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HomeMy WebLinkAboutCC Resolution 12976 (Quezada Market Liquor License)RESOLUTION NO. 12976 A RESOLUTION OF THE CITY COUNCIL OF SAN RAFAEL DENYING THE APPEAL (AP10-001) AND UPHOLDING THE PLANNING COMMISSION'S ACTION GRANTING AN APPEAL AND OVERTURNING THE COMMUNITY DEVELOPMENT DIRECTOR'S DENIAL OF A DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY (PCN) WHICH IS REQUIRED FOR THE ISSUANCE OF ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE (TYPE 21 OFF -SALE, GENERAL) TO ALLOW ALCOHOL SALES AT AN EXISTING BUSINESS, QUEZADA MARKET AT 90 BELVEDERE ST (APN: 008-082-49). WITH THIS ACTION, THE PCN (PCN09-002) IS THEREBY GRANTED THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: WHEREAS, May 7, 2009 Art Rodriquez & Associates, on behalf of Quezada Market, submitted an application to the City of San Rafael Community Development Department requesting a Determination of Public Convenience or Necessity (PCN09-002) to allow the issuance of a Type 21 alcohol license (off -sale, beer, wine and liquor) for the existing market located at 90 Belvedere St; and WHEREAS, on June 5, 2009 the project was deemed incomplete for processing due to the need for additional information required. An incompleteness letter was sent to the applicant requesting the written submittal of information required by the City's Resolution for review of PCN applications; and WHEREAS on August 20, 2009, a second letter was sent to the applicant requesting the submittal of the incomplete information; and WHEREAS, on August 25, 2009, the applicant submitted additional information as requested in the incompleteness letter; and WHEREAS, on September 1, 2009, the application was deemed complete for processing and notice of a public hearing on the application was mailed to property owners, residents, businesses within 300 feet of the site and all interested parties; and. WHEREAS, on September 17, 2009, a designee of the City of San Rafael Community Development Director (CDD) held a duly -noticed public hearing on the application for Determination of Public Convenience or Necessity (PCN), accepting all oral and written public testimony. Two members of the public spoke during the public hearing and expressed concern with the overconcentration of liquor licenses in the area and the incompatibility of the liquor sales with the after school activities for 60 children that are conducted in the building; and WHEREAS, on September 17, 2009, the CDD rendered a decision, denying the determination of Public Convenience or Necessity. Notice of said decision, including transmittal of the meeting minutes and findings were provided to the applicant and their team; and WHEREAS, on September 24, 2009, Fernando Quezada, owner of Quezada Market filed an appeal (AP09-005) pursuant to the provisions of San Rafael Municipal Code Chapter 14.28, L �'), 1,11 b citing 4 points of appeal and requesting that the Planning Commission reverse the September 17, 2009 decision of the CDD; and WHEREAS, on November 6, 2009, the appellant submitted a letter requesting a continuance. Given that the request was submitted after the agenda had been noticed and posted, the Commission had to consider the request at the public hearing on November 10, 2009; and WHEREAS, on November 10, 2009, the Planning Commission held a duly noticed public hearing to consider the Appeal (AP09-005), accepted and considered all oral and written public testimony and the written report of the Planning Division. Even though the appellant requested a continuance, the Commission offered to accept public testimony from any members of the public who were present, but none spoke. The Commission granted the request and continued the matter to a date uncertain; and WHEREAS, on January 26, 2010, the Planning Commission held a duly noticed public hearing to consider the Appeal (AP09-005), accepted and considered all oral and written public testimony and the written report of the Planning Division; and WHEREAS, on January 26, 2010, the Planning Commission adopted Resolution No. 10 O1 by a vote of 4-3 (Commissioners Colin, Lang and Paul dissenting) granting the appeal (AP09- 005) and overturning the Community Development Director's September 17, 2009 denial of the Determination of Public Convenience or Necessity (PCN) to allow alcohol sales at the existing neighborhood market at 90 Belvedere St; and WHEREAS, on February 2, 2010, an appeal of the Planning Commission decision was filed pursuant to the provisions of San Rafael Municipal Code Chapter 14.28. The appeal (API0- 001)was jointly filed by Tom Wilson of Canal Community Alliance and Bruce Livingston of Marin Institute (collectively, "the Appeal"), citing three separate reasons for the appeal and requesting that the Council reverse the January 26, 2010 decision of the Planning Commission; and WHEREAS, on June 7, 2010, the City