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March 7, 2023
ITEM TITLE
Zoning Administrator Appeal: US Super Gas, Inc. Conditional Use Permit for the Sale of Alcohol at 1495 Melrose Avenue
Report Number: 23-0064
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 one of the following resolutions:
Resolution A) Deny the appeal and adopt a resolution denying a Conditional Use Permit for an off -site consumption alcohol license (Type-21).
OR
Resolution B) Uphold the appeal and adopt a resolution granting the appeal of US Super Gas, Inc. and overturning the Zoning Administrator’s decision denying a Conditional Use Permit for an off -site consumption alcohol license (Type-21).
OR
Resolution C) Uphold the appe al and adopt a resolution granting the appeal of US Super Gas, Inc. and overturning the Zoning Administrator’s decision denying a Conditional Use Permit for an off -site consumption alcohol license (Type-20 – beer and wine only).
SUMMARY
On July 12, 2022, US Super Gas, Inc. (the “Applicant” and “Appellant”) submitted an application for a Conditional Use Permit for the sale of beer, wine, and distilled spirits for off -site consumption (Type-21 license) 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).
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Upon review of the C onditional Use Permit application, staff verified with the California Department of Alcohol and Beverage Control and the Chula Vista Police Department (“CVPD”) there was 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.
On November 16, 2022, the Zoning Administrator held a public hearing on the Applic ant’s Conditional Use Permit (“CUP”) application. The public hearing was attended by approximately 20 people, with three speaking in favor of issuing the CUP and nine speaking in opposition. The Zoning Administrator considered all reports, evidence, and te stimony presented at the public hearing with respect to the subject CUP application, and on December 2, 2022, made the required findings pursuant to Chula Vista Municipal Code (“CVMC”) Section 19.14.08 to deny the CUP. On December 15, 2022, the Appellant f iled an appeal of the Zoning Administrator’s decision, to the City Council, citing the “Factual Error” and “Findings Not Supported” provisions of the Appeal Application.
On January 17, 2023, the City Council held a hearing regarding the Appellant’s appea l and voted 3 -1-0 to affirm the appeal and approve the CUP. The staff report for the January 17, 2023 hearing and accompanying presentation are provided as Attachments 4 and 5, respectively. The City Council directed staff to return at a future council meeting with a Resolution reflecting the Council’s deliberations and decision.
After the January 17, 2023 Council meeting, staff reviewed and confirmed that the required notices to owners/occupants within a 500 foot radius for this item were not mailed. This appeal item is therefore again being presented for the City Council’s consideration. Three possible resolutions have been prepared for the Council’s adoption: Resolution A would deny the appeal and uphold the Zoning Administrator’s decision denying a Conditional Use Permit for a Type-21 license (beer, wine, and distilled spirits); Resolution B would uphold the appeal, overturn the Zoning Administrator’s decision, and approve a Conditional Use Permit for a Type-21 license (beer, wine, and distilled spirits), as requested by the applicant ; and Resolution C would uphold the appeal, overturn the Zoning Administrator’s decision, and approve a Conditional Use Permit for a Type-20 license (beer and wine only).
ENVIRONMENTAL REVIEW
The Director of Development S ervices has reviewed the Project for 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. The refore, 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 C onditional Use Permit application. On December 2, 2022, the Zoning Administrator denied the application for the Conditional Use Permit . The Notice of Decision of the Zoning Administrator’s decision is provided as Attachment 2.
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 P a g e | 3
Interstate 805 (“I-805”) while Melrose Avenue is a local two-lane road connecting the neighborhoods located north and south of Ea st Orange Avenue (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 is a smaller commercial strip of six retail establishments. South of East Orange Avenue is comprised of single- family residences.
The proposed Project would add the ability to sell beer, wine, and distilled spirits for off-site consumption (Type-21 license) 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 beer, wine, and distilled spirits, between the hours of 8:00 AM and midnight daily.
During the deliberations on January 17, 2023, the City Council expressed a desire to assist economic development and small business owners in the neighborhood as well to as provide opportunities for retail sales in the area. City Council then voted 3 -1-0 to affirm the appeal and directed staff to return with an appropriate resolution reflecting their deliberations and decision. Upon conclusion of the January 17, 2023 hearing, Development Services staff met with CVPD staff and discussed conditions of approval for the Conditional Use Permit. An alternative solution was also proposed, in which alcohol sales at the Project Site would be limited to beer and wine, but not extend to distilled spirits (Type-20 license). A resolution reflecting this alternative has also been prepared for the Council’s consideration.
The conditions of approval proposed by CVPD for both a Type-21 license and a Type 20-license are as follows, and are reflected in Section IV of Resolutions B and C.
1. Sales of alcoholic beverages shall be for beer, wine, and distilled spirits and comply with all requirements of the approved ABC license. (Note: Resolution C excludes reference to distilled spirits)
2. Sales of alcoholic beverages shall be permitted only between the hours of 8:00 AM and midnight daily.
3. No wine shall be sold with an alcohol content of greater than 17% by volume except for "Dinner Wines" which have been aged two years or more.
4. Wine shall not be sold in bottles or containers smaller than 750 ml.
5. No beer or malt beverage products shall be sold regardless of container size, by single containers, but must be sold in manufacturer pre-package multi-unit quantities.
6. No loitering shall be allowed near the entrance/exit of the business.
7. The Applicant shall police the area under their control in an effort to prevent loitering of persons about the premises.
8. The Applicant shall remove graffiti within 48 hours.
9. The Applicant shall be responsible for maintaining a litter free area in all areas under the petitioner(s) control.
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10. Signs must be posted at all exits, advising customers that loitering and open containers of alcohol are prohibited outside of the business and reminding them not to disturb the neighbors with noise.
