ZONING ADMINISTRATOR
NOTICE OF DECISION
Date: December 2, 2022
Applicant: US Super Gas, Inc.
Case Number: CUP22-0023
Address: 1495 Melrose Avenue
Project Planner: Amy DeNinno
Notice is hereby given that on December 2, 2022, the Zoning Administrator considered Conditional Use Permit (CUP) CUP22-0023, filed by US Super Gas, Inc. (Applicant). The Applicant requests approval for the sale of beer, wine, and distilled spirits for off-site consumption at an existing service station, known as US Super Gas and Mini-Mart (Project), located at 1495 Melrose Avenue (Project Site). The Project Site is zoned Neighborhood Commercial (CN), with a General Plan designation of Commercial Retail (CR).
Pursuant to Chula Vista Municipal Code (CVMC) Sections 19.34.030(F) and 19.58.430, alcohol sales are conditionally permitted within the CN zone. The Project Site includes a single-story convenience store with a floor area of 1,538 square feet, as well as a service station canopy with eight (8) fuel pumps. The hours of operation are from 8:00 AM to 12:00 AM (midnight) seven (7) days a week, with a maximum of three (3) employees at any one time. Fifty-nine square feet of floor area are proposed to be utilized for the sale of distilled spirits and alcohol, between the hours of 8:00 AM and 11:00 PM each day.
The Director of Development Services has reviewed the Project f or compliance with the California Environmental Quality Act (CEQA) and determined that the Project qualifies for a Class 1 Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines. Therefore, no further environmental review is required.
The Zoning Administrator set the time and place for a hearing on said CUP and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City and its mailing to property owners and residents within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing.
The hearing was scheduled, advertised and held on November 16, 2022, at 3:00 p.m. in Executive Conference Room 103, Chula Vista City Hall Building A, 276 Fourth Avenue, before the Zoning Administrator.
The Zoning Administrator considered all reports, evidence, and testim ony presented at the November 16 Public Hearing and contained within the City’s files and records for the Project Site with respect to the subject Project application, and under the provisions of Sections 19.14.030(A) and 19.58.430 of the CVMC, and based on substantial evidence, makes the following findings as required by CVMC Section 19.14.080:
The proposed use at this location is necessary or desirable and will contribute to the general well-being of the neighborhood or the community.
Notice of Decision
CUP22-0023
December 2, 2022
2 According to the California Department of Alcohol and Beverage Control (ABC), an “undue concentration” [overconcentration] of liquor licenses exists when “the ratio of off- sale retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of off-sale retail licenses to population in the county in which the applicant premises is located.” (California Alcoholic Beverage Control Act , Section 23958.4(a)(3), pg. 249).
In discussions with ABC representatives, the City verified that ABC sets the threshold for off-sale licenses to be issued at a rate of “one for each 2,500, or fraction thereof, inhabitants of the county in which the premises are situated” (Ibid, Section 23817.5 (a)(1), pg. 227).
According to Census Reporter’s website (www.censusreporter.org), the 2020 Census data shows a population of 4,425 for Census Tract (CT) 133.06. Therefore, applying the ABC ratio threshold, CT 133.06 should be limited to two licenses (4,425 divided by 2,500 =
1.77).
As discussed below, based on these ABC standards, substantial evidence supports a finding that CT 133.06 has an overconcentration of active off -sale retail alcohol licenses and businesses.
During the November 16 Public Hearing, testimony from the Applicant’s representative, Marco Polo Cortes, indicated that pursuant to ABC’s website data, there is only one alcohol permit issued within CT 1033.06, where the Project Site is located. The Applicant furthered this argument by submitting a November 15, 2022 email exchange between Mr. Cortes and Ms. Maritza Gonzalez of ABC ’s San Diego District Office, whereby Ms. Gonzalez indicated that based upon ABC’s website data, CT 133.06 was purportedly “undersaturated”. Based upon this , and other testimony offered, the Applicant feels the City of Chula Vista should grant the CUP.
