TO: HONORABLE MAYOR FROM: Planning Commission
AND CITY COUNCIL
SUBJECT: SEE BELOW DATE: July 17, 2023
COUNCIL DISTRICT: 5
SUBJECT: FILE NO. CP23-002, CONDITIONAL USE PERMIT AND
DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY TO
ALLOW THE OFF-SALE OF ALCOHOL (TYPE 21 – FULL RANGE OF
ALCOHOLIC BEVERAGES) AT AN EXISTING APPROXIMATELY
125,824-SQUARE FOOT RETAIL STORE (TARGET) ON AN
APPROXIMATELY 10.77-GROSS-ACRE SITE LOCATED ON THE
SOUTHEAST CORNER OF STORY ROAD AND SOUTH KING ROAD
(1750 STORY ROAD)
RECOMMENDATION
On July 12, 2023, the Planning Commission voted 10-0-1 (Casey absent) to recommend that the City Council take all of the following actions:
1. Consider the exemption in accordance with the California Environmental Quality Act (CEQA) Guidelines Section 15301(a): Class 1, for Existing Facilities.
2. Adopt a resolution approving, subject to conditions, a Conditional Use Permit and Determination of Public Convenience or Necessity to allow the off-sale of alcohol (Type 21 – Full Range of Alcoholic Beverages) at an approximately 125,824-square foot retail store (Target) on an approximately 10.77-gross-acre site.
SUMMARY AND OUTCOME
If the City Council approves the actions listed above as recommended by the Planning Commission, the applicant will be able sell a full range of alcoholic beverages for off-site consumption in conjunction with a Type 21 ABC License at an existing 125,824-square foot retail store (Target) on an approximately 10.77-gross acre site.
COUNCIL AGENDA: 08/08/23
FILE: 23-998
ITEM: 10.1a
HONORABLE MAYOR AND CITY COUNCIL
July 17, 2023
Subject: CP23-002
BACKGROUND
On July 12, 2023, the Planning Commission held a Public Hearing to consider the CEQA exemption, Conditional Use Permit, and Determination of Public Convenience or Necessity. This item remained on the Planning Commission’s Consent Calendar. Commissioner Lardinois made a motion to approve the recommendation. Commissioner Tordillos seconded the motion. The motion passed unanimously 10-0-1 (Casey absent). The Planning Commission recommended that the City Council approve the Conditional Use Permit and Determination of Public Convenience or Necessity
ANALYSIS
Analysis of the proposed CEQA clearance, Determination of Public Convenience or Necessity, and Conditional Use Permit including conformance with the General Plan, Municipal Code, and City Council Policies is contained in the attached staff report.
EVALUATION AND FOLLOW-UP
Should the City Council approve the Conditional Use Permit and Determination of Public Convenience or Necessity, the applicant would be allowed to sell a full range of alcoholic beverages for off-site consumption in conjunction with a Type 21 ABC License at an existing 125,824-square-foot retail store (Target) on an approximately 10.77-gross acre site located at 1750 Story Road. The applicant could proceed to the California Department of Alcoholic Beverage Control (ABC) with an application for a Type 21 License.
COORDINATION
Preparation of this memorandum has been coordinated with the San Jose Police Department and the City Attorney’s Office.
PUBLIC OUTREACH
Staff followed Council Policy 6-30: Public Outreach Policy, whereby the project is considered a standard development proposal. Following City Council Policy 6-30, the applicant posted the on- site sign to inform the neighborhood of the proposed project. A notice of the public hearing was distributed to the owners and tenants of all properties located within 500 feet of the project site and posted on the City website. The staff report is also posted on the City’s website. Staff has also been available to respond to questions from the public, although no comments have been received. This memorandum will be posted on the City’s Council Agenda website for the August 8, 2023 City Council meeting.
HONORABLE MAYOR AND CITY COUNCIL
July 17, 2023
Subject: CP23-002
COMMISSION RECOMMENDATION AND INPUT
The item was heard at the July 12, 2023 Planning Commission meeting, on the Consent Items portion of the agenda. The motion to recommend City Council approval of the project passed (10-0-1). Commissioner Casey was absent. No members of the public requested to speak on this item. Commissioner Tordillos asked whether staff had evaluated the population density of the project site census tract for Determination of Public Convenience or Necessity 5.c. Staff responded that had not been analyzed but the finding is not required because findings 5.b and 5.d can be made. Commissioner Tordillos also pointed out a typographical error in the draft resolution. There was no other discussion by commissioners.
Commissioner Lardinois made a motion to approve the recommendation. Commissioner Tordillos seconded the motion. The motion passed unanimously 10-0-1 (Casey absent). The Planning Commission recommended that the City Council approve the Conditional Use Permit and Determination of Public Convenience or Necessity.
