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SR-101194-7A 7A . PCD:SF:DKW:SHK:f:\plan\share\counc1l\strpt\a94008 Council Mtg: October 11, 1994 Santa Monica, Callfornla TO: Mayor and C~ty Counc~l OCT f t 1994 FROM: City Staff SUBJECT: Appeal of Planning Commiss~on Approval of Condltional Use Permlt 94-008 to Allow a Change from a Type-20 (Off-Sale Beer and Wine) Alcohol License to a Type-21 (Off-Sale General) Alcohol License in Conjunctlon wlth a Wlne Store. This Appllcat10n also includes a Request to Amend Condltional Use Permit 90-074, which Permitted W1ne Tasting, by Relocatlng the Wine Tasting from the Rear of the Flrst Floor to the Loft Area on the Second Floor Appllcant/Appellant: Robert Plcone Appellants: Ken Genser Stephanle Barbanell INTRODUCTION The operatlon of a retail Wlne store w1th Wlne tastlng at the site of a former Wlne shop on Montana Avenue 1S proposed. Var10us aprpovals of this proJect have been prevlously acted on by both the Planning Commission and the Cl ty Council. As detalled In the staff report, the wine shop use has a complicated hlstory due to the number and type of both City and State ABC approvals and appeals, together with physlcal, operatlonal, and ownershlp changes. However, the essent1al request approved by the Planning Commlssion and now before the Clty Council is for a wlDe store, lncludlng pre-purchase Wlne tasting, and Ilmited wine tasting classes. This report recommends that the Clty Council uphold the decislon of the Planning Commission and approve Condltlonal Use Permit OCT f 1 1994 - 1 - /A .. (CUP) 94-008 to allow the upgrade from a Type-20 (Off-Sale Beer and W1ne) alcohol 11cense to a Type-21 (Off-Sale General) alcohol license 1n con]Unctlon w1th the wine store. The Planning Commiss1on approval also amended Cond1t1onal Use Permit 90-074, wh1ch or1ginally approved W1ne tast1ng. The amendment allowed the W1ne tast1ng to be relocated from the f1rst floor to the loft area on the second floor. On July 6, 1994, the Planning Commission voted 4-0, with one abstention, to approve the app11cant' s request for CUP 94 -008 This action has been appealed by the app11cant, Robert Picone, Counc11member Ken Genser, and Stephanie Barbanell The appeal statements are conta1ned 1n Attachments A-C. BACKGROUND The previous tenant at th1s locatlon, The Montana W1ne Company, went out of business on January 4, 1994. A Conditional Use Permit (CUp 546) was approved by Plann1ng Commission on November 2, 1988 to perm1t the 1ssuance of a Type 20 (Off-Sale Beer & W1ne) for the operation of a 2,625 sq. ft. bakery and retail wine shop (tenant spaces #A and #B). Approx1mately 1,500 sq.ft. of floor space was used for the Montana W1ne Company (tenant space B). Odeon Bakery obtained a lease for the remaln1ng port1on of the building on August 9, 1988 Odeon Bakery and the Montana Wine Company are two separate bUSlnesses and the bakery was not considered part of the Montana W1ne Company's prem1ses by the State Alcohol Beverage Control agency (ABC). - 2 - On March 12, 1991, a Conditional Use Permit (CUP 90-074) was approved by the Clty Council on appeal. This CUP allowed wine- tastlng and Wlne tasting classes in conjunction wlth a Type-42 (On-sale Beer and Wine for PubllC Premlses) alcohol llcense. At that time, expansion of the establishment east lnto the adjacent 1,200 sq. ft. retall space (tenant space #C) was also approved. The wine shop subsequently expanded into tenant space #C, but it lS unclear durlng what perlod of time the wine shop occupied that space That retail space is now occupied by Emack & Bo110'S, a retail ice cream & frozen yogurt store. Tenant space #C was approved by ABC for expansion of the Type-20 (Off-Sale Beer and Wlne) alcohol llcense on February 4, 1992. The Planning Commission approved the wine tasting in the loft area on the second floor, but when the approval, on appeal, was upheld by City Council, the approval relocated the Wlne tastlng from the loft area to an area on the ground floor at the rear of the store. The wine tasting area approved by the ABC, (Attachment R) was an area 14' x 17' on the ground floor at the rear of tenant space #B only. The Montana Wlne Company had dlfflculty complYlng wlth ABC regulations regardlng thelr Type-20 (Off-Sale Beer & Wine) license. A California statute in effect since 1985 requires that for a Type-20, 50% of the gross sales be non-alcohollC retall ltems. Unable to meet this criteria, since Wlne sales were almost 100% of gross sales, the preVlOUS owner lndlcated that thelr only practical option was to change the license type to a Type-21, - 3 - which allows general sp1r1ts sales without the non-alcoholic reta~l sale llm1tat1on. On June 2, 1992, a Conditional Use Perm1t (CUP 91-041) was approved by C1ty Council on appeal. This CUP allowed an upgrade from the existing Type-20 (Off-Sale Beer & Wine) to a Type-21 (Off-Sale General) Cond1tlon #16 of that approval required that ABC approvals be obtalned within one year of the CUP approval One gO-day extension of th1S tlme perlod was permitted. ABC approvals were not obtained during th1S perlod and the approval expired, however the approval for the Type 42 license remalned valid as th1S was a separate and previously act1vated approval. The current appllcatlon is similar to the one approved in 1992, however, the current applicant 1S a new operator, unrelated to the previous owner The applicant, Robert Plcone, lntends to operate a retail wine store with some Wlne tastlng classes and wine tastlng available to customers to ald In their selectlon of wines The general spirits sales would include a l~mlted amount of quality spirits and liqueurs which would complement the retall wine sales. Planninq CommlSS1on Act10n In July 1994 the Plannlng CommlSSlon approved the proposed project with numerous condltions. The Commission' S d~scussion focussed on the proposed Wlne classes and on accesslbllity lssues. The Commlssion modlf1ed several cond1tlons of approval, - 4 - changing the amount of wine that could be consumed at the wine classes, Ilm1t1ng class size to no more than sixteen persons to address park1ng concerns, a:1d deleting a condition concerning sale of "convenience-s1zed" bottles Wh1Ch the C1ty Attorney adv1sed was pre-empted by the State of Callforn1a Although a deta1led analysis of access1b1l1 ty issues was not available at the time