To:   HONORABLE MAYOR AND                   From:   Stephen M. Haase [PL1] 

                        CITY COUNCIL

 

   Subject:   SEE BELOW                                               Date:   October 29, 2003

 

COUNCIL DISTRICT: 5

 

SUBJECT:  CP03-021.  APPEAL OF THE PLANNING COMMISSION’S DECISION TO APPROVE A CONDITIONAL USE PERMIT TO ALLOW ENTERTAINMENT UNTIL 1:00 A.M. AT AN EXISTING RESTAURANT.

 

 

RECOMMENDATION

 

Staff recommends that the City Council approve the requested Conditional Use Permit to allow the operation of a restaurant until 3:00 a.m. daily and to allow associated entertainment activity until 2:00 a.m.

 

 

BACKGROUND

 

The applicant, Amparo Guizar, filed a Conditional Use Permit (CUP) application on March 19, 2003 requesting the ability to operate after midnight (until 3:00 a.m.) on weekends and specific holidays and to allow entertainment activity until 2:00 a.m. daily at an existing restaurant located at 1733 Story Road.  The Zoning Ordinance requires a Conditional Use Permit for the operation of a commercial use between midnight (12:00 a.m.) and 6:00 a.m. and for the operation of an entertainment establishment in the CG Commercial General Zoning District.  The restaurant currently is allowed to operate until 2:00 a.m. as a legal non-conforming use.  Associated entertainment activity must currently cease at 10:00 p.m.

 

 

PLANNING COMMISSION HEARING

 

The Planning Commission approved the subject Conditional Use Permit with added conditions at a public hearing held on September 24, 2003. Specifically, the Commission did not approve for the extension of the restaurant hours past 2:00 a.m., but did allow for entertainment activities to be conducted until 1:00 a.m.

 

Members of the Commission expressed particular concern regarding the negative impacts that could result from the late-night operation of the restaurant, including the sale of alcohol for on-site consumption, in an area where crime and alcohol consumption are a concern.  The Commission also expressed concern that the restaurant has already been cited by Code Enforcement for operating after midnight without permits and that the extended hours of operation and entertainment could enable the restaurant to operate as a nightclub.  Although the Commission acknowledged that the San Jose Police Department supports allowing extended hours of operation and entertainment, the Commission still maintained that the applicant’s request would create an unacceptable situation caused by the sale of alcohol on-site.  On October 6, 2003, the applicant filed an appeal of the Planning Commission’s decision to approve the CUP without allowing the requested extended hours of operation from 2:00 a.m. to 3:00 a.m., and to allow the operation of an entertainment establishment to 2:00 a.m.  The issues raised in the appeal are addressed in the Analysis section below.  A copy of the appeal is included with this staff report.

 

 

GENERAL PLAN CONFORMANCE

 

The proposed after midnight operation and entertainment use is consistent with the San Jose 2020 General Plan Land Use/Transportation Diagram designation of Neighborhood/Community Commercial in that the proposed use is commercial.

 

 

ENVIRONMENTAL REVIEW

 

The Director of Planning has determined that this project is exempt from further environmental review under the provisions of the California Environmental Quality Act (CEQA).

 

 

PUBLIC PARTICIPATION

 

Notices for the public hearings for the project and for this appeal were mailed to the owners and tenants of all properties located within 500 feet of the project site. Staff has been available to discuss the project with members of the public. 

 

The office manager of the restaurant appeared at the Planning Commission Hearing to speak in support of the project.  No one else from the public spoke in opposition or in support of the proposal.

 

 

ANALYSIS

 

The analysis section of this report focuses solely on the specific issues identified in the letter of appeal that the applicant submitted.  Please see the original staff report (attached) for a more complete discussion of the project.   

 

Appeal:  The Planning Commission’s restriction on the business hours and operations placed on Tacos Al Carbon place unreasonable limitations upon [the] tenant during their busiest, most profitable hours.  Such restrictions may result in the failure of a long-standing business.