CEQA
Under the provisions of Section 15301(a) for Existing Facilities of the State Guidelines for Implementation of the California Environmental Quality Act (CEQA) as stated below, this project is found to be exempt from the environmental review requirements of Title 21 of the San José Municipal Zoning Code, implementing the California Environmental Quality Act of 1970, as amended.
Class 1 Categorical Exemption consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or priva te structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The key consideration is whether the project involves negligible or no expansion of an existing use. The project does not involve any modifications or expansion to the footprint of the existing retail building.
The project would allow off-sale alcohol at a retail store. The project would include interior modifications to allow for the display of alcoholic beverages. The retail use of off-sale alcoholic beverages will be conducted wholly inside the building. Based on the discussion and findings in the above sections, the activity is not anticipated to have a significant effect on the environment.
Therefore, a CEQA exemption can be issued under Section 15301(a) for Existing Facilities.
PUBLIC SUBSIDY REPORTING
This item does not include a public subsidy as defined in section 53083 or 53083.1 of the California Government Code or the City’s Open Government Resolution.
HONORABLE MAYOR AND CITY COUNCIL
July 17, 2023
Subject: CP23-002
/s/
CHRISTOPHER BURTON
Secretary, Planning Commission
For questions, please contact Deputy Director for Planning, Robert Manford, at [email protected]
or (408) 535-7900.
ATTACHMENT: Planning Commission Staff Report
PLANNING COMMISSION AGENDA: 06-28-23
ITEM: xxx
TO: PLANNING COMMISSION FROM: Christopher Burton
SUBJECT: CP23-002 & ER23-011 DATE: 06/28/23
___ ___________
COUNCIL DISTRICT: 5
Type of Permit Conditional Use Permit and Determination of Public Convenience and Necessity
Demolition None
Proposed Land Uses Alcohol, off-sale (ABC Type 21 License) New Residential Units None
New Square Footage None
Tree Removals None
Project Planner Kora McNaughton
CEQA Clearance Exemption per CEQA Guidelines Section 15301(a): Class 1, for Existing Facilities
CEQA Planner Kora McNaughton
RECOMMENDATION
Staff recommends that the Planning Commission recommend that City Council:
1. Consider the exemption in accordance with the California Environmental Quality Act (CEQA) Guidelines Section 15301(a): Class 1, for Existing Facilities;
2. Adopt a resolution approving, subject to conditions, a Conditional Use Permit and Determination of Public Convenience or Necessity to allow the off-sale of alcohol (Type 21 – Full Range of Alcoholic Beverages) at an approximately 125,824-square foot retail store (Target) on an approximately
10.77-gross-acre site.
PROPERTY INFORMATION
Location Southeast corner of Story Road and South King Road (1750 Story Road) Assessor Parcel No. 486-11-049 and 486-11-050
General Plan Neighborhood/Community Commercial
Growth Area Story Road Employment Area
Zoning CN Commercial Neighborhood
Historic Resource Not Applicable
Annexation Date January 2, 1957 and October 23, 1959 (Hillview No. 6 and Hillview No. 23)
Council District 5
Acreage 10.77 gross acres
Proposed Density Not Applicable
Attachment
File No. CP23-002
PROJECT BACKGROUND
As shown on the Vicinity Map/Aerial (E xhibit A), the project site is located within the Plaza de San José shopping center on the southeast corner of Story Road and South King Road. The shopping center includes the 125,824-square-foot Target store at 1750 Story Road (the Store), which has been in operation since 2005, and five other commercial buildings. Shopping center tenants are served by an approximately 581-space surface parking lot.
The subject site is accessed by vehicles through an ingress/egress driveway on Story Road and an ingress/egress driveway on South King Road. Pedestrians can enter the site from sidewalks on both street frontages. Surrounding uses include single-family houses to the east; a middle school and single- family houses to the south; the same middle school and commercial buildings with surface parking to the west; and commercial buildings with surface parking to the north.
On January 24, 2023, an application was filed by Beth Aboulafia of Hinman & Carmichael LLP, on behalf of the owner, Target Corporation, for a Conditional Use Permit and a Determination of Public Convenience or Necessity to allow for the sale of a full range of alcoholic beverages (Department of Alcoholic Beverage Control Type 21 License) for off-site consumption within Target’s approximately 125,824-square-foot store on an approximately 10.77-gross-acre site.
Off-sale alcohol sales would be incidental to the retail store, which is a permitted use in the CN Commercial Neighborhood Zoning District with the issuance of a Conditional Use Permit.