of Commission action, the Comm1ssion adopted a condition requ1r1ng conformance w1th d1sabled access standards Appellant Genser's Concerns Counc1lmember Ken Genser appealed the dec1s1on of the Plann1ng Comm1SS1on because of concerns regarding the parking available at the sub] ect location and d1sabled access to the W1ne tasting classroom (Attachment G). One of the findings that must be made in order to approve a CUP for an alcohol outlet 1S that traffic and park1ng congest1on will not occur as a result of the discretionary perm1t Councilmember Genser ma1nta1ns that if wine-tasting classes are offered 1n early even1ng hours, there may be a parking def1c1ency The appl1cant, in response to this concern, prepared a study of the available parking 1n the lot at 625 Montana, and on the street wlth1n a one block radius from the Montana/Seventh Street intersection. The study (Attachment J) monitored the parking situation from 5:00 pm to 9:00 pm, Monday through Fr1day evening, and 12:00 pm to 4:00 pm Saturday and Sunday during the week of August 1-7, 1994. In review1ng thlS data, staff observes that - 5 - there is no regular pattern to the numbey of park1ng spaces available at any given time. There were, however, some parking spaces available at all times. The park1ng lot had ava1lable park1ng all times throughout the week. There were never less than ~en spaces available 1TI the parklng lot on Monday even1ng and all day Sunday. The least number of parking spaces ava1lable, both 1n the parklng lot and on the street, occurred on Thursday even1ng when only 12 park1ng spaces were available 1n the park1ng lot. The peak parking period occurred on Thursday even1ng, approximately from 6:45 pm to 7'45 pm. In order to verlfy ::he informat1on prov1ded by the appl1cant, Staff conducted a random spot check of ava1lable parking spaces SepteMber 15-23, 1994. A compar1son of staff's park1ng check and the appl1cant's survey 1S shown below: DAY/TIME PARKING LOT Appl1cant/Staff BOTH SIDES MONTANA BET 6th & LINCOLN App't/Staff BOTH SIDES 7TH ONE BLK. NORTH & SOUTH App't/Staff Tues/6pm Wed/6:15pm Thursj7:15pm Fri/7:30pm 18 16 12 11 13* 18* 10* 8* 4 6 2 1 7 8 8 6 5 3 2 7 19* 21* 7* 11* * includes d1sabled spaces (both park1ng lot and street) Based on the spot check, the appllcant's tally of avallable parking spaces appears accurate. Staff's spot checks ind1cated that at times more street parking was available than the applicant's tally indicated. The cond1t1ons of approval limit the number of people attending wine tastings and W1ne educational - 6 - classes to a maximum of slxteen people. According to the applicant, on average, 75% of people attending wine classes attend as part of a couple, minimizing the amount of add1t1onal traffic expected for W1ne classes. Most classes would be conducted during evening hours, when retail customers would be expected to be relat1vely few 10 number. Even assuming that 50% of the attendees arrive together, the wine classes would create a demand of twelve spaces. ThlS, comb1ned with a parklng requ1rement of 5 spaces for the reta11 W1ne shop, results 1n a maX1mum parking demand of 17 spaces. Based on the parkln gsurvey, th1S demand would be satisfied by the avai:able on-s1te and off-site parking. Councilmember Genser's appeal also addresses the issue of disabled access. Condition #3 of CUP 94-008, requires the applicant to review the d1sabled access plan with the C1ty'S Director of Planning to make any necessary changes to achleve compllance. In response to concerns regard1ng the dlsabled access to the W1ne tasting loft, the appl1cant's plan for accessibility 1S as follows. A The store w1ll ma1ntain a table on the ground floor of the store Wh1Ch will be available at all times when wine-tast1ng and/or educational classes w1Il be conducted. The table, large enough to accommodate two people, wlll be located in a spec1fled area and will be available for pre- purchase wine tastlng and educat10nal classes by any d1sabled indiv1dual or other person unable to walk up the stairs to the store's upper level. - 7 - B. The table will be prepared with 1dent1cal amen~ t~es as prov1ded 1n the upper level, 1nclud1ng the same general appearance, identical wines in identical amounts, and all course materials or handouts. For pre-purchase W1ne- tast1ng, the 1dent1cal select10n of W1nes w1II be available downstairs as upstairs. C. There w1II be a sens1t1ve, two-way intercom system between the downstairs table and the upstairs educat10nal class. To promote soc1al interact1on, the 1ntercom w1II enable ~nd1V1duals upstairs and downstairs to hear one another. D. Lecturers w1II be encouraged and directed to acknowledge and commun1cate d1rectly w1th any participants in the ground floor table as an alternative location for W1ne tastlng for those persons who are unable to get up the sta1rs. E. The owner w1II post a sign informing patrons of the availabil1ty of the ground floor table as an alternat1ve location for wine tasting for those persons who are unable to get up the stairs. F. The owner wlll provlde physical assistance to any person seeklng ass1stance ln getting up the sta~rs. On an ongo1ng bas1s, the owner will educate and encourage hlS staff to be sensltlve to the spec1al needs of disabled people. G. The owner w~ll design the floor plan of display shelves on the ground floor to accommodate handlcapped circulation. The applicant hlred Robert Gorski to review the proposed plan for accessibll1ty. Mr. Gorski 1S the Accessibility Issues Coordinator for the City of Pasadena. He believes the appl1cant's plan meets both the letter and sp1r1t of bU1ldlng code and federal regulatlons and goes beyond what would be required under the Amerlcans wlth Disabil1t1es Act (ADA) requlrements - 8 - The Clty'S disabled access coordlnator, Audrey Parker, reviewed the appllcant's plan and does not agree with Mr. Gorski's conclusions (Attachment K) Accordlng to Ms. Parker, the applicant's proposal does not meet the ADA Title III Public Accommodations requirement, nor does lt address the Ilsp1rlt of ADN' which is to not only provlde access to services but to do so ln an lntegrated settlng. Ms. Parker suggests that if the wine tastlng and educatlon actlvltles occur on the loft level, the store should be requlred to include accesslble and non-accesslble lnformatlon in all of lts advertlslng materials