ABC. He explained that in the past the City's issuance of a PCN could be conditioned, as are other City entitlements, such as use permits and design review permits. However, ABC had indicated over the past couple of years that the rules had changed and they do not allow conditions to PCNs; the PCN must either be granted or not denied. In the event that there was a concession or agreement between the parties relating to alcohol, he stated that this was an issue that would have to be memorialized through a private agreement or a written statement, but it could not be conditioned. Mr. Nordhoff wished to address the fiscal impact that would come from the opening of Mi Pueblo. Referring to page 12 of the staff report, he stated that the store would not actually be producing $300,000 of local sales tax revenue to the City's budget; it will be producing that level of revenue based on the types of commodities in the store that were subject to sales tax. He clarified that the City would only receive 1 % out of the 9.5% tax rate, which he estimated would be more in the range of $30,000 - $40,000. Councilmember Connolly thanked Mr. Boloyan and staff for putting together a very thorough staff report. He also thanked the applicant and the appellants for their presentations. Noting the unusually large turn -out, he wished to thank the community for attending the Council meeting in such large numbers, and mentioned that it did make a difference in the Council's decision-making to have the public in attendance. Councilmember Connolly stated he was very excited about the project and felt that Mi Pueblo would be a very positive addition both to the Canal community in particular, but also to San Rafael in general. Based on what he had seen through the appellate and Planning processes, Councilmember Connolly indicated he was satisfied that the concerns raised in the appeal had been addressed and that the Mi Pueblo operations would be consistent with its purpose as a full-service market. In particular, he was satisfied that the dining aspect of Mi Puebl owas an ancillary use and therefore, allowable under the rules. With respect to the liquor license, 15 CC 09-21-09 Councilmember Connolly was struck by the fact that Mi Pueblo had stepped up to the plate and were incorporating a lot of the suggestions of The Marin Institute. It appeared they were also willing to work with the community in addressing responsible alcohol sales on the premises, in particular, eliminating sales to youth. He felt it significant that Mi Pueblo would be committed to employing local people and creating jobs. Referring to a sign being held up by an attendee in the Council Chambers, he agreed with the written slogan "necesitamos los trabajos" (we need jobs). He believed that Mi Pueblo had a good track record of doing this with the communities it served and also being a responsible neighbor and community member. Indicating he was very satisfied with what he had heard this evening, he would vote against the appeal and in favor of Mi Pueblo.. Agreeing with the findings of the Zoning Administrator and the Planning Commission, Councilmember Miller stated that the basic finding in the first appeal was that Mi Pueblo would be a great food center with a number of ancillary uses. He felt that in its totality, Mi Pueblo fits well and that the other issues, such as parking, would fall in line as discussed by the Planning Commission, the Zoning Administrator and the staff report. As for the liquor license, Councilmember Miller believed that in this situation, it would not add to the overflow of alcohol and that it was a convenience within the store for shoppers, which paralleled the Police Department's report. Furthermore, he added that there was not a direct result of higher crime from stores and off -sales. Having visited a Mi Pueblo store in San Jose, the original location, Councilmember Miller stated that it was everything that was advertised, a "celebration of the people." He expected and hoped that the San Rafael location would be an example of what he had witnessed at the San Jose location: a celebration of people shopping together, socializing with each other and finding healthy ways in which they could live together. He added that he was particularly moved by the fact that Mi Pueblo was specifically spoken for, asked for and wanted by the community, especially from Bahia Vista school, which he believed to be a great school. He stated that "when you hear the voice of the people coming from the voice of the children, you know you have a powerful advocate." Councilmember Heller inquired as to what Mi Pueblo planned to do regarding the types of paperware, Styrofoam, etc. and hoped that the company would be using biodegradable products. She requested that Mi Pueblo move toward using environmentally -friendly products, as Marin County was moving towards zero waste.. Regarding Marin Institute's request of Mi Pueblo having no self -checkout of alcohol, Councilmember Heller felt that request made sense. Responding to Councilmember Heller's concerns, Mr. Aldaz confirmed that none of Mi Pueblo stores offered self - checkouts and stated that where required, stores did comply with the rules regarding recycled products. He noted that he and Mr. Chavez were in Asia the week prior looking at new vendors who could provide "greener" products in their deli department and they expected to adopt the new program in the next 6 to 12 months. Mr. Aldaz added that Mi Pueblo also had a full-service compost program, rather than allowing the fruit to end up in landfills. Councilmember Heller stated she agreed with staff's recommendation and would vote to deny the appeals. Councilmember Brockbank thanked the staff, applicant, appellants and the audience for their attendance. Noting that any new project, especially larger ones, could be scary, potentially bringing problems such as traffic, parking, noise, litter, alcohol abuse, he believed however, that the Council needed to trust the City's staff and weigh the possible benefits against the possible harms. In this case, he believed the benefits were clear and likely and the harms were speculative and far outweighed by the good. Having