Approximately 1,000 square feet of the 79,974-square-foot sales floor would be dedicated to alcoholic beverage sales (approximately 1.25% of the total sales floor area; this area is highlighted in red in Exhibit B, Floor Plan). Off-sale of alcohol would be permitted from 8:00 a.m. to 11:00 p.m. seven days a week (although the Store’s regular hours are currently 8:00 a.m. to 10:00 p.m.) except that the Store will be permitted to sell off-sale alcohol from 7:00 a.m. to 12:00 a.m. during its extended holiday hours (see Exhibit G, Operations Plan).
The subject site is located within what is classified as an over-concentrated census tract (Census Tract 5035.04) because of crime statistics. Pursuant to California Business and Professions (B&P) Code Section 23958.4, the reported crime statistics as defined in that section are over the 20% crime index for the census tract and the location is considered unduly concentrated. Therefore, a Determination of Public Convenience or Necessity is also required to be issued to process the Conditional Use Permit application.
SURROUNDING USES
General Plan Zoning District Existing Use
North Neighborhood/Community
C
ommercial
Commercial Pedestrian and
Commercial Neighborhood Commercial retail
South Residential Neighborhood,
P
ublic/Quasi-Public
Public/Quasi-Public and R-2
Two Family Residence
Middle school,
single-family houses
East Residential Neighborhood R -1-8 Single-Family
Residence Single-family houses
West Neighborhood/Community
C
ommercial
Public/Quasi-Public and
Commercial Pedestrian
Middle school,
commercial retail
File No. CP23-002
As stated in the attached Police Department memo (Exhibit H), dated June 6, 2023, the census tract is not overconcentrated in regard to the number of off-sale licenses. Two off-sale establishments are authorized in the census tract, per the California Department of Alcoholic Beverage Control (ABC).
There is currently one off-sale establishment operating within the census tract and the Store will be the second. The Police Department is neutral to the issuance of a Conditional Use Permit and Determination of Public Convenience or Necessity for off-sale alcohol at the project site subject to the following conditions:
a. Sales of alcoholic beverages are permitted only between the hours of 8:00 a.m. and 11:00 p.m. seven days a week, except during holiday hours where sales shall be permitted between 7:00 a.m. and 12:00 a.m. seven days a week.
b. No individual containers of beer or malt beverage products shall be sold, regardless of container size, unless the containers are in manufactured pre-packaged, multi-unit quantities.
This restriction applies to any beer that is not sold or marketed by the manufacturer in a multi- unit quantity.
c. No wine shall be sold with an alcohol content of greater than 15% by volume.
The site is adjacent to KIPP Heartwood Academy, a middle school, to the south and a neighborhood zoned for single-family and two-family residential uses to the west and south. The Store offers a range of products including groceries, and sales of alcoholic beverages would be incidental to general operations and would occupy approximately 1.25% of the total sales floor area.
Based on the Operations Plan provided, the number of staff members working at the Store varies from 140 to 180 per shift, including security personnel who monitor the store and parking lot. All cashiers are trained in proper alcoholic beverage sales rules, including point-of-sale required identification age verification and mandated training by ABC. The Store is also equipped with a video surveillance system.
The Conditional Use Permit Resolution (Exhibit I) includes conditions to address issues related to site security, employee training, trash, litter, graffiti, site maintenance, loitering and panhandling, lighting and windows, and noise.
ANALYSIS
The proposed Conditional Use Permit is analyzed with respect to conformance with:
1. Envision San José 2040 General Plan
2. Zoning Ordinance
3. Permit Findings
4. California Environmental Quality Act (CEQA)
5. Public Outreach
Envision San José 2040 General Plan Conformance
Land Use Designation
As shown in the General Plan Land Use Designation Map (Exhibit C), the proposed project site has an Envision San José 2040 General Plan
Land Use/Transportation Diagram designation of
Neighborhood/Community Commercial. This designation supports a very broad range of commercial activity, including commercial uses that serve surrounding communities, such as neighborhood-serving retail and services and commercial/professional office development. Neighborhood/Community File No. CP23-002
Commercial uses typically have a strong connection to and provide services and amenities for the nearby community and should be designed to promote that connection with an appropriate urban form that supports walking, transit use and public interaction. General office uses, hospitals and private community gathering facilities are also allowed in this designation. The project site is also located within the Story Road Employment Area.
Analysis: The off-sale of alcohol is a commercial use that is consistent with the commercial General Plan land use designation and will not negatively affect the number of jobs generated on the subject site.
General Plan Policies
The project is consistent with the following General Plan policies:
Land Use and Employment Policy IE-2.6: Promote retail development to the maximum extent feasible, consistent with other General Plan goals and policies, in order to generate City revenue, create jobs, improve customer convenience, and enhance neighborhood livability.
Land Use Policy LU-5. 10: In the review of new locations for the off-sale of alcohol, give preference to establishments that offer a full range of food choices including fresh fruit, vegetables, and meat.