and conduct the tast1ng and all educatlonal activities on the flrst floor whenever a patron lS unable to use the stalrs to the second floor. To further evaluate this lssue, staff retained Peter Robertson, an accessibl11ty consultant. Mr Peterson is president of Access Unllmited, Accessibility Management Specialists. Mr. Peterson is ln overall agreement wlth the comments made by Ms. Parker. His report 18 lncluded as Attachment L. Accordlng to Mr Peterson, conducting the Wlne classes in the loft area creates a situation WhlCh does not provlde an equlvalent area ln an lntegrated settlng for disabled persons on the flrst floor. Part of any class experience 1S lnteraction wlth classmates as well as the lnstructor. Mr. Robertson feels the two-way intercom system falls short of providing an integrated settlng for partlclpants on either level. - 9 - However, Mr Robertson does feel the proposal to prov1de pre- purchase W1ne tast1ng serV1ces on the ground floor for patrons with disabil1t1es 1S a reasonable alternative. This space should be permanent, clearly marked and prov1de the sames facilities, services and amenit1es that are available on the mezzan1ne level. The hours of availab111ty of the pre-purchase W1ne tasting serV1ces on the ground level must be the same as that provided on the mezzanine level. An alternative proposed by Mr Robertson is to Ilm1t the educat10nal W1ne tast1ng classes to t1mes of the day when the ground floor can accommodate the ent1re class as well as any wine-tast1ng activity. Another alternative could be to des1gnate one or two of the educational wine tasting classes as being offered on the accessible level and include this in any marketing and advert1sing of the educational wine tasting schedule In order to comply with conditions of ABC, these classes would have to occur after regular store hours. There is a power- ass1sted, portable wheelcha1r 11ft, 11 Stair- Trac", ava1lable on the market, which Mr. Robertson discusses in h1S report. This wheel chair lift could prov1de vert1cal access for disabled persons between levels. Mr. Robertson points out that clearance requirements may not be met 1n the W1ne store because the second landing may not be large enough to accommodate this device. - 10 - Mr. Robertson also has concerns regarding the d1sabled access1b1l1ty to the W1ne store from the street and rear parking lot. The vertical change 1S greater than 1 II at the front entrance and greater than 311 at the rear entrance. Removal of these barr1ers 1S 1ncluded as a condition of approval. Appl1cant's Appeal The appl1cant, Robert Picane/ has appealed the cond1t1ons of the Planning Commission/ s decision. No specific issues have been noted, but the applicant/s attorney has indicated that the applicant filed an appeal to reserve the right to appeal to City Council if the appllcant / s disabled accessibility plan was not approved by City staff. Appellant Barbanell/s Concerns Stephanle Barbanell is appealing both the approval of the upgrade from Type-20 (Off-Sale Beer and wine) alcohol llcense to a Type- 21 (Off-Sale General) alcohol license and the approval of the amendment to CUP 90-074, which approved a Type-42 (On-Sale Beer and Wlne for Public Premlses) alcohol llcense to permit Wlne tasting/ by relocating the W1ne tast1ng to the loft. Ms. Barbanell/s concerns have been outlined 1n her appeal statement (Attachment C). Ms. Barbanell's overrlding concern regardlng the upgrade from a Type-20 to Type-21 alcohol license is the bellef that this locatlon will become a full llquor store. The appllcant has not - 11 - proposed thlS use at the premlses and conditions of CUP 94-008, speclflcally Condltlcns #8, 9, and 10, restrict sales of spirits and requlre that the premlses remain as primarily retall Wlne sales. Ms. Barbanell sees the proposed upgrade ln llcense type as an lntenslfication of use and belleves the conditions of approval are not enforceable. She states that wlth only two people in the Vice Unit and two zoning Inspectors, Clty staff wlll not be able to proactlvely enforce these conditions However, staff generally conducts enforcement activity on a complalnt basls and would respond to any alleged vlolations at the establlshment. Ms. Barbanell also indicates that it lS not the policy of the Alcohollc Beverage Control board to limit the sales of splrl ts to 10% of the gross sales lf the premises lS issued a Type-21 alcohol license. However, the applicant has accepted thlS condltlon, and any vlolatlon of the condltlon would be subJect to enforcement action by the City. Another questlon posed by Ms Barbanell lS whether the Type-42 alcohol llcense ln fact had already expired prior to this application. CUP 90-074 for approval of the Type-42 alcohol license to permlt the Wlne tastlng in the loft area was approved on January 9, 1991 by Plannlng CommlSS1on. The approval was appealed to Councll. The appeal was denied and the Council approved CUP 90-074 on March 12, 1991 with the amendment that the wine-tasting area located on the ground floor "1n order to meet Title 24". Also lncluded in this approval was a speclal condltlon whlch limited the expanslon to the east (Tenant Space - 12 - #C} to retall sales of Wlne only with no expansion of rlghts for the approval of the wine tastlng serVlce. The permlt was to explre one year from tl:e effectlve date of approval, with a possible extension to June 12, 1992 A letter from the applicant, Murray Weber, dated February 7, 1992, requested a six-month extension to CUP 90-074. In a letter dated February 26, 1992, the Planning Manager responded that the maximum extension that may be granted is three months. Staff identifled violations of ABC requirements and reports from SMPD regardlng one sale to a minor, and wine store patrons purchasing wine at the wine store and then consuming lt at the Odeon bakery, WhlCh was not llcensed for on-site consumption. Given this lnformatlon, the Planning Manager did not approve the extension request and further noted that staff was not recommending approval of the request for a Type-21 alcohol license. The appllcant, Murray Weber, responded in a letter dated March 4, 1992, to the points raised regarding violatlons. In a follow-up letter dated March 10, 1992, to Mr. Weber, staff amended the prevlous letter of February 26, 1992 and approved an extenslon of CUP 90-074 to March 