Among the data submitted by the Applicant were two November 15, 2022 Ad Hoc License Reports for CTs 133.06 (Attachment 1) and 133.12 (Attachment 2). The data reflects the following licenses supposedly issued in CT 133.12:
Seafood City Supermarket
285 E. Orange Ave.
Chula Vista, 91911
ABC Lic.: 484426
7 Eleven Store 13578E
1475 Melrose Ave.
Chula Vista, 91911
ABC Lic.: 555599
Bobar Liquor #44
1459 Melrose Ave.
Chula Vista, 91911
ABC Lic.: 584822
Otay Valley Shell
4555 Main St.
Chula Vista, 91911
ABC Lic.: 566960
The City is not required , however, to accept as true data or information from the ABC (through Applicant) that the City, after investigation and analysis, has determined is demonstrably inaccurate. Of the above-listed license locations submitted by Applicant , only one is actually located within CT 133.12, and that is Otay Valley Shell. All three of the other licenses are actually located in CT 133.06. As a clarifying question during the Notice of Decision
CUP22-0023
December 2, 2022
3 November 16 Public Hearing, the Zoning Administrator asked Mr. Cortes if it was in dispute whether the locations of the three licenses listed on Attachment 2 were actually (by their addresses) located in CT 133.06. Mr. Cortes’s response was the data put into evidence is ABC’s publicly published data and the City should abide by it.
Also, at the November 16 hearing on the CUP, City Project Planner Amy DeNinno provided information and documents, including address data from the ABC website for the off-sale licen sees identified in CT 133.12 and transposed those addresses onto a map showing that the four active off-sale retail alcohol licenses currently operate in CT 133.06. (Attachment 3).
To attempt to verify the data proffered by Mr. Cortes, on Tuesday, November 22, 2022, the Zoning Administrator pulled an Ad Hoc License Report (Attachment 4) from the ABC website for CT 133.06 and the data seems to have been corrected as the off-sale retail alcohol licenses erroneously attributed to CT 133.12 in the Applicant’s information are now listed within the correct CT, 133.06. It was as obvious on November 15 as it was on November 22 that ABC had mis-categorized three licenses into the wrong CT. To uphold the Applicant’s assertion would require the City to disregard the addresses , and common sense, and abide by the clear errancy in ABC’s data submitted by the Applicant. The argument that an additional off -site license is necessary is spurious at best due to the existence of at least three other licenses in the direct vicinity of the Project Site.
Therefore, with the data issue rectified, the issue turns from one of necessity to the interests of the community and the desirability of this kind of use. The purpose of the Neighborhood Commercial Zone is to provide a shopping center for convenience shopping in a residential neighborhood setting where analysis of the residential population demonstrates that such facilities are “necessary” and “desirable”. Because th e neighborhood is predominantly residential, members of the community contend a fourth liquor license is not desirable and does not contribute to the general well -being of the predominantly residential neighborhood.
At the November 16 Public Hearing, nine members of the public spoke against the granting of the license. Several other individuals were present but chose not to make public remarks.
Most of the public comments related to the issues of public safety and overconcentration.
Outside of the Applicant and their representatives, no one spoke on behalf of the license being granted. In addition, as the date of this decision, City staff have received five letters, two of which had multiple signatories, related to this Project, and all were in opposition.
From the public testimony, input and feedback received on the CUP application, it is clear this license is not desired in the community.
Further, a dditional alcohol sales have the potential to negatively affect the residential nature of a neighborhood by drawing a greater transient population and attendant crime.
Multiple area residents or business owners testified at the November 16 hearing that there had been a number of incidents of persons stealing alcohol at the current off-sale retail alcohol businesses in CT 133.06. But, due to changes in State laws regarding reducing the severity of consequences for crimes by minors and involving crimes regarding merchandise amounts below a certain value threshold, the residents or business owners said that the Notice of Decision
CUP22-0023
December 2, 2022
4 stealing of alcohol is typically not reported. Therefore, an additional off-site retail license is not necessary nor desirable as it will not contribute to the general well -being of this community, and it would increase the existing overconcentration of off-site licenses.