Analysis: The project consists of allowing off-sale alcohol at an existing Target store and is consistent with the commercial uses allowed in the Neighborhood/Community Commercial General Plan land use designation. The intersection of Story Road and South King Road is a retail hub for surrounding residential communities with various options for groceries including Cardenas Market, Tropicana Market, Smart & Final, and Target. The Conditional Use Permit and Determination of Public Convenience or Necessity would provide a convenience to Target customers by enabling them to purchase alcoholic beverages along with a range of grocery items such as fresh produce and meat.
Alcoholic beverages would be incidental to the Store’s overall inventory, occupying approximately
1.25% of the sales floor area.
Zoning Ordinance Conformance
Land Uses
The subject site is located within the CN Commercial Neighborhood Zoning District (see Exhibit D, Zoning Map). The Zoning Code describes the CN Commercial Neighborhood District as a district intended to provide for “neighborhood -serving commercial uses without an emphasis on pedestrian orientation except within the context of a single development.” The existing Target store serves the neighborhood by offering a range of merchandise and grocery items, consistent with the zoning regulations. Pursuant to SJMC Section 20.40.100 (Table 20-90), the Store is required to obtain a Conditional Use Permit and Determination of Public Convenience or Necessity, as well as a California ABC Type 21 license, for the sale of alcoholic beverages for off-site consumption.
Development S
tandards
As the project does not include modifications to the exterior of the Store, it is in conformance with all setback and height requirements of the CN Neighborhood Commercial Zoning District as listed in SJMC Section 20.40.200
. As previously discussed, the approximately 125,824-square foot retail store is an existing building and the Store is already in operation. The setbacks and height would not be altered by this Conditional Use Permit, which does not include approval of any structural changes, exterior improvements, signage, or other uses.
File No. CP23-002
Table 20-100, CN Zoning District Development Standards
Development Standard Required Existing
Front setback (minimum) 10 feet 490 feet
Side, interior setback (minimum) None 10 feet
Rear, interior setback (minimum) None 64 feet
Height (maximum) 50 feet 43 feet
Parking
The project conforms with the parking requirements of Chapter 20.90 of the Zoning Code and does not increase or decrease the number of required spaces. There are no exterior changes to the existing Target store. Pursuant to Site Development Permit H04-021 for construction of the shopping center, approved in July 2004, the Store requires 428 vehicle parking spaces. The project provided 581 vehicle parking spaces at the time of the 2004 approval. A Conditional Use Permit for off-sale alcohol does not trigger additional parking requirements over the primary retail use.
Noise
The project is required to conform with the performance standards for noise, pursuant to Section
20.40.600 o f the Zoning Ordinance. The maximum allowed decibel level for a commercial use adjacent to a residential use is 55 decibels and the maximum allowed for a commercial use adjacent to a non- residential use is 60 decibels. All activity related to off-sale of alcoholic beverages would take place indoors. Construction for the project would consist solely of interior improvements, with no exterior work, and therefore the project would be consistent with the noise standards.
Permit Findings
Conditional Use Permit Findings
The following findings must be made for the issuance of a Conditional Use Permit pursuant to Section
20.100.720 o f the Zoni ng Code.
1. The conditional use permit, as approved, is consistent with and will further the policies of the general plan, applicable specific plans and area development policies; and Analysis: The project is consistent with the General Plan land use designation of Ne ighborhood/ Community Commercial, which allows for a range of retail uses. Off -sale alcohol sales would be incidental to the overall retail store, occupying approximately 1.25% of the sales floor area. The project is consistent with General Plan policies f or the promotion of retail development. The project is also consistent with Land Use Policy LU -5.10, which gives preference to establishments that offer a full range of food choices when considering off -sale alcohol uses. Target offers a range of grocery items that includes fresh produce and meat, dairy products, and household products.
2. The conditional use permit, as approved, conforms with the zoning code and all other provisions of the San José Municipal Code applicable to the project; and Analysis: As discussed in the Zoning Code Conformance section, the project is consistent with all applicable development standards and parking requirements of the CN Commercial Neighborhood Zoning District.
File No. CP23-002
3. The conditional use permit, as approved, is consistent with ap plicable city council policies, or counterbalancing considerations justify the inconsistency; and Analysis: Staff followed Council Policy 6-30: Public Outreach Policy for Pending Land Use and Development Proposals to inform the public of the proposed project. On-site signs have been posted on the project frontages since March 24, 2023. A notice of the public hearing was distributed to the owners and tenants of all properties located within 500 feet of the project site and posted on the City website at https://www.sanjoseca.gov/your-government/departments-offices/planning- building-code-enforcement/planning-division/commissions-hearings-and-developers- roundtable/planning-commission/planning-commission-agendas-minutes. Staff has been available to answer questions from the public.