19, 1992, citlng lithe Plannlng Commission's contlnuance of action on thlS matter to March 18, 1992." On March 18, 1992, the Planning Commission approved CUP 91-041, to allow an upgrade from the existing Type-20 (Off-Sale Beer and Wine) alcohol llcense to a Type-21 (Off-Sale General} alcohol - 13 - llcense Followlng Planning Commission approval of CUP 91-041, a letter dated March 30, 1992, from the City's Senior Planner to Mr. Weber, granted one three month extension The Senior Planner's letter indicates that the CUP would explre on June 12, 1992 and no further extensions would be granted. Mr. Weber received his ABC approval for the Type - 4 2 alcohol llcense on May 26, 1992, prlor to the June 12, 1992 expirat10n date, vesting the r1ghts granted under the CUP. Ms. Barbanell bel1eves the C1ty cannot make the findings required to approve the upgrade of llcense type. She cla1ms that w1thout a citYW1de alcohol POllCY WhlCh ldentifies how many alcohol outlets would be acceptable ln each district or neighborhood, it is lmposslble to make the flnd1ng that thlS premlse wlll not result in an overconcentratlon of alcohol outlets. However, the Clty'S Zonlng Ordinance expresses the C1ty'S current alcohol pollcles, and allows the conslderatlon of alcohol CUPs on a case- by-case basis. The Plannlng CommlSS1on found that the proj ect merited approval. She also believes that the f1ndlng regarding protectlon of the publ1c health, safety and welfare cannot be made. Ms Barbanell 1S concerned regardlng the safety of school chlldren at Roosevelt Elementary School and Early Years Pre-School due to the upgrade 1n alcohol license type. Ms. Barbanell 1S concerned that increased traffic due to wine classes may occur at the same t1me - 14 - children are returnlng home from school. Staff feels the proposed condltlons adequately protect the school chlldren and resldents of the surroundlng area by requiring classes to begln after 5:00 pm on weekdays as llsted In Condltlon #5 The public health, safety and welfare is also not protected, accordlng to Ms. Barbanell, because of the lack of personnel to enforce conditions and because the City has made assumptlons regarding health issues that only the County Department of Health has the expertise to address. The Planning Commission action includes required findlngs on this issue. Ms. Barbanell belleves that the original approval for a Type-20 (Off-Sale Beer and Wlne) alcohol 11cense at the Montana Wlne Co. and the Odeon Bakery is still in effect for the Ode on Bakery. The request included as part of CUP 546 was for a bakery and a retail Wlne shop, but the bakery was not considered part of the Montana Wlne Company's premlses by the State ABC and is not in effect for Odeon Bakery, as these are two separate buslnesses. The prevlous tenant at the Montana Wine Company had a history of Clty zonlng and State ABC llcense violations which Ms. Barbanell states was a draln on the llmlted enforcement resources in the City whlch could potentlally occur again. According to Ms. Barbanell, past violatlons lncluded sales to minors, alcohol use expanding into the Odeon Bakery and IYlng to the City Council. However, the current applicant is not assoclated wlth the past - 15 - operator. While prevlous experlences at thlS locatlon may serve as a warnlng of potential problems, staff feels the new operator should not be penallzed for alleged vlolations by prior operators. The Santa Monlca Police Department (SMPD) had no concerns regardlng this application lf speclflc lssues were addressed as part of the conditions of approval The SMPD wanted to ensure that no sales of convenlence-Slze alcohol contalners would be permltted However, the Clty Attorney's offlce revlewed this condltlon and determlned that the City was not able to llmlt this type of product due to State pre-emption in thlS area, and the Plannlng Commission deleted thlS condltion. This issue has been revlewed with the pollce Department and the condltlons adopted by the Plannlng Commission are acceptable. Another concern of Ms. Barbanell is that the flndlngs of facts presented in the Plannlng Commission staff report and STOA were arb1trary and therefore the Justification for approval is faulty wlth clrcular reasonlng. Staff believes that the Commlssion's actlon approving the Wlne shop was based on the specifics of the applicant's proposal and the requlrements of the Zonlng Ordlnance and 1S fully supportable ANALYSIS ThlS appllcation lS slmllar to a previous Conditional Use Permlt appllcatlon, CUP 91-041 which was approved by Planning Commisslon - 16 - and upheld on appeal to City Council, ln June 1992 Condition #16 of that approval required that the rlghts granted would explre lf the requlred ABC approvals were not obtained. The ABC approvals were not obtalned and the approval explred. A retall Wlne store must sell 50% of lts gross receipts in non- alcoholic items to meet the ABC's requirements for a Type-20 (Off-Sale Beer & Wine) alcohol llcense The applicant prefers to focus his store prlmarily on the wine sales. A Type-21 (Off-Sale General) would allow the applicant to sell Wlne wlthout selling at least 50% of ltS gross receipts ln non-alcoholic items. The applicant intends to also sell a Ilmlted amount of quality spirits and llqueurs which he feels would complement the sale of Wlnes One of the lssues raised in the appeals regards the adequacy of parking. Based on the parklng survey submitted by the appllcant, which staff has corroborated, adequate parking appears to be available In the parking lot as well as on the street durlng the proposed operating hours. Another concern is protectlng resldents, especlally children, from drivers who may have been Wlne tastlng. Conditions #5 and #15 address these concerns by Ilmlting the hours of wine tastlng and requlrlng the owner to provide a plan for employee alcohol awareness. Further, Alcohol Condltlon #6 limlts the amount of wine that may be consumed The lntent of the owner is to operate - 17 - a store which is primarily a retail W1ne store. In addltlon to Ilmltlng the sale and storage area for spirits, staff recommends Condltion #9, wh1ch requ1res a f1xed location for a spirits dlsplay area The Councll may choose to review another approach to allow this applicant to operate a retall Wlne store. A Type-42 (On- sale Beer and Wlne for Public Premises} alcohol