read Ms. Donohugh's letters, he inquired as to the food uses of the store and noted that Mi Pueblo would have significantly more seating than other supermarkets. Despite this, he trusted Mr. Boloyan's statement this did not mean it was not an ancillary use. Mr. Boloyan indicated that to make it something other than an ancillary use it had to be more than 10% or 20%. Mr. Boloyan explained that the general threshold used by past practice and policy was the 25% rule in terms of volume of sales, area of intensity and hours of operation. These were the perameters used to distinguish between ancillary and non -ancillary. Agreeing that the percentage was well below the parameters outlined by Mr. Boloyan, Councilmember Brockbank believed that it would be considered an ancillary use. Expressing concern with regard to alcohol abuse, Councilmember Brockbank believed the City needed to be careful not to start changing alcohol policy with one applicant as if the policy were to be changed, it should to be changed wh everyone. Indicating that it would be unfair to treat Mi Pueblo differently from any other market, he noted that since other supermarkets were entitled to sell alcohol, Mi Pueblo should also. He added that it was the responsibility of the ABC to grant alcohol permits, not the City's. Councilmember Brockbank stated he was impressed with some of the statistics in the letter from Health and 16 CC 09-21-09 Human Services which indicated that 30% of the alcohol outlets in Marin County were in San Rafael, which was to be expected given the fact that San Rafael had a much larger downtown and a lot more restaurants; therefore, this did not appear unusual. Noting the statistic that 20% of DUI arrests were for San Rafael residents, Councilmember Brockbank commented that San Rafael was 20% of Marin County; therefore, this indicated to him that San Rafael did not have excessive alcohol abuse problems compared to the rest of the County. Noting the letter provided a lot of good suggestions for good training for the counter workers, he inquired whether this was the type of training that would be given and hoped that all outlets selling alcohol would have the type of training recommended by the Marin Institute and Health & Human Services Director, Larry Meredith. For these reasons, Councilmember Brockbank believed they should be treated the same. They would be terrific asset and a huge boost to the Canal, specifically and the City of San Rafael, generally. He hoped this would be a rising tide and all boats would be lifted. He reiterated that it would be very good and he would vote to deny the appeals. Mayor Boro inquired as to the hours of operation and the requirements regarding loading and unloading with respect to hours and location in relation to the residential community. Mr. Boloyan reported that the daily hours of operation would be 7:00 AM to 10:00 PM and in terms of loading and unloading, he stated that a loading facility existed along the rear access of the building, which also served as an easement for the County clinic. The grocery store being a permitted use in the zone, the City would not have the ability to review, condition or require certain or special conditions of approval on loading hours; therefore, they would be subject to the standard noise ordinance requirements for loading, as contained in the Municipal Code. Mayor Boro commented that for years discussion had taken place retarding the need for a full-service grocery store in the Canal and believed this was a real opportunity to have one. He supported the application and upholding the decision of the Planning Commission. With respect to alcohol, Mayor Boro indicated he was very impressed with the outreach that Mi Pueblo demonstrated with respect to the community. He believed it would be beneficial for the community and would do a lot for the company if Mi Pueblo could work with the Marin Institute on alcohol-related issues. Noting that there was an alcohol problem across Marin County, not just in the Canal neighborhood, Mayor Boro believed Mi Pueblo had the ability to communicate well with customers and it would help the community for Mi Pueblo and the Marin Institute came together to address some of the long-term problems and he would be willing to work on this issue also. Mayor Boro stated he was impressed with the security Mi Pueblo employed and felt it was a positive aspect of the store, and having driven past one of their locations, he was impressed at out how clean the store was, how well the foods were displayed and he believed that they would be a tremendous aspect not only to hose in the Canal but also to the residents of San Rafael and Marin County. He believed a good place earned a reputation and people would visit. Thanking the audience for attending, Mayor Boro especially thanked Raffi Boloyan for his report and stated how well-written it was. Councilmember Miller moved and Councilmember Connolly seconded, to adopt the Resolution. ADOPTED RESOLUTION NO. 12840 — RESOLUTION DENYING TWO SEPARATE APPEALS (AP09-004) AND UPHOLDING THE PLANNING COMMISSION'S ACTION AFFIRMING THE ZONING ADMINISTRATOR'S CONDITIONAL APPROVAL OF AN ADMINISTRATIVE ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED09-014), ADMINISTRATIVE USE PERMIT (UP09-015), SIGN PERMIT (SR09-012) AND GRANT OF A PUBLIC CONVENIENCE OR NECESSITY (PCN09-001) TO ALLOW: A) EXTERIOR MODIFICATIONS TO THE EXISTING COMMERCIAL BUILDING, INCLUDING AN ALTERATION TO THE BUILDING ENTRY, NEW COLORS AND MATERIALS ON THE BUILDING AND NEW WOODEN TRELLISES AND COLUMNS ALONG FRONT OF BUILDING; B) OUTDOOR DINING AREA ON THE PRIVATE SIDEWALK AREA IN FRONT OF THE STRUCTURE; C) NEW BUILDING SIGNS; AND D) ALCOHOL SALES IN THE NEW GROCERY STORE AT 330 BELLAM BLVD (APN 009-280-06). 17 CC 09-21-09 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None CITY MANAGER'S REPORT: None. COUNCILMEMBER REPORTS: (including AB 1234 Reports on Meetings and Conferences Attended at City Expense) 10. None. ADJOURNMENT: There being no further business, Mayor Boro adjourned the City Council meeting at 10:32 PM ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 2009 MAYOR OF THE CITY OF SAN RAFAEL 18 CC 09-21-09