 

Staff Response:  The Planning Commission denied the extension of hours of operation from 2:00 a.m. to 3:00 a.m. indicating that the extended hours and additional entertainment would encourage alcohol consumption in a high crime area where it has historically been a concern.  The CG Commercial General Zoning District permits public eating establishments and allows onsite consumption of alcohol as an incidental part of these establishments.  Additionally, Tacos Al Carbon currently has the right to operate between midnight and 2:00 a.m. under its documented legal nonconforming status.  Because alcohol sales for onsite consumption in restaurants is a permitted use by right in this zoning district, the primary issue with the subject Conditional Use Permit is the proposed “after midnight” operation.  As discussed in the attached staff report, the operation as proposed by the applicant, fully conforms to the City Council Policy for late night uses.  The (full service) restaurant is located within a large shopping center in a largely commercial area and located a minimum of 348 feet away from the nearest residential use.  Because all activity is conducted indoors in the interior of a shopping center, it is anticipated that the proposal will not create any negative impacts upon surrounding uses.  The applicant will provide a mitigation management plan to ensure full compliance with the City Council Policy by providing litter control and additional security.   The San Jose Police Department has determined that the proposed extended operation will not create an adverse impact to law enforcement in this area.   The sale of alcohol is regulated by the state’s Department of Alcohol and Beverage Control (ABC) and the City’s Zoning Code allows on-site consumption by right for restaurants.  The subject restaurant has been issued an ABC license for sale of alcohol for consumption onsite.  The ABC license contains specific conditions regulating the sale of alcohol and prohibits the operation of a bar.

 

The Planning Commission approved the operation of an entertainment use for this existing restaurant, but specified that entertainment must end by 1:00 a.m. daily, one hour earlier than the time, 2:00 a.m., requested by the applicant.  The Commission required entertainment to cease at 1:00 a.m. to discourage patrons from loitering at the restaurant, encouraging them to leave by 2:00 a.m., which coincides with the time when the restaurant is required by the State of California to stop serving alcohol.  The project as proposed by the applicant conforms to the City Council policy on nighttime entertainment uses (Guidelines for Evaluation of Nightclub and Bars) as follows.  Late night entertainment (until 2:00 a.m. as proposed) is considered a compatible land use, when located within a larger shopping center.  The restaurant is located more than 500 feet away from the nearest school.  The project will also comply with the Guideline’s standards for noise, parking, garbage and litter.  As stated above, the applicant will provide a mitigation management plan and additional security as part of the project.  The City Council Policy on nighttime entertainment uses states that entertainment hours should cease by 2:00 a.m.  The San Jose Police Department has stated that they also support the extended entertainment hours; however, they have requested that entertainment hours not be extended beyond 2:00 a.m., consistent with City Policy (See attached Police memorandum).

 

The Commission limited entertainment hours because of a concern that the restaurant would be operated as nightclub.  Although the applicant is requesting late night entertainment, they are not requesting that the CUP allow a nightclub.  The proposal is for the operation of a full service restaurant only.  If the applicant does propose a nightclub, the Zoning Ordinance will require a new Conditional Use Permit for its operation.  Any proposed nightclub will be required to comply fully with the City Council Policy on nightclubs and late night entertainment uses and the Zoning Ordinance. 

 

 

CONCLUSION

 

Planning staff concludes that the proposed Conditional Use Permit to allow after midnight operation and entertainment at an existing restaurant conforms to the Zoning Code and the applicable City Council Policies, including the policies for after midnight uses and entertainment.  The Police Department has determined the project will not create an adverse impact on law enforcement efforts in this area.  Staff recommends that the City Council approve the Conditional Use Permit to allow extension of daily restaurant operating hours to 3:00 a.m., and to allow entertainment to 2:00 a.m.

 

 

STEPHEN M. HAASE, DIRECTOR

Planning, Building and Code Enforcement

 

 

Attachments:

Appeal from Dan Hoady, property owner

Staff report for the September 24, 2003 Planning Commission Hearing

Memorandum from the Police Department including maps depicting Police Beats and Census tracts.

 

C:  Danny Hoady.  P.O. Box 14173.  Fremont, CA  94539.

Wayne Renshaw.  255 N. Market Street, Suite 252.  San Jose, CA  95110.

Amparo Guizar.  1733 Story Road.  San Jose, CA  95112.

 

In order to fill in the COUNCIL AGENDA date in the header above, you will need to unlock the template.  I suggest you do this after you complete the memo.