llcense, Wh1Ch 1S required for the Wlne tasting, could be expanded by the ABC to include off-sale Wlne as well. This would limit the appllcant to sell only beer and Wlne, but there would be no requirement regardlng limiting the gross sales to 50% alcoholic versus 50% non-alcoholic i terns. However, under this approach, no minors, even those accompanied by parents, would be allowed in the store, creat1ng a condl tlon WhlCh may be difficult for the store to enforce, as well as potentially affectlng the business's vlablllty. The applicant w1shes to relocate the W1ne tastlng activity to the loft on the second floor. The location of the W1ne tastlng on the first floor was limiting because mlnors, even 1f accompanled by parents, could not enter the store. By movlng the Wlne tast1ng area to the loft, the wine tast1ng activity lS kept 1n a more easlly controlled area. However, it would appear that short of providing an elevator or lift to the loft area, the applicant's proposed disabled access - 18 - plan does not satisfy the requlrements or splrit of Title 24 and ADA requirements. The Dlsabled Access Speclallst hired by the City lS not ln agreement with the consultant hired by the appllcant. Based on the analysls provided by Peter Robertson, the wine tastlng activlty lS best left on the ground floor where access for disabled people, including both class attendees and potentlal instructors, lS not a problem. NOTICING The subJect property was posted from the tlme the appllcatlon was flIed and has had the lnformation regarding tlme and date of the meetlng posted for more than two weeks prlor to the meeting. In addltlon, all property owners and tenants were mailed a notlce of the meetlng. BUDGET/FINANCIAL IMPACT The recommendatlon presented in thlS report does not have any budget or fiscal lmpact. RECOMMENDATION It is respectfully recommended that the Councll deny the appeal and uphold the Plannlng Commission approval of Condltlonal Use Permlt 94-008, modlfy the approval to permlt the upgrade from Type-20 to Type-21, but deny the amendment to CUP 90-074 and keep the wine tasting on the ground floor ln an area not to exceed 250 sq.ft., based on the following flndlngs and conditions: - 19 - CONDITIONAL USE PERMIT FINDINGS 1. The proposed use 1S one conditionally permltted wlthln the subJect dlstrlct and compIles wlth all of the appllcable provlslons of the "City of Santa Monlca Comprehens1ve Land Use and Zoning Ordinance", ln that the proposal to upgrade the existing Type-20 (Off-Sale Beer & Wlne) to a Type 21 (Off - Sale General) alcohol license for a new retall Wlne store 18 a conditionally permitted use ln the C2 (Neighborhood Commerclal) Dlstrict and the project condltlons of approval ensure that the pedestrlan orlented, neighborhood commerclal character of the area will be protected. 2. The proposed use would not impair the integrl ty and character of the distr1ct ln Wh1Ch 1t lS to be established or located, In that the use is for an upgrade from an eXlsting Type-20 (Off-Sale Beer & Wlne) to a Type 21 (Off-Sale General) alcohol llcense for a new retail W1ne store and 1n that condltions of approval will limlt the quantlty of spirit sales to ten percent (10%) of total alcohol sales, that a flxed locatlon will be establlshed for spirits, and that on-site consumption of spirits is not permltted. 3. The subJect parcel is physlcally suitable for the type of land use being proposed, in that the proposal is for an eXlsting commerclal structure ln the C2 district. 4. The proposed use 1S compatlble w1th any of the land ~ses presently on the subJect parcel if the present land uses are to remaln, In that the lssuance of a Type 21 (Off-Sale General) alcohol 11cense adds the off-sale of spirits to an existlng commercial structure where sales of beer and wine 1S permltted, and that thlS type of reta1l establishment lS compatible with the existing food and retall uses on the subJect site 5. The proposed use would be compatlble with existing and permisslble land uses withln the d1strict and the general area ln which the proposed use is to be located, ln that the zon1ng of the slte condltlonally permlts the issuance of an alcohol license, that conditions of approval will llmit the quantlty of sales of spirits to ten percent (10%) of total alcohol sales, that a flxed location will be established for splrlts, that on- slte consumption of splrlts is not permltted and that these condltions ensure that the retail Wlne - 20 - store with incidental wine tast1ng compatible w1th adJacent reta11 and uses 1n the C2 District. will be restaurant 6. There are adequate provisions for water, sanitat1on, and public util1tles and services to ensure that the proposed use would not be detrlmental to publ1c health and safety, 1n that the slte lS located in located 1n an eXlstlng sales establishment 1n an eX1sting commerc1al structure in the C2 district and all amen1ties are on-s1te and the subject site lS adequately served by eX1st1ng 1nfrastructure. 7. Public access to the proposed use will be adequate, 1n that 50 eX1sting parking spaces are prov1ded on-s1te and that a parking survey has demonstrated these spaces adequately support park1ng demand for the existing bU1ld1ng uses, the slte 1S w1thin walking d1stance of an Rl (Single Family Res1dent1al) D1strict and a NWR2 (Low Dens1ty Mult1-Family Residential) D1str1ct and is served by public transportat1on on Montana Avenue and Seventh Street. 8. The phys1cal location or placement of the use on the slte lS compatible with and relates harmon1ously to the surrounding neighborhood, 1n that the proposed alcohol llcense w1lI be for an allowed reta11 W1ne store which is consistent w1th the C2 (Neighborhood Commerc1al) district zon1ng. 9 The proposed use is consistent with the goals, obJect1ves, and policies of the General Plan, in that the use 1S for an upgrade from an existlng Type-20 (Off-Sale Beer & W1ne) to a Type 21 (Off- Sale General) alcohol 11cense for a new retail W1ne store and in that cond1t1ons of approval w1II Ilm1t the quant1ty of sales of spirits to ten percent (10%) of total alcohol sales, that a fixed location will be establlshed for splrits, and that on-s1te consumptlon of spirits is not perm1tted, and 1n that ObJective 1.7 of the Land Use and Circulation Element of the General Plan for the Neighborhood Commercial Distr1ct 1S to protect and expand uses that provlde for the day-to-day ShOpp1~g and serV1ce needs of nearby residents and for the C1ty to encourage the provision of neighborhood commerc1al serV1ces wl~h1n walking dlstance of all ne1ghborhoods. 