4. The proposed use at the location requested will not:
a. Adversely affect the peace, health, safety, morals or welfare of persons residing or working in the surrounding area; or
b. Impair the utility or value of property of other persons located in the vicinity of the site; or c. Be detrimental to public health, safety or general welfare; and Analysis: According to the Police Memorandum dated June 6, 2023, the site is overconcentrated with regards to crime, but not with regards to the number of existing off-sale licenses within the census tract. The Police Department has taken a neutral position to the off- sale of alcohol at the subject site. The site is adjacent to residentially zoned property and a middle school. However, the Target entrance is located within the shopping center site approximately 825 feet from the KIPP school site and is not directly visible from the school or residences due to the building orientation.
The Store is a big-box retail store with a grocery component and approximately 1.25% of the approximately 79,947-square-foot sales floor area would be dedicated to alcohol sales.
According to the Operations Plan submitted by the applicant, security personnel are on duty at all times and there are video surveillance cameras monitoring the interior and exterior of the Store and the parking lot. Cashiers undergo alcohol sales training in addition to the mandated training by the ABC. Off-sale of alcohol will be permitted from 8:00 a.m. to 11:00 p.m. seven days a week (although the Store’s regular hours are currently 8:00 a.m. to 10:00 p.m.) except that the Store will be permitted to sell off-sale alcohol from 7:00 a.m. to 12:00 a.m. during its extended holiday hours. The Conditional Use Permit includes conditions to address issues related to trash, litter, graffiti, site maintenance, loitering and panhandling, lighting and windows, and noise.
5. The proposed site is adequate in size and shape to accommodate the yards, walls , fences, parking and loading facilities, landscaping and other development features prescribed in this title, or as is otherwise required in order to integrate said use with the uses in the surrounding area; and Analysis: There are no physical changes pro posed to the subject site. The project consists of the addition of sales of alcoholic beverages for off -site consumption at an existing retail store with a grocery component. The existing site includes 581 vehicle parking spaces, bicycle parking, landscaping, fencing, and an existing loading area at the rear of the store.
6. The proposed site is adequately served:
a. By highways or streets of sufficient width and improved as necessary to carry the kind and quantity of traffic such use would generate; or by other forms of transit adequate to carry the File No. CP23-002
kind and quantity of individuals such use would generate; and b. By other public or private service facilities as are required.
Analysis: The subject site is served by two public streets (Story Road and South King Road) and there are public sidewalks on both streets. Additionally, the subject site is served regionally by multiple VTA bus lines including Routes 22, 25, and 77. The site is served by all necessary public and private utilities.
7. The environmental impacts of the project, including but not limited to noise, vibration, dust, drainage, erosion, storm water runoff, and odor which, even if insignificant for purposes of the California Environmental Quality Act (CEQA), will not have an unacceptable negative affect on adjacent property or properties.
Analysis: The project consists of allowing the sale of alcoholic beverages for off -site consumption.
Physical changes would be limited to minor tenant improvements in the interior of the Store to create a sales area for alcoholic beverages, so there will be no noise, vibration, dust, or odors associated with construction that will affect surrounding uses. The project does not entail any changes that would have a significant effect in terms of drainage, erosion, or stormwater runoff from the Store or the site. In regard to CEQA, the project is eligible for a Class 1 categorical exemption for existing facilities, as the off-sale of alcohol will occur in an existing building with no increase in floor area or operating conditions.
Required Findings for the Off-Sale of Alcohol
A Conditional Use Permit may be issued pursuant to the applicable provisions of Chapter 20.80, Part 11 for the off-sale of any alcoholic beverages only if the decision-making body first makes the following additional findings, where applicable:
1. For such use at a location closer than five hundred feet from any other such use involving the off- sale of alcoholic beverages, situated either within or outside the city, that the proposed location of the off-sale alcohol use would not result in a total of more than four establishments that provide alcoholic beverages for offsite consumption within a one-thousand-foot radius from the proposed location.
Analysis: The addition of off-sale alcohol at this location would result in four off-sale establishments within a 1,000-foot radius of the exterior of the Store (Exhibit E, Alcohol Radius Map). The nearest off-sale establishments are Smart & Final, located approximately 380 feet to the southwest, which is in the same shopping center and census tract as Target (Census Tract 5035.04); Cardenas Market, located approximately 655 feet to the northwest across Story Road; and Tak Food & Liquor, located approximately 545 feet to the northeast across Story Road. The latter two stores are located in Census Tract 5037.03. The Store is located approximately 500 feet east of the westerly property line, such that the Tropicana Foods (Census Tract 5034.01) location falls outside the 1,000-foot radius from the store location. Therefore, this finding can be made.