11. No alcoholic beverages shall be displayed within five feet of the cash register or the front door unless it is in a permanently affixed cooler.
12. No advertisement of alcoholic beverages shall be displayed at motor fuel islands.
13. No display or sale of beer or wine shall be made from an ice tub.
Conditions of approval proposed by Development Services staff for both license types are as follows, and are reflected in Section IV of Resolutions B and C.
1. This permit is valid for operation of a gas station and associated convenience store with off-site sale of beer, wine, and distilled spirits, pursuant to CVMC 19.34.010.
2. The Applicant shall operate the Project in compliance with the Performance Standards, CVMC Chapters 19.66 and Performance Standards and Noise Control, Chapter 19.68.
3. Within 30 days of approval of this permit, the Applicant shall submit signage plans to the satisfaction of the Development Services Department to determine if the Project signage complies with the Sign Ordinance (CVMC Chapter 19.60) and CN Zone (CVMC Section 19.34.010). If this review shows the existing signage is not in compliance, the applicant shall apply to the Development Services Department for sign permits to modify the Project signage. Information regarding the type, size and location of all signs must be included in the plans. Any un-permitted signage must be removed within 30 days. Signs advertising specific products, or services or uses that are not permitted in the CN Zone or Sign Ordinance, shall not be permitted.
4. The parking lot of the premises shall be equipped with lighting of sufficient power to illuminate and make easily discernible the appearance and conduct of all persons on or about the parking lot.
Additionally, the position of such lighting shall not disturb the normal privacy and use of any neighboring residences.
5. There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition.
6. The Applicant shall operate the business in compliance with CVMC Chapter 9.17: Drug Paraphernalia- Prohibited, and CVMC Chapter 5.37: Narcotic or Drug Paraphernalia Shops.
7. Pursuant to CVMC Section 19.34.180, each year prior to issuance or renewal of the business license, the Applicant shall present evidence to the satisfaction of the Director of Development Services showing compliance with CVMC Section s 19.34.090 and 19.34.120, including that the Project is continuing to operate in compliance with the permitted uses and other requirements described in the CN zone.
8. Exterior site lighting shall be provided to enhance safety and visibility. Light fixtures shall be shielded to confine light within the site and prevent glare into adjacent properties, in compliance with CVMC Section 19.66.100.
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9. Within 60 days of approval of this permit, the existing landscaping shall be refreshed, including replacement of dead and missing plants, and maintenance and repair of the irrigation system.
10. The Applicant shall ensure that the landscaping is watered and well -maintained and the site is kept clean of trash and debris.
11. Within 60 days of approval of this permit, the Applicant s hall repair or replace any damaged curb, gutter and sidewalk, and if required, obtain an encroachment permit prior to commencement of the work.
12. Within 60 days of approval of this permit, the parking lot pavement shall be repaired or resurfaced, and parking spaces, including the accessible space and accessible loading zone, shall be cleared of any obstructions and re-striped per the approved site plan.
13. If a formal complaint is received by the Director of Development Services, or if the Director determines that the Applicant is not operating in compliance with the conditions of approval of this permit, then the Director has the discretion to initiate an investigation which may include requesting the applicant to submit plans, technical studies, or other inf ormation deemed necessary to respond to the complaint or non -compliance issue. After review, the Director has the discretion to either maintain the existing CUP, modify the CUP, or revoke the CUP, pursuant to the requirements of CVMC Section 19.14.270.
14. Prior to approval of any request for an amendment of the approved ABC license or this CUP, the Applicant shall submit and obtain approval of an application requesting a substantial conformance review or modification of this CUP, for consideration by the Dire ctor of Development Services and the CVPD.
15. Approval of this Project shall not waive compliance with all sections of Title 19 of the CVMC, including the Sign Ordinance, and all other applicable City Ordinances in effect at the time of the approval of this CUP.
16. This permit shall become void if not used or extended within three years of the effective date thereof (March 7, 2026) in accordance with Section 19.14.260 of the CVMC. Failure to comply with the any conditions of approval shall cause this permit to be reviewed by the City for additional conditions or revocation.
Subsequent to the public hearing on January 17, 2023, Development Services staff reviewed and confirmed that mailed notices did not go out prior to the January 17, 2023 hearing , as required by CVMC Section
19.12.070(B). Staff asserts that this item has been noticed for the March 7, 2023 City Council meeting in accordance with CVMC Section 19.12.070(B), including mailed notices.
Conclusion
The City Council has the option to adopt one of the three resolutions provided with this item. Adopting Resolution A would deny the appeal, uphold the Zoning Administrator’s decision, and deny the Conditional Use Permit. Adopting Resolution B would uphold the appeal, overturn the Zoning Administrator’s decision, and approve a Conditional Use Permit for a Type -21 license (beer, wine, and distilled spirits). Adopting Resolution C would uphold the appeal , overturn the Zoning Administrator’s decision, and approve a Conditional Use Permit for a Type-20 license (beer and wine only).
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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 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
Should a Conditional Use Permit be approved, it is expected the General Fund would receive additional sales tax revenue related to the sale of alcohol (or beer and wine only) at the site. The amount of additional sales tax to be received is not known at this time, however it is anticipated to be negligible to the overall City sales tax collected. There are no current-year fiscal impacts to 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. Zoning Administrator Notice of Decision, dated December 2, 2022
3. Appeal, dated December 16, 2022
4. January 17, 2023 public hearing, staff report
5. January 17, 2023 public hearing, presentation
Staff Contact: D. Todd Philips, Planning Manager/Zoning Administrator, Development Services Laura C. Black, AICP, Director of Development Services