10. The proposed use would not be detrimental to the public interest, health, safety, conven1ence, or - 21 - general welfare, 1n that the use is for an upgrade from an exist1ng Type-20 (Off-Sale Beer & Wine) to a Type 21 (Off-Sale Gene~al) alcohol license for a new reta1l W1ne store and 1n that conditions of approval w1II llm1t the quant1ty of sales of sp1r1ts to ten percent (10%) of total alcohol sales, that a f1xed locat1on w1lI be established for sp1r1ts, and that on-s1te consumpt1on of sp1r1ts 1S not perm1tted, and the proposed use is consistent with the Zoning Ordinance, and the Land Use Element of the General Plan. 11. The proposed use conforms prec1sely to the applicable performance standards contained in Subchapter 9.04.12 of the City of Santa Monica Comprehens 1 ve Land Use and Zon1ng Ord1nance, in that no performance standard perm1t 1S required. 12. The proposed use w1lI not result 1n an overconcentrat1on of such uses in the immediate vicini ty, in that the proposed alcohol license will be for an alcohol outlet for retail sales of wine with an upgrade to a Type-21 (Off-Sale General) alcohol license, and in that the area is 1n a commerc1al area of Santa Monica Wh1Ch is frequented by large numbers of local res1dents as well as office workers, shoppers, and visitors from outside the City. ALCOHOL OUTLET FINDINGS 1. The proposed use and locat1cn are 1n accordance with good zoning practice, 1n the publ1C 1nterest, and necessary that substantial justice be done in that the alcohol 11cense w1II be for an upgrade from an exist1ng Type-20 (Off -Sale Beer & W1ne) to a Type 21 (Off-Sale General) alcohol 11cense for a new reta11 W1ne store and in that conditions of approval w1Il Ilm1t the quantity of sales of sp1r1ts to ten percent (10%) of total alcohol sales, that a f1xed location will be established for sp1r1ts, and that on-site consumption of sp1r1ts 1S not permitted. 2. The proposed use will not adversely affect the welfare of neighborhood res1dents in a significant manner in that the use w1II be located in a commercial area, away from any maJor residential uses. 3. The proposed use will not co~tr1bute to an undue concentrat1on of alcohol outlets 1n the area in that a retail wine store w1th an upgrade from an - 22 - existing Type-20 (Off-Sale Beer & Wine) to a Type- 21 (Off-Sale General) alcohol llcense is not typlcally consldered to contribute to ob]ectlonable problems associated with alcohol outlets, that, wlthln a 500' radlus of the establlshment, there are a total of three other alcohol outlets, and that the area is in a neighborhood commerclal dlstrlct of Santa Monica whlch lS frequented by large numbers of local resldents as well as offlce workers, shoppers, and visltors from outslde the area. Furthermore, this type of outlet has not contrlbuted significantly to alcohol related problems in the area. 4. The proposed use wlll not detrlmentally affect nearby nelghborhoods conslderlng the dlstance of the alcohol outlet to residential buildings, churches, schools, hospitals, playgrounds, parks, and other eXlsting alcohol outlets in that the condltions for approval, such as limiting quantity of sales of spirlts to ten percent (10%) of total alcohol sales with a fixed location establlshed for splrlts, and no on-slte consumption of splrlts, and no Wlne tastlng prlor to 5: 00 pm, will minimize the potential affect on the resldentlal uses In the vicinity. 5. The proposed use is compatible wlth existing and potential uses within the general area In that the retall Wlne store lS In a commerclal dlstrlct, and a retall wine store wlth an upgrade from an existing Type-20 (Off-Sale Beer & Wine) to a Type 21 (Off-Sale General) alcohol llcense for a new retall Wlne store and In that condltlons of approval will limit the quantity of sales of splrlts to ten percent (10%) of total alcohol sales, that a flxed locatlon wlll be establlshed for spirits, and that on-slte consumption of splrits is not permitted, is compatible with permltted uses and existing on-site food and retall uses. 6. Traffic and parking congestlon wlll not result from the proposed use in that parklng for a retall Wlne store wlth an upgrade from an eXlsting Type- 20 (Off-Sale Beer & Wine) to a Type 21 (Off-Sale General) alcohol llcense is available on-site and will not slgnlflcantly alter existing traffic patterns as compared to the previous operation, does not require addltlonal parklng spaces, and that a parking survey has demonstrated that adequate parklng lS avallable on-site for existing and proposed uses. - 23 - 7. The publ1C health, safety, and general welfare are protected in that the proJect 1S conslstent with the prOV1S1ons of the Zoning Ordinance, and the Land Use Element of the General Plan which allow general retail uses ln the C2, Neighborhood Commercial, Dlstrlct. 8 . No harm to adJacent propertles w1ll result in that the condit1ons of approval w1ll ensure that the establ1shment operates as a retail wine store wlth an upgrade from an existing Type-20 (Off-Sale Beer & Wine) to a Type 21 (Off-Sale General) alcohol llcense for a new reta1l W1ne store and in that cond1t1ons of approval wlll Ilmlt the quantity of spirits sales to ten percent (10%) of total alcohol sales, that a flxed locat1on will be establ1shed for splr1ts, and that on-site consumptlon of SplTltS 1S not permltted. 9. The proposed use lS cons1stent w1th the objectives of the General Plan in that the Land Use Element of the General Plan deslgnates the area as a ne1ghborhood commercial dlstrict and a retail wine store with a Ilmlted quantlty of splr1ts lS compatlble w1th thlS deslgnatlon. CONDITIONS OF APPROVAL 1. This approval is for those plans date Apr1l 26, 1994, a copy of WhlCh shall be ma1nta1ned 1n the flies of the Plan- n1ng and Zoning Division. Project development shall be conslstent Wl th such plans, except as otherwise s p e c if i e d in these condlt1ons of approval. 