Council held a duly noticed public hearing to consider the Appeal (AP10-001), accepted and considered all oral and written public testimony and the written report of the Planning Division; and WHEREAS, upon review of the application, the City Council reaffirms that the project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15301 of California Environmental Quality Act (CEQA), which exempts reuse or additions to existing private structures from the requirements of CEQA, if the project is located in an area that is served by all available public utilities to allow for maximum development permissible under the General Plan and if the project is located in an area that is not environmentally sensitive. A separate CEQA finding has been made below; and WHEREAS, the custodian of documents which constitute the record of proceedings upon which this decision is based is the Community Development Department. NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby denies the Appeal (API 0-001) by Tom Wilson of Canal Community Alliance and Bruce Livingston of Marin Institute and upholds the Planning Commission's January 26, 2010 decision overturning the Community Development Director's denial of the Determination of Public Convenience or Necessity (PCN) to allow alcohol sales at the existing neighborhood market at 90 Belvedere St. The City Council finds that the points of the appeal (identified in bohUitalics) cannot be supported for the following reasons: Appeal Point #1- The Canal community already has 29 locations that sell alcohol which is al: overabundance of access to alcohol. Findings a) Based on a May 24, 2010 search of the ABC license database, there are actually currently 30 active on -sale and off -sale retail liquor licenses in the census tract in which this subject site is located. In analyzing the 30 existing licenses, 5 of the 30 licenses are for off -sale of beer, wine and hard alcohol (Type 21). With this proposed new license for Quezada Market, there would be a total of 6 Type 21 licenses. b) This census tract currently has an overconcentration of licenses based on ABC's criteria, which is the reason ABC requires the local agency to first grant a PCN before ABC will issue another license. c) In certain circumstances where there is an undue concentration of licenses, as is the case with this application, ABC will not issue a new off -sale license or certain on -sale licenses unless the local government body (city or county) first grants a finding of Public Convenience or Necessity (PCN). The PCN process is established to allow a local jurisdiction to consider additional licenses in areas of over -concentration and if they determine that the additional license would serve a public convenience or necessity, then a PCN can be granted. d) City Council Resolution No. 10299, adopted on August 17, 1998, governs the procedures for the City's review and criteria for determination of whether such license would provide a public convenience or necessity. There are seven criteria that are to be considered by the City as part of its determination whether the public convenience or necessity would be served by the issuance of an off -sale retail liquor license. The PCN Resolution prescribes that the City is to consider the seven criteria as part of their review, but does not mean that all seven criteria are mandatory. e) The intent of the review criteria is to consider the specific request for a PCN, determine whether there would be a public convenience or necessity served by the addition of that specific license in the area, and consider the request in light of the review criteria. f) The Planning Commission overturned staff's denial of the PCN, finding that the granting a license to this market would indeed serve public convenience. g) The Commission's finding was based primarily on the fact that this neighborhood market is closer in proximity to the population center than other stores and granting a PCN to this store would reduce the distance residents would have to travel to purchase groceries and alcohol if desired. In addition, the Commission found that the close proximity would promote walking or biking which would serve a public convenience. Appeal Point #2 - Canal Alliance operates a daily after school program ill the same building for sirty middle and high school students who are considerably at risk students. Finding a. Quezada Market is indeed located on the same property and within the same building in which the Canal Alliance operates an after-school program. In addition, the market is within 1,000 feet of three churches Iglesia Evangelica Betania at 124 Belvedere Street, Mission Evangelica Peniel at 125 Larkspur Street and Stinson Beach Community Presbyterian Church at 32 Belvedere Street. b. One of the seven PCN review criteria that the City is to consider for a PCN application is "whether a business will be located within 