To: HONORABLE MAYOR AND From: Stephen M. Haase, AICP
CITY COUNCIL
COUNCIL
DISTRICT: 6
SUBJECT: CPA95-037-01. APPEAL OF CONDITIONAL USE PERMIT FOR A PROJECT LOCATED ON THE
NORTHEAST CORNER OF WEST SAN CARLOS STREET AND MERIDIAN AVENUE on a 1.08-gross-acre site
in the CG General Commercial Zoning District to allow twenty-four hour
operation of a retail store and drive-through pharmacy and associated site
modifications
The Director of Planning recommends that the City Council uphold the appeal of the Planning Commission’s decision to approve the Conditional Use Permit with Precedent Condition No. 2(a)(6) requiring construction of a masonry wall along the northerly property line and to adopt the attached Resolution with all of the findings and conditions approved by the Planning Commission, except Precedent Condition No. 2 which is recommended to be modified as indicated in the attached Resolution.
This is the appeal of the Planning
Commission’s decision to approve, with conditions, a Conditional Use Permit
Amendment (CPA) to allow twenty-four hour operation of an existing Walgreen’s
retail store and drive-through pharmacy.
In 1995, a Conditional Use Permit
(File No. CP95-37) was approved to allow the construction of the existing
retail store and drive-through pharmacy.
The approved Conditional Use Permit (CUP) included a condition limiting
operation of the store to between the hours of 6:00 a.m. and 12:00 p.m. and the
drive-through pharmacy to between the hours of 6:00 a.m. and 10:00 p.m. The retail store and drive-through pharmacy
were constructed on the site in 1996 and subsequently commenced operating on a
24-hour basis without the benefit of the required permit approval. On January 22, 2002, a Notice of
Noncompliance was sent to the property owner citing failure to comply with the
specified hours of operation and specific elements of the approved site
plan. On July 18, 2002, the property
owner submitted the subject Conditional Use Permit Amendment (CPA) requesting
24-hour operation of the retail store and drive-through pharmacy. Staff worked with the applicant to resolve
the compliance issues and recommended that the Planning Commission approve the
Conditional Use Permit (see attached staff report). On March 26, 2003, the Planning Commission approved the CPA with
an additional condition requiring the installation a masonry wall along the
northern property line. On April 3,
2003, the applicant filed a Notice of Appeal requesting that the requirement
for the wall be deleted from the Permit.
The specific elements of the appeal are addressed in the analysis
below. Subsequent to filing the appeal,
the applicant also submitted revised plans intended to address the plan
revisions required in Precedent Condition No. 2. These plans are addressed below.
The Director of Planning
has determined that this project is exempt from environmental review under the
provisions of the California Environmental Quality Act pursuant to Section
15301 which pertains to the operation, maintenance, or minor alteration
of existing private structures involving negligible or no expansion of use
beyond that existing at the time of the lead agency's determination. The proposed 24-hour operation of the store
and drive-through will not diminish the compatibility of the retail site with
the adjacent residential uses; therefore, the project involves no expansion of
the existing use and staff concludes that this project is exempt from
Environmental Review pursuant to Section 15301.
A community meeting held on August 8, 2002 was sparsely attended. A number of letters from the community expressed support for the proposed 24-hour use. Staff also received comments and a letter from the community requesting that additional on-site lighting be provided through the Conditional Use Permit process. Notices of the Planning Commission hearing on the Conditional Use Permit and the City Council hearing on the appeal were mailed to owners and tenants of all properties located with 1000 feet of the project site. Staff has been available to discuss the project with interested members of the public.
Following is a brief
response to each of the issues raised in the Notice of Appeal.
1. Appeal: “Walgreens is formally appealing the decision of the Planning Commission of the City of San Jose to add an additional condition on the Walgreens’ requested Conditional Use Permit Amendment. The additional condition imposed a requirement that Walgreens construct a masonry wall on the northern boundary of the site. A masonry wall had originally been requested by staff, but after extensive meetings and discussions with City staff, the decision was made to intensify and add additional landscaping on the site in lieu of the masonry wall. The main basis for opting for intensified landscaping was the fact that the majority of the neighbors to the north of the site are commercial uses, not residential uses. It is believed that there are no more than three or four residences that would “benefit” from the masonry wall, while the intensified landscaping enhances the site for the entire community.”