2. The Plans shall comply w1th all other provlSlons of Chapter 1, Artlcle IX of the Municipal Code, (Zonlng Ordlnance) and all other perti~ent ordinances and General Plan pollcles of the Clty of San~a Monica. Architectural ReVlew Board 3. Prlor to approval of a BUSlness License, the applicant shall review disabled access requlrements wlth the Dlrector of Plannlng and Community Development and make any necessary changes in the proJect deslgn to achleve compllance wlth such requirements. If Archltectural Review Board review is requlred,the Archltectural Review Board, ln 1 ts review, shall pay particular at tentlon to the aesthet1c, landscaplng, and setback inpacts of any ramps, vertical changes at entrances and eXlts, retrofit of lever- type opening hardware or other features necessitated by access1b1lity requirements. - 24 - 4. Refuse areas, storage areas and mechanical equlpment shall screened in accordance with SrvIMC Section 9.04.10.02.130- 90.04.10.02.150. Refuse areas shall be of a Slze adequate to meet on- Sl te need, including recycling. The Archltectural ReVlew Board in its review shall pay partlcu- lar attentlon to the screenlng of such areas and equipment. Any rooftop mechanlcal equlpment shall be mlnlmlzed In height and area, and shall be located in such a way as to minimlze nOlse and visual impacts to surrounding propertles. Unless otherwise approved by the Archltectural Revlew Board, rooftop mechanlcal equlpment shall be located at least five feet from the edge of the roof. 5. Slgnage shall be subJect to approval of the Archltectural ReVlew Board EnVlronmental Mitlgatlon 6. Ultra-low flow plumbing fixtures are required on all new development and remodeling where plumbing is to be added. (Maximum 1.6 gallon tOllets and 1.0 gallon urlnals and low flow shower head.) Miscellaneous Conditions 7.. Street and/or alley llghtlng shall be provlded on publlC rights of way adJacent to the project if and as needed per the speclflcatlons and wlth the approval of the Department of General SerVlces. Valldity of Permlts 8. In the event permittee violates or fails to comply with any condltlons of approval of this permit, no further permlts, licenses, approvals or certlflcates of occupancy shall be issued untll such vlolatlon has been fully remedied. 9. Wlthln ten days of Planning and Zonlng D1V1Slon transmlttal of the approved Statement of Offlclal Actlon, proJect applicant shall slgn a~d return a copy of the Statement of Offlcial Action prepared by the Planning and Zoning Dlvlsion, agreelng to the Condltions of approval and acknowledglng that fallure to comply with such condltlons shall constltute grounds for potentlal revocatlon of the permit approval. By signing same, appllcant shall not thereby walve any legal rights appllcant may possess regardlng sald conditions. The slgned Statement shall be returned to the Plannlng and Zoning DivlSlon Fallure to comply wlth this condition may constltute grounds for potentlal permit revocation. 10. Wlthln thirty (30) days after flnal approval of the - 25 - proJect, a s~gn shall be posted on slte statlng the date and nature of the approval. The sign shall be posted in accordance with the Zoning Administrator guidel~nes and shall rema~n ln place untll a bus~ness l~cense is issued for the project. The sign shall be removed promptly when a business l~cense lS ~ssued for the proJect or upon explration of the Conditional Use Permit. 11. The operat~on shall at all t~mes be conducted ln a manner not detrimental to surrounding properties or residents by reason of l~ghts, nOlse, actlvltles, parklng, or other actlons. 12. Mechanical equipment shall not be located on the side of any bUlld~ng wh~ch lS adJacent to a residential building on the adj o~ning lot. Roof locatlons may be used when the mechanlcal equipment is installed within a soundrated parapet enclosure. 13. Final approval of any mechan~cal equipment installation will require a nOlse test in compliance w~th SMMC Sectlon 4.12.040. Equipment for the test shall be provided by the owner or contractor and the test shall be conducted by the owner or contractor. A copy of the noise test results on mechanical equipment shall be submltted to the Communlty NOlse Officer for review to ensure that nOlse levels do not exceed maximum allowable levels for the appl~cable nOlse zone. 14. Final bu~ld~ng plans submltted for approval of a building permit shall ~nclude on the plans a list of all permanent mechanical equipment to be placed outdoors and all permanent mechanical equipment to be placed indoors whlch may be heard outdoors. ALCOHOL OUTLET CONDITIONS 1 Condi tlons of thlS approval shall supersede all previous conditions of CUP 546 and CUP 90-074. The existing Type 20 license will expire on January 4, 1995 unless excerclsed by the applicant. If the rights granted under thlS approval are exerc~sed by the appllcant, the applicant shall surrender the Type 20 llcense if it has not otherwlse expired. 2. The wine tast~ng act~vlty shall only take place within a designated area on the ground floor, ~n order to lnsure compliance wlth prOV1Slons for the disabled, including those set forth in the Cal~fornla Admlnistrative Code, Tltle 24, Part 2 The ground floor w~ne tastlng plan shall be subJ ect to the approval of the Director of Planning pr~or to lssuance of a bus~ness llcense. - 26 - 3. Pr~or to operat~on of the w~ne tast~ng activity, the appl~cant shall comply w~th all requ~rements of the County Board of Health. 4. Activity in the wine tasting area is limited to serv~ng of Wlne beverages only No other alcohol~c beverage or incidental food may be served on the prem~ses. Educational classes shall be perm~tted ~n a deslgnated Wlne tasting area on the ground floor. Eat~ng of bread and/or cheese in conjunct~on w~th pre-purchase Wlne tast~ng or the educational classes shall be perm~tted. Pre-purchase wine tasting and educational classes shall be permltted in such portion of the downsta~rs, to ensure compl~ance with Title 24, subject to the approval of the Director of Planning. 5. The Santa Monica Police Department shall not be restricted in access to the area used for Wlne tasting. 6. W~ne tasting activity, ~n conJunct~on w~th reta~l sales of w~ne, shall take place only after 5: 00 pm, and no later than 10: 00 pm, Monday through Fr~day and during retail hours of 11 am to 6 pm Saturday and Sunday. 