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January 17, 2023
ITEM TITLE
Zoning Administrator Appeal: US Super Gas, Inc. Conditional Use Permit for the Sale of Alcohol at 1495 Melrose Avenue
Report Number: 23-0017
Location: 1495 Melrose Avenue
Department: Development Services
Environmental Notice: The Project qualifies for a Class 1 Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act (“CEQA”) State Guidelines.
Recommended Action
Conduct a public hearing and adopt a resolution denying the appeal of US Super Gas, Inc. and affirming the Zoning Administrator’s decision denying Conditional Use Permit, CUP22-0023, for an off-site consumption alcohol license at 1495 Melrose Avenue, Chula Vista, CA 91911.
SUMMARY
On July 12, 2022, US Super Gas, Inc. (the “Applicant” and “Appellant”) submitted an application for a Conditional Use Permit (“CUP”) 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, Chula Vista, California (“Project Site”). The Project Site is zoned Neighborhood Commercial (CN), with a General Plan designation of Commercial Retail (CR).
Upon review of the CUP application, staff verified the California Department of Alcohol and Beverage Control (“ABC”) provided the Chula Vista Police Department (“CVPD”) with a letter dated May 17, 2022 (Attachment 2) stating there is an overconcentration of licenses in the Census Tract where the Project Site is located.
Further research confirmed that there are three (3) off-site consumption licenses and one (1) on-site consumption license issued by ABC within 500 feet of the Project Site.
Additionally, staff’s research determined that the Project Site had previously been denied an off -site consumption license, first on November 20, 2012 by the City Council (Attachment 3) and then again on February 15, 2019 by the Zoning Administrator (Attachment 4). Both denials were predicated on the issues of there being an overconcentration of ABC licenses in the immediate vicinity and a lack of support from the P a g e | 2
surrounding community. Staff notified the Appellant of these findings and indicated staff would recommend denial of the CUP application. Pursuant to Chula Vista Municipal Code (“CVMC”) Sections 19.34.030.B. (Conditional Uses) and 19.14.040 (Conditional Use Permits and Variance – Public Hearing Required When), the Applicant requested a public hearing with the Zoning Administrator.
On November 16, 2022, the Zoning Administrator held a public hearing on the Applicant’s CUP application.
At the 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, City staff received five letters, two of which had multiple signatories, related to the Project, and all were in opposition.
The Zoning Administrator c onsidered all reports, evidence, and testimony presented at the public hearing with respect to the subject CUP application, and under the provisions of Sections 19.14.030(A) of the CVMC, made the required findings pursuant to CVMC Section 19.14.08 to deny the CUP application on December 2, 2022.
On December 15, 2022, the Appellant filed an Appeal to the City Council (Attachment 5) citing the “Factual Error” and “Findings Not Supported” provisions of the Appeal Application. The Appeal specifically alleges the Zoning Administrator misinterpreted the ABC “ruling” related to the Census Tract designation (Factual Error), and that the Zoning Administrator contradicted himself when making the findings to deny the request (Findings Not Supported).
This item now presents the Project for City Council consideration and action. The denial at issue is for the CUP.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the Project for compliance with the California Environmental Quality Act (“CEQA”) a nd 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.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
On November 16, 2022, the Zoning Administrator held a public hearing on the Applicant’s CUP application.
On December 2, 2022, the Zoning Administrator denied the application for the CUP. The Notice of Decision of the Zoning Administrator’s decision is provided as Attachment 6.
DISCUSSION
The Project Site is located at 1495 Melrose Avenue on the northeast corner of the intersection of East Orange Avenue and Melrose Avenue. East Orange Avenue is a four -lane east -west collector roadway leading to Interstate 805 (“I-805”) while Melrose Avenue is a local two-lane road connecting the neighborhoods located north and south of East Orange Avenue (see Attachment 1). A commercial center is located on the northwest corner of the intersection with a Chevron gas station, a Seafood -City Supermarket, and other neighborhood serving establishments. Immediately adjacent to the Project Site on the northeast corner of the intersection P a g e | 3
is a smaller commercial strip of six retail establishments with a 7-Eleven at one end and Bobar Liquor at the other. South of East Orange Avenue is comprised of single-family residences.
The proposed Project would add the ability to sell distilled spirits and alcohol for off-site consumption from the existing single-story service station comprised of a 1,583 square foot convenience store and a service station canopy with eight (8) fuel pumps. The hours of operation of the service station 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. The project proposes to provide fifty-nine (59) square feet of floor area 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 permitting of the sale of alcohol is a joint effort between ABC, CVPD, and the Development Services Department. ABC is the issuing authority of the li cense and has many different criteria it looks at when deciding whether to issue a permit at a particular location including, but not limited to, the number of other establishments licensed to sell alcohol in the vicinity (concentration), the crime rate of the area, and the underlying zoning of the property. When an application for an alcohol sales license is submitted to ABC, as a matter of routine, ABC notifies CVPD and inquires as to any comments or conditions CVPD may want to place on the license based upon the location, history, and crime rate of the area. ABC also requires an applicant to contact Development Services to obtain any required local permits for the sale of alcohol at the site prior to issuing the license.
To determine the concentration of licenses in a given are a, ABC utilizes and publishes Census Tract (“CT”) data and has established a limit of one license per every 2,500 residents in a CT. If there is more than one license for every 2,500 residents in a CT, then the area is considered “o versaturated” or “unduly concentrated.” The Project Site is located in CT 133.06. The population of CT 133.06 is 4,425 which equates to two (2) alcohol licenses in the CT (4,425 divided by 2,500 = 1.77) . Currently, there are three (3) off-site consumption licenses and one (1) on-site consumption license issued by ABC within 500 feet of the Project Site.