2. For such use at a location closer than five hundred feet from any other use involving the off-sale of alcoholic beverages, situated either within or outside the city, where the proposed location of the off-sale of alcoholic beverages use would result in a total of more than four establishments that provide alcoholic beverages for off-site consumption within a one-thousand-foot radius from the proposed location, that the resulting excess concentration of such uses will not:
a. Adversely affect the peace, health, safety, morals, or welfare of persons residing or working in the surrounding area; or
File No. CP23-002
b. Impair the utility or value of property of other persons located in the vicinity of the area; or c. Be detrimental to public health, safety or general welfare.
Analysis: The off-sale of alcohol location would not result in a total of more than four establishments that provide alcoholic beverages for off-site consumption within a 1,000-foot radius from the Target location. In its memorandum dated June 6, 2023, the Police Department is neutral to off-sale alcohol use at the Target. According to the Operations Plan submitted by the permittee, security personnel are on duty at all times as well as video surveillance cameras in the interior and exterior of the Store and in the parking lot. Cashiers undergo alcohol sales training in addition to the mandated training by the ABC. Off-sale of alcohol will be permitted from 8:00 a.m. to 11:00 p.m. seven days a week (although the Store’s regular hours are currently 8:00 a.m. to 10:00 p.m.) except that the Store will be permitted to sell off-sale alcohol from 7:00 a.m. to 12:00 a.m. during its extended holiday hours. Therefore, off-sale of alcohol would not adversely affect the safety, peace, or welfare of the area and this finding can be made.
3. For such use at a location closer than five hundred feet from any child care center, public park, social service agency, residential care facility, residential service facility, elementary school, secondary school, college or university, or one hundred fifty feet from any residentially zoned property, that the building in which the proposed use is to be located is situated and oriented in such a manner that would not adversely affect such residential, child care center, public park, social service agency, residential care facility, residential service facility and/or school use.
Analysis: The nearest school is KIPP Heartwood Academy, which adjoins the project site. The site is also adjacent to residentially zoned property to the south and east. As discussed above, Target’s grocery offerings include a variety of food and beverages, and the off-sale of alcoholic beverages would be incidental to sales of those products and other merchandise available in the Store. The sales area for alcoholic beverages, which would be located inside the Store away from the storefront windows, would occupy approximately 1.25% of the sales floor. The Store entrance is located within the shopping center site approximately 825 feet from the KIPP school site and is not directly visible from the school. The Store is equipped with video surveillance cameras on the interior and exterior as well as the parking lot and security personnel are on duty at all times.
All adjacent residential uses are located to the east and south of the project site, while the store entrance is located on the west elevation. The rear and south sides of the Store are surrounded by a parking lot that provides a buffer between the Store and the residential uses (approximately 50 feet wide to the east and 265 feet wide to the south). This parking lot is gated and is only accessible to employees and delivery trucks. Therefore, the proposed off-sale of alcohol would not adversely affect the adjacent school and residential uses and this finding can be made.
Determination of Public Convenience or Necessity Findings Under California Business and Professions Code Sections 23958 and 23958.4, the Department of Alcohol Beverage Control (ABC) must deny an application for a liquor license “if issuance of that license would tend to create a law enforcement problem, or if the issuance would result in or add to an undue concentration of liquor licenses in the area,” unless the City determines that the public convenience or necessity would be served by the issuance of the license (Determination of Public Convenience or Necessity, or PCN). An “undue concentration” is defined as follows:
1. The premises of the proposed license are located in an area that has 20 percent greater number of reported crimes than the average number of reported crimes for the City as a whole, or File No. CP23-002
2. The premises of the proposed license are located in a census tract where the ratio of existing retail off-sale licenses to population in the census tract exceeds the ratio in the County as a whole.
Analysis: The project site is located within Census Tract 5035.04. According to the Police Department Memorandum dated June 6, 2023, the ratio of off-sale retail licenses in the census tract does not exceed the ratio of off-sale retail licenses to population in the county in which the applicant premises are located if approved. The number of off-sale establishments authorized in the census tract is two, per California ABC. There is currently one off-sale establishment operating within the census tract and the Target store would be the second. However, per the same memorandum, the reported crime statistics in San José Police Beat C3, where the project site is located, are more than 20% higher than the city average. Therefore, for the California Department of Alcoholic Beverage Control to be able to issue a license for this off-sale use, the City must grant a Determination of Public Convenience or Necessity. The analysis of the proposal is based on the required findings identified in Title 6 of the San José Municipal Code and is described below.