7. For pre-purchase w~ne-tast~ng, a maximum of three, one half ounce portions of w~ne may be served per person within a 24 hour period. Participants of pre-enrolled educat~onal classes may be served a maximum of e~ght (8), one-half ounce port~ons of wine per person within a twenty-four (24) hour per~od. 8. Educational wine classes shall be l~mited to a maximum of s~xteen (16) persons 9. Sales of spirits for on-slte consurrption shall not be permitted 10. The prunary uses of the premises shall rema~n as reta~l wine sales. The storage and display of splr~ts shall not exceed ten percent (10%) of the overall storage and d~splay area 11. Sales of spirits shall not exceed ten percent (10%) of gross sales Documentation showlng that gross sales of spirits dld not exceed 10% of gross sales shall be prov~ded to the Director of Plannlng upon request. Documentat~on showing that gross sales of splr~ts dld not exceed 10% of gross sales shall be provided to the Dlrector of Planning upon request. 12. A f~xed location for display of spirits shall be established and approved by the Director of Planning pr~or to approval of a bus~ness llcense. Minor amendments to the plans shall be subj ect to approval by the Director of - 27 - Plannlng. 13. There shall be a permanent barrler, Admlnlstrator approval, constructed Bakery retall space (tenant A) and space (tenant B) subJ ect to between the the proposed Zoning Odeon retall 14. No expanslon or lntensity of operation shall occur without prior approval from the Clty of Santa Monica and State ABC. 15. The operation shall at all times be conducted ln a manner not detrlmental to surroundlng propertles or reSldents by reason of llghts, nOlse, activates, parking, or other actions. 16. Prior to issuance of a buslness llcense, a securlty plan shall be submitted to the Chlef of Pollce for reVlew and approval The plan shall address both physical and operational securlty lssues. 17. Prlor to issuance of a business llcense, the operator shall submi t a plan for approval by the Director of Plannlng regardlng employee alcohol awareness tralning programs and policles. The plan shall outline a mandatory alcohol awareness tralnlng program for all employees havlng contact with the publlc and shall state management's pollcles addressing alcohol consumption and inebrlatlon. The operator shall provide City with an annual compllance report regardlng compllance with this condltlon. This proJect shall be subJect to any future Clty-wlde alcohol awareness training program condltlon affecting similar establlshments. The plan shall also set forth a ITdeslgnated drlverll program, which shall be offered by the operator of the establlshment to patrons. 18. No persons under 21 years 1n age shall be allowed ln the wine tasting area and slgns shall be posted to this effect. 19. Mlnor amendments to the plans shall be subJect to approval by the Director of Plannlng. An increase of more than 10% of the square footage or a signiflcant change in the approved concept shall be sub] ect to Planning Commisslon Review. Construction shall be ln substantial conformance with the plans submitted or as modified by the Plannlng Commlssion, Archltectural Review Board, or Director of Planning. No expansion in number of seats, intenslty of operation, or outdoor areas shall occur wlthout prlor approval from the Clty of Santa Monica and State ABC. 20. The owner shall prohibit lOlterlng 10 the parklng area and shall control nOlSY patrons leavlng the establishment. 21. No vldeo or other amusement games shall be permitted on the - 28 - prem1ses. 22. No dancing or live entertainment shall be permitted on the premises. 23. W1th1n thirty (30) days from date of the approval of the Statement of Off1c1al Act1on, the applicant shall prov1de a copy of the approved Statement of Off1c1al Act10n for th1S project to the local off1ce of the State Alcohol1C Beverage Control department. 24. Th1S permit shall expire one year from the of approval unless required ABC permits are ninety (90) day extension of the one year permitted If approved by the D1rector Applicant 1S on not1ce that an extens10n may 1f development standards relevant to the changed since project approval. effective date obtained. One period may be of Plann1ng. not be granted proJect have 25. Appl1cant 1S on notice that all temporary signage lS subJect to the restrict10ns of the C1ty slgn ordinance. Prepared by: Suzanne Frick, Director D. Kenyon Webster, Planning Manager Susan Healy Keene, Assistant Planner Planning & Zon1ng D1V1S1on Plann1ng and Commun1ty Development Department - 29 - Attachments: A. Appeal Statement of Councilmember Ken Genser dated 7/20/94 B Appeal Statement of applicant Robert picone dated 7/11/94 C. Appeal Statement of Stephanle Barbanell dated 7/20/94 D. Notice of Publlc Hearlng E. Radlus and Location Map F. Photographs of Slte and Surroundlng Propertles G. Plot Plan, and Floor Plans H. Planning Commission Statement of Offlcial Actlon for CUP 94- 008, dated 7/6/94 I. Plannlng Commission Staff Report for CUP 94-008 dated 7/6/94 J. Letter from Robert Picone to Suzanne Frick dated 8/29/94, which lncludes Robert Gorski, applicant's assessibility consultant's report, and parklng study by James Mathews K. E-Mail from Audrey Parker to Renee Cowhig dated 9/19/94 L. Report from Peter Robertson to Suzanne Frick dated 9/27/94 M. Plannlng Commission Statement of Offlclal Action for CUP 546, dated 11/2/88 N. City Councll Statement of Official Action for CUP 90 - 074, dated 3/12/91 O. Clty Council Statement of Offlclal Action for CUP 91-041 dated 6/2/92 P. Letter from Stephanie Barbanell to staff dated May 25, 1994 Q. Letter from Jonathan Horne, appllcant's attorney, to staff dated June 23, 1994 R. Facslmlle from Jo Ann Agullar, State ABC, to Susan Healy Keene, Assistant Planner,dated 7/6/94 S. Letter from Stephanie Barbanell to Kenyon Webster, Planning Manager,dated 9/26/94 T. Facslmlle from Stephanle Barbanell to Mary Strobel, Deputy Clty Attorney, dated 9/26/94 U Letter from Stephanle Barbanell to Mary Strobel, Deputy Clty Attorney, dated 9/28/94 V. Letter from Susan Healy Keene to Stephanle Barbanell, dated 9/28/94 W. Facslmlle from Stephanle Barbanell to Mary Strobel, Deputy Clty Attorney, dated 9/29/94 X. Two facslmiles from Stephanle Barbanell to Mary Strobel, Deputy Clty Attorney, dated 10/04/94 Y Facslmlle from Stephanle Barbanell to Suzanne Frlck, Plannlng Director, dated 10/04/94 Z. Facslmile from Stephanle Barbanell to John Jalili, City Manager, dated 10/05/94 AA. Facslmile from Jonathan Horne to Susan Healy Keene, dated 10/05/94 - 30 -