The issue at hand in this appeal is ABC’s data and what was published on their public-facing website. The Appellant has claimed two causes of action in their Appeal: Factual Error and Findings Not Supported.
Factual Error
The Appellant claims the Zoning Administrator “misinterpreted the California Department of Alcoholic Beverage Controls (ABC) ruling related to the Census Tract designation.” Up until th e November 16, 2022 hearing in front of the Zoning Administrator, there was some confusion with the data ABC was reporting for CT 133.06 and the neighboring CT , 133.12. Generally speaking, CTs 133.06 and 133.12 are separated by I - 805 with CT 133.06 to the west and 133.12 to the east.
In their May 17, 2022 letter to CVPD, ABC clearly states the Project Site is in CT 133.06 and that there is an overconcentration of licenses in CT 133.06. The letter states two licenses are allowed and that 5 licenses exist in CT 133.06. The Appellant however presented evidence at the November 16 hearing seeming to contradict ABC’s own May 17 letter. The Appellant provided a screenshot of the ABC webpage reflecting only one license in CT 133.06 and four licenses in neighboring CT 133.12 (Attachment 7). The Appellant also provided a copy of a November 15, 2022 email exchange between the Appellant’s representative, Mr. Marco Polo Cortes, and Ms. Maritza Gonzalez of ABC’s San Diego District Office, whereby Ms. Gonzalez indicated t hat based upon P a g e | 4
ABC’s website data, CT 133.06 was purportedly “undersaturated” (Attachment 8). Based upon this evidence, the Appellant is claiming the Zoning Administrator misinterpreted ABC’s “ruling.”
However, on November 22, 2022, the Zoning Administrator independently verified that ABC’s website now reflects four licenses in CT 133.06 (Attachment 9). The three additional licenses had been moved from CT 133.12 as reflected on the Appellant’s screenshot and are now reflected properly in CT 133.06. Those three licenses were for the 7-Eleven, Bobar Liquor, and Seafood-City Supermarket, all located at the corner of East Orange Avenue and Melrose Avenue. Clearly the data proffered by the Appellant reflected a mistake in ABCs data that has since been rectified . Additionally, at the November 16 hearing, the Zoning Administrator pointedly asked the Appellant whether they disputed the addresses for the licenses attributed to CT 133.12 on their November 15 screenshot, were in fact physically located in CT 133.06. They did not dispute that fact and contended the Zoning Administrator should abide strictly by the number of licenses as reflected on their screenshot of ABC’s webpage and verified by email by Ms. Gonzalez and nothing more.
Ms. Gonzalez’s email to Mr. Cortes was not a “ruling” by ABC, but merely a confirmation of what ABC’s website reflected at that time. Ms. Gonzalez’s letter dated May 17, 2022, to CVPD clearly places the Project Site in CT 133.06 and reflects an overconcentration in that area. While there may have been some confusion as to the veracity of ABC’s publicly facing data prior to November 22, that has since been rectified. Additionally, looking solely at the addresses of the license locations reflected on Appellant’s November 15 screenshot , it is clear three of licenses are in fact located at the northeast and northwest corners of E ast Orange Avenue and Melrose Avenue in CT 133.06, not on the eastside of I-805 in CT 133.12.
Findings Not Supported
The Appeal further alleges the Zoning Administrator “contradicts himself when making findings to deny the requested CUP by citing ABC to support his decision and in turn ignores ABC’s statements of facts when it doesn’t suit his arguments.” It is assumed the “statements of facts” the Appellant is refe rring to are the November 15, 2022 ABC screenshot and the email between Ms. Gonzalez and Mr. Cortes stating CT 133.06 was undersaturated. As stated above, it is the contention of the Zoning Administrator and City staff that the November 15, 2022 email exchange was merely a confirmation of what was then incorrectly reflected on the ABC webpage. The May 17 letter from ABC to CVPD, the address locations of existing licenses, and the corrected information on ABC’s website all point to an overconcentration of al cohol licenses at the intersection of East Orange Avenue and Melrose Avenue. To hold otherwise would be to defend erroneous information and allow for a fifth license at the intersection while subverting the desire of the surrounding community.
Conclusion/Recommendation
The intersection of E ast Orange Avenue and Melrose Avenue currently has three existing off -site consumption licenses issued by ABC, and a fourth would add to the already overconcentration of CT 133.06.
Therefore, Staff recommends the City Council uphold the Zoning Administrator’s decision and deny the Appeal for the issuance of Conditional Use Permit, CUP22-0023.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City council members and has found no property holdings within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item P a g e | 5
does not present a disqualifying real property -related financial conflict of interest under California Code of Regulations Title 2, section 18705.2(a)(11), for purposes of the Political Reform Act (Cal. Gov’t Code §87100, et seq.).
Staff is not independently aware and has not been informed by any City council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
There is no current year fiscal impact to the General Fund or the Development Services Fund as a result of this action. The Appeal fee, application fees, and all processing costs are borne by the Applicant/Appellant.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact to the General Fund or the Development Services Fund as a result of this action.
ATTACHMENTS
1. Locator Map
2. ABC Letter to CVPD, dated May 17, 2022
3. City Council Resolution No. 2012-225, dated November 20, 2012
4. Zoning Administrator Notice of Decision, dated February 15, 2019
5. Appeal, dated December 16, 2022
6. Zoning Administrator Notice of Decision, dated December 2, 2022
7. Appellant’s Screenshot of ABC Webpage, dated November 15, 2022
8. Email Exchange Between Appellant and ABC, dated November 15, 2022
9. Zoning Administrator’s Screenshot of ABC Webpage, dated November 22, 2022
Staff Contact: D. Todd Philips, Planning Manager/Zoning Administrator, Development Services Laura C. Black, AICP, Director of Development Services