1, 000 feet of incompatible facilities, such as public or private schools, day care enters, churches, parking, homeless shelters and alcohol rehabilitation centers and facilities designed and operated to serve minors. " c. The fact that there is a potentially incompatible facility within 1,000 feet of a proposed alcohol license does not require that the PCN be denied. The City must use its independent judgment and consider the seven review criteria, including the specific criteria dealing with incompatible facilities, and make its determination of whether public convenience or necessity would be served by the additional license. d. The Commission considered this fact as part of their hearing and the majority of the Commission ultimately concluded that public convenience would be served by the additional license. Anneal Point #3 ® Appellant states that although they believe that the Quezada family would be a responsible server, their business may not survive. If that is the case, then all alcohol license would be in place for a successor who may not be as responsible. The granting of this license would mean that a new owner could come in and turn a friendly full-service market into a fill scale liquor store. Finding a. California Department of Alcohol and Beverage Control has indicated that if Quezada Market sells their market and the associated alcohol license to a new owner(s), then a new PCN would not be required by the new owner(s). b. This would be considered a person-to-person transfer in which nothing is changing except for the ownership and the new owner(s) could continue Type 21 alcohol sales (off sale) which could continue as a grocery store with ancillary sale of alcohol. c. Although the Type 21 ABC license would technically allow a new owner to operate a "full scale liquor store" with their Type 21 license, the City's Zoning Ordinance would not allow a liquor store since liquor stores are not a permitted use (nor a conditionally permitted use) in the Core Canal/Industrial (CCI/O) Zoning District in which this site is located. d. If the business is sold, but the alcohol license is not included in the transaction, then the new owner would need to obtain a Type 21 license from elsewhere. In that case, a new PCN would be required of the new owner unless it falls within the 90 -day rule. The 90 -day rule applies if the premises have been licensed and operated with the same type license within 90 days of the new application. BE IT FURTHER RESOLVED, that the time within which to seek judicial review of this decision is governed by Code of Civil Procedure section 1094.6. BE IT FURTHER RESOLVED that the City Council of the City of San Rafael upholds the Planning Commission action to grant the appeal and overturn the Community Development Director's denial of Determination of Public Convenience or Necessity (PCN09-002) and thereby grants the Determination of Public Convenience or Necessity (PCN09-002) based on the following findings: PUBLIC CONVENIENCE AND NECESSITY (PCN09-002) FINDINGS The City Council reaffirms the Planning Commission's findings related to the criteria identified in City Council Resolution No. 10299 required for the determination of whether Public Convenience or Necessity will be served by the issuance of an on -sale or off -sale license where a finding of undue concentration has been made by the State Department of Alcohol and Beverage Control. Criteria 1: Whether the issuance involves air existing business license which is being transferred to a new location, and which will not result in air increase in the total number of off -sale retail liquor licenses or on -sale retail licenses in the City or in the census tract in which the business would be located. Findin : The applicant has secured a liquor license from Ralph's grocery store in Marinwood. Therefore, it would add another Type 21 license to the Canal census tact (#1122). With this license, there would be a total of 6 Type 21 alcohol licenses in this census tract. Criteria 2: Whether the business, by reason of its location, character, manner or method of operation, merchandise, or potential clientele, will serve a segment of the City's business or residents trot presently being served. Findina: In this particular case, the addition of the liquor sales would be to an existing neighborhood market. Although there are other small (less than 10,000 sq ft in size) neighborhood/ specialty markets, as well as liquor stores, in the Canal area that sell alcohol for off-site consumption, the City finds that this location would be the closest facility to the residential areas. This proximity would also encourage pedestrian use and reduce the possibility of patrons driving to other locations. Therefore, the Council finds that it the addition of this license at this location would provide a public convenience. Criteria 3: Whether the business will be located