Chapter 6.84 of Title 6 identifies the process and findings related specifically to the off-sale of alcohol and specifies that the Planning Commission may issue a PCN only after first making all of the findings specified below (see SJMC Section
6.84.030):
1. The proposed use is not located within a Strong Neighborhoods I nitiative or neighborhood revitalization area or other area designated by the city for targeted neighborhood enhancement services or programs, or located within an area in which the chief of police has determined based upon quantifiable information that the proposed use :
a. Would be detrimental to the public health, safety, or welfare of persons located in the area; or
b. Would increase the severity of existing law enforcement or public nuisance problems in the area; and
Analysis: T he project site is located within the East Valley/680 Communities area, which is a Strong Neighborhoods Initiative (SNI) revitalization area designated by the City for targeted neighborhood enhancement services or programs. However, the Police Department memorandum dated June 6, 2023, states that it is neutral to the issuance of a Conditional Use Permit for the off-sale of alcohol at the subject site, subject to certain conditions (hours during which off-sale of alcohol is permitted and restrictions on sale of individual beer and malt liquor and wine with alcohol content above 15%) that are included in the permit. Additionally, the applicant’s operations plan provides provisions for trash and graffiti removal, security and safety, and cashier training for alcohol sales. Security personnel are on duty at the Store at all times and video surveillance is utilized throughout the Store and the exterior of the building, including the parking lot. Off-sale of alcohol will be permitted from 8:00 a.m. to 11:00 p.m. seven days a week (although the Store’s regular hours are currently 8:00 a.m. to 10:00 p.m.) except that the Store will be permitted to sell off-sale alcohol from 7:00 a.m. to 12:00 a.m. during its extended holiday hours. Therefore, the use would not be detrimental to public health, safety, or welfare of persons located in the area, or increase the severity of existing law enforcement or public nuisance problems in the area. However, because the project site is located within an SNI area, this finding cannot be made.
2. The proposed use would not lead to the grouping of more than four off- premises sale of alcoholic beverage uses within a one -thousand-foot radius from the exterior of the building containing the proposed use; and
File No. CP23-002
Analysis: There are currently three off-sale establishments within a 1,000-foot radius (Smart & Final, Cardenas Market, and Tak Food & Liquor), such that the use will result in four off-sale establishments within a 1,000-foot radius. Therefore, this finding can be made.
3. The proposed use would not be located within five hundred feet of a school, day care center, public park, social services agency, or residential care or service facility, or within one hundred fifty feet of a residence; and
Analysis: T he subject site is located within 500 feet of a school and within 150 feet of a residence.
The nearest school (KIPP Heartwood Academy) is adjacent to the project site to the south and west. A single-family neighborhood is located adjacent to the site to the east and south. Therefore, this finding cannot be made.
4. Alcoholic beverage sales would not represent a majority of the proposed use; and Analysis: The sales floor area of the St ore is approximately 79,974 square feet. The floor area dedicated to alcohol sales is approximately 1,000 square feet, or approximately 1.25% of the sales floor. Therefore, this finding can be made.
5. At least one of the following additional findings:
a. The census tract in which the proposed outlet for the off- premises sale of alcoholic beverages is located is unusually configure d and the proposed outlet would act as a convenience to an underserved portion of the community without presenting a significant adverse impact on public health or safety; or
Analysis: The census tract is not unusually configured in shape. Therefore, this finding cannot be made.
b. The proposed outlet for the off -premises sale of alcoholic beverages would enhance or facilitate the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety; or
Analysis: The off-sale of alcohol would occur in an existing Target store that provides the surrounding neighborhood with access to a variety of retail goods, including grocery items such as fresh produce and meat and household and personal merchandise . The project would allow Target to complement its current products with the sale of alcoholic beverages for off- site consumption (Type 21 ABC License). Approximately 1.25% of the 79,974-square-foot sales floor would be dedicated to sales of alcoholic beverages. According to the Police Department memo dated June 6, 2023, the Police Department is neutral to the issuance of a Conditional Use Permit for the off-sale of alcohol at the subject site. Although the reported crime statistics in Police Beat C3, where the Store is located, are more than 20% higher than the city average, the ratio of off-sale retail licenses to population in the census tract does not exceed the ratio of off-sale retail licenses to population in the county. Also, as discussed in finding 2 above, the operations plan contains a number of security and safety measures that will ensure the off-sale of alcohol is not detrimental to public health, safety, or welfare of persons located in the area.
Therefore, this finding can be made.
c. The census tract in which the proposed outlet is located has a low population density in relation to other census tracts in the city, and the proposed outlet would not contribute to an over-concentration in the absolute numbers of outlets for the off- premises sale of alcoholic beverages in the area; or
Analysis: According to the 2020 Census, the population density of Census Tract 5035.04 is File No. CP23-002
13,597 people per square mile , per the 2020 U.S. Census Demographic Data Map Viewer1.There are other census tracts in the city with lower population density, including adjoining Census Tract 50 36.02, which has 10,025 people per square mile. The project would not result in an overconcentration in the number of outlets for the off -premises sale of alcoholic beverages as explained above. Therefore, this finding can cannot be made. d. The proposed off -premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience.