Staff Response: The
City Council Policy for 24 Hour Uses
states that twenty-four hour uses should not be approved unless the facility
can operate without detriment to nearby residential uses or the general welfare
of the surrounding area. In order to
ensure that this requirement can be met, the Policy states that, generally,
twenty-four hour uses should not be located within 300 feet of any property
residentially zoned, planned, or used.
The subject property is located immediately adjacent to properties along
the northerly property line that are occupied by residential uses. The drive-through pharmacy window is located
approximately 108 feet from this property line. The Policy provides for a reduced setback based on specific
mitigating circumstances, which may include, but are not limited to, separation
from residential uses by a street and sound walls or an intervening commercial
building.
Staff
initially requested that the applicant provide a masonry wall adjacent to the
residential property line in order to enhance the separation between the
commercial and residential uses; however, based on the applicant’s concern
regarding the cost of the sound wall, the lack of past complaints regarding
this use and further review of the specific nature of the proposed late night
retail and drive-through window operation, staff concluded that the existing
fence and setback are adequate and consistent with the intent of the City
Council Policy for Evaluation of 24-Hour Uses.
2. Appeal: “Some of the members of the
Planning Commission were operating under a false belief that a masonry wall was
an original Condition of Approval for the project in 1996 that had never been
completed. This is incorrect. The wall was not a condition of the original
approval and was never raised by City staff until Walgreens made this
application for an amendment to the Conditional Use Permit.”
Staff response: A masonry
wall was not required in the original Conditional Use Permit.
3.
Appeal: “It is important to note that there was some confusion regarding the
approved plans for the site. For
whatever reasons, the plans that were approved by the Building Department did
not directly correspond with the plans approved by the Planning
Department. Accordingly, some of the
issues that were originally thought to be non-conforming to the approved plans
were in fact conforming, but to a different set of approved plans.”
Staff response: The site,
as constructed, conformed to neither the approved Conditional Use Permit nor
the approved Building Permits; nevertheless, the applicant agreed to provide
revised plans as a part of the
Conditional Use Permit Amendment that address these compliance issues in regard
to lighting, trees, landscaping, and improved site maintenance. Based on this agreement for additional site
improvements and maintenance, staff concluded that the Conditional Use Permit
Amendment, as recommended to the Planning Commission for approval, would bring
the site into conformance with City standards.
4. Appeal: “Over the past thirteen
months the applicants and City staff have worked to resolve these discrepancies
as well as address the pros and cons of a masonry wall versus intensified
landscaping. The resulting site plan
that was presented to the Planning Commission represented what, in the opinion
of both the applicant and City staff, was the plan that made the most sense and
benefited the most people. While City
policy normally prefers a masonry wall on commercial establishments, the unique
circumstances of this location and the fact that so few residential neighbors
are actually benefited by the wall, makes it a perfect example where common
sense and flexible governance should prevail and create a practical, mutually
beneficial solution.”
Staff response: For the reasons stated above, staff recommended approval of the CPA without the requirement for a masonry wall and continues to believe that the proposed project will be compatible with adjacent uses without the wall.
5. Appeal: The Planning Commission’s decision to “reinstate” the Condition of the masonry wall had the effect of negating all of the discussions and negotiations between the City staff and the applicant. Accordingly, Walgreens requests that the City Council drop the condition of the masonry wall and approve the amendment for the Conditional Use Permit based on the staff report originally presented to the Planning Commission.
Staff response: Staff
recommends that the City Council uphold the appeal and adopt a resolution
approving the Conditional Use Permit without the requirement for a wall.
In addition to requiring a wall, the revised plan condition included in the Planning Commission Resolution (Precedent Condition No. 2) required submittal of a complete set of revised plans that provided additional landscaping, removal and modification of existing on-site lighting and the addition of new lighting. While the applicant has agreed to make these revisions, the recently submitted plan set contains inconsistent and incomplete information that still needs to be revised. As a result, the same condition (minus the wall requirement) is included as Condition No. 2 of the attached draft resolution. Staff has added language to the Condition clarifying that the proposed street trees must be watered for a minimum of three years and until they are well-established, in conformance with the recommendations of the City arborist.
The original conditions of approval, as recommended by Planning staff, provide for additional landscaping, lighting and improved maintenance of the site that staff believes will improve its compatibility with adjacent uses and the surrounding community. Based on these improvements, the apparent neighborhood support for the late night operation and the lack of prior complaints regarding compatibility with adjacent residential uses, staff believes that approval of the Conditional Use Permit without the requirement for a wall is appropriate.
STEPHEN M. HAASE, DIRECTOR
Planning, Building and Code Enforcement