within a 1,000 -foot radius of incompatible facilities, such as public and private schools, day care centers, churches, parks, homeless shelters, and alcoholic rehabilitation centers, and facilities designed and operated to serve minors. Finding: According to the applicant, Quezada Market at 90 Belvedere Street is located within 1,000 feet of three churches lglesia Evangelica Betania at 124 Belvedere Street, Mission Evangelica Peniel at 125 Larkspur Street and Stinson Beach Community Presbyterian Church at 32 Belvedere St. Additionally, the Canal Alliance operates an after-school program at 51 Larkspur Street, within 1,000 feet of the subject property. Criteria 4: Whether the location of the license will be in a crime data area covered by Police Department statistics, which has a twenty percent (20%) greater number of reported crimes that: the average it timber of "reported crimes"for all crime data areas in the City, over previous year. For this purpose, "reported crimes" means reported offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other misdemeanor orfelony crimes, except for traffic citations. Findinp-: The Police Department has analyzed Part 1 crime rates in the Canal against other parts of San Rafael and found that there are 41.2 Part 1 crimes per 1,000 residents in the Canal vs. 39.5 Part 1 crimes per 1,000 residents for the rest of the City of San Rafael. Therefore, the Canal area exceeds the remainder of the City by 4.3% and is well below the standard of 20% recommended for denial of an alcohol license. Based on the type of business, the surrounding uses, the Part 1 crime data and the non -Part 1 crime data pertaining to alcohol-related incidents, the Police Department recommended that the project would not have a negative impact on the area. Criteria 5: Whether the issciance of the license involves an existing business, which has been located at a site which has had three or more reported crimes defined in (4) above, within the previous one- year period Findiniz: According to Police Department, there were 27 calls for service to this address during the 2006 calendar year. The reason 2006 was used is that the business was closed in 2007 and partly in 2008 due to a fire. In 2006, 5 of the 27 calls for service were Part 1 crimes. The Police Department did not have any concern with the addition of an off -sale license at this location. Criteria 6: Whether the issuance of the license will promote the goals and policies of the City's adopted General Plan, any applicable specific plan, or any similar policies that have been formally adopted by the City Council. Finding: The neighborhood/specialty market, even with alcohol sales, would be consistent with the goals and policies of the General Plan. Criteria 7: Whether any other information supplied by the applicant, or other competent evidence shows that public convenience or necessity will be served by issuance of the license. Findine: During the initial review process and decision by the Community Development Department staff on the PCN, the applicant stated that public convenience would be served by offering the local residents a complete line of products that many major supermarkets do not carry (which includes alcoholic beverages) and that it would allow reasonable growth of an existing business. The points in the appeal further state that public convenience would be served by making it easier for their existing customers to buy alcohol along with the rest of their merchandise rather than going elsewhere. Through testimony at the hearing, the Commission also found that this market would be the closest market to the nearby residential areas and therefore would serve public convenience by allowing a market with alcohol sales within closer proximity to other markets in the area. As such, the market would allow nearby residents to walk to the location rather than potentially drive to markets that are further away. In addition, the Commission found that the addition of the liquor license for this use would allow the small business to grow and remain as an important use in the neighborhood. With this information, the Commission found that public convenience would be served by the issuance of the license and the City Council reaffirms this finding. CALIFORNIA ENVIRONMENTAL OUALITY ACT (CEOA) FINDING The proposed project is exempt from the requirements of the California Environmental Quality Act (CEQA) per Section This project qualifies for an exemption from the requirements of CEQA under Section 15301 (Existing facilities) which exempts interior alterations and minor changes in use for existing facilities. 1, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 7"' day of June, 2010, by the following vote, to wit: AYES: COUNCILMEMBERS: Connolly, Heller and Mayor Boro NOES: COUNCILMEMBERS: Brockbank and Levine ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, City Clerk