Analysis: Ap proximately 1.25% of the sales floor area would be dedicated to the off-sale of alcohol. The remainder of the approximately 79,974-square-foot sales floor area would be dedicated to merchandise typical of a big-box retail store ranging from grocery items, including fresh produce and meat, to clothing, electronics, and other household goods. Therefore, this finding can be made.
If the Planning Commission cannot make one or more of the first four findings (items 1 through 4) listed above, then the Planning Commission is required by San José Municipal Code Section 6.84.030.D to make a recommendation to the City Council as to whether the Council should make a determination for the proposed use.
Analysis: T he first and third finding (9.e.i and iii) for the issuance of a Determination of Public Convenience or Necessity cannot be made for the off-sale of alcohol because the project site is located within an SNI area and within 500 feet of a school and within 150 feet of residentially zoned property. Therefore, City Council approval is required for the proposed use. The Planning Commission must make a recommendation on the proposed use to the City Council and the City Council may issue a determination in connection with an application for a license from the California Department of Alcoholic Beverage Control for the off-premises sale of alcoholic beverages, where it can make a determination that not all of the required findings can be made, and when the Council identifies that a significant and overriding public benefit or benefits will be provided by the proposed use. The Council can identify and find that significant and overriding public benefit will be provided by the proposed use.
Notwithstanding the foregoing provisions and requirements contained in Subsection D. above, the City Council may issue a determination in connection with an application for a license from the California Department of Alcoholic Beverage Control for the off-premises sale of alcoholic beverages where the City Council does all of the following:
a. Makes a determination that not all of the required findings set forth in Subsection B. can be made; and
Analysis: The first and third finding (9.e.i and iii) for the Determination of Public Convenience or Necessity cannot be made by the Planning Commission for the off-sale of alcohol because the subject site is located within an SNI area and within 500 feet of a school and 150 feet of a residentially zoned property. However, the Planning Commission can make two of the four findings (9.e.ii and iv). Moreover, the Commission can make findings 5.b, 5.c, and 5.d of the additional findings.
b. Identifies and finds that a significant and overriding public benefit or benefits will be provided by the proposed use.
1 https://mtgis- portal.geo.census.gov/arcgis/apps/MapSeries/index.html?appid=2566121a73de463995ed2b2fd7ff6eb7 File No. CP23-002
Analysis: While the Planning Commission cannot make all of the required findings for the Determination of Public Convenience or Necessity, there are significant and overriding benefits derived from the project as proposed. The sale of alcoholic beverages for off-sale consumption would expand retail offerings at the intersection of Story Road and South King Road, a regional shopping destination with shopping centers on three corners. It would also provide a convenience for Target shoppers, minimizing the number of stores they would need to visit to fulfill their shopping needs. In addition, consistent with Envision San José 2040 General Plan Land Use Policy LU-5.10, which pertains to review of locations for the off-sale of alcohol, the proposed project qualifies as an establishment that offers a full range of food choices including fresh fruit, vegetables, and meat.
Off-sale of alcohol would be incidental to the overall retail use, occupying approximately 1.25% of the sales floor. The entrance to the Store faces a large surface parking lot and is oriented away from adjoining residential and school uses to the east and south. The parking lot behind the Store is accessible only to employees and provides a further buffer between residential uses and the Store.
Per the operations plan, the Store employs a number of security measures aimed at ensuring its operations are conducted without disruption or disturbance to the surrounding neighborhood.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
Under the provisions of Section 15301(a) for Existing Facilities of the State Guidelines for I
mplementation of the California Environmental Quality Act (CEQA) as stated below, this project is found to be exempt from the environmental review requirements of Title 21 of the San José Municipal Zoning Code, implementing the California Environmental Quality Act of 1970, as amended.
Class 1 Categorial Exemption consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. The key consideration is whether the project involves negligible or no expansion of an existing use. The project does not involve any structural modifications or expansion to the footprint of the existing retail building.
The project would allow off-sale alcohol within the interior space of a big-box retail store and would include interior modifications to allow for the display of alcoholic beverages. The retail use of off-sale alcoholic beverages will be conducted wholly inside the building. Based on the discussion and findings in the sections below, the project would not have a significant effect on the environment. Therefore, the project is categorically exempt pursuant to CEQA Section 15301(a) for Existing Facilities.
PUBLIC OUTREACH
Staff followed Council Policy 6-3 0: Public Outreach Policy for Pending Land Use and Development