Based on the above, the Zoning Administrator hereby finds that the proposed use at this location is not necessary nor desirable to provide a service that will contribute to the general well-being of this community.
Such use will not, under the circumstances of the particular case, be detrimental to the health, safety , or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity.
Based on testimony at the Public Hearing of November 16, 2022, by persons residing and working near the Project Site, an additional business selling alcohol in this area will negatively affect their quality of life and their he alth, safety, and general welfare by potentially increasing crime (as discussed above), traffic problems, and nuisance activities.
No testimony nor data was provided by the Applicant making a counter argument that the granting of the license would somehow contribute to the health, safety, or general welfare of the community.
By t he ABC ’s metrics, the proposed use would be detrimental to the surrounding community based on the population density of CT 133.06 using a ratio of one off-premises general license for each 2,500 persons in a census tract. Four (4) active retail licenses exist, while two (2) are allowed based on the aforementioned ratio. An additional license at the Project Site would exacerbate an existing overconcentration of alcoholic beverage licenses within the census tract. It is worth noting that a separate CUP application for alcohol sales is pending at 1498 Melrose Avenue, directly across the street from the Project Site.
Based on the above, the Zoning Administrator hereby finds that granting the proposed use would be detrimental to the health, safety and general welfare of persons residing in the vicinity.
The use will comply with the regulations and conditions specified in the code for such use.
The approval of the CUP permitting alcohol sales at the Project Site is inconsistent with the standards and parameters established in both the California Alcoholic Beverage Control Act as well as in CVMC 19.58.430. Under this section, overconcentration may be found to exist based on (A) the number and location of existing facilities and (B) compliance with ABC overconcentration standards in effect at the time of project consideration. There are currently four (4) active off-site licenses located within Census Tract 133.06, where only two (2) are authorized by ABC.
Based on the above, the Zoning Administrator hereby finds that the proposed use will not comply with the regulations and conditions specified in the CVMC for such use.
Notice of Decision
CUP22-0023
December 2, 2022
5 Granting of this conditional use will not adversely affect the General Plan of the City or the adopted plan of any governmental agency.
The proposed alcohol sales use is permitted with approval of a CUP in the CN Zone; however, pursuant to C VMC Section 19.14.080, if any one of the above factors are not met, then the subject CUP cannot be approved. Because findings cannot be made to support the previous three factors, the CUP cannot be approved.
Based on the above, the Zoning Administrator hereby finds that this factor is not applicable due to the failure of the use to comply with the previously cited regulations set forth in the CVMC.
The proposed conditional use, if located in the coastal zone, is consistent with the certified local coastal program and is consistent with the intent of the zoning district.
The proposed Project Site is not within the coastal zone, and therefore, this factor is not applicable.
BASED ON THE FINDINGS ABOVE AND PURSUANT TO CVMC SECTION S 19.14.080 and
19.58.430, THE ZONING ADMINISTRATOR hereby denies Conditional Use Permit CUP22 -0023 as described above.
DENIED BY THE ZONING ADMINISTRATOR OF THE CI TY OF CHULA VISTA, CALIFORNIA, this 2nd day of December 2022.
______________________________________
D. Todd Philips
Zoning Administrator
Attachments:
1. Applicant’s ABC Ad Hoc License Report for Census Tract 133.06 dated November 15, 2022
2. Applicant’s ABC Ad Hoc License Report for Census Tract 133.12 dated November 15, 2022
3. City’s Map of Off-Sale Licenses in Census Tract 133.06
4. Zoning Administrator’s ABC Ad Hoc License Report for Census Tract 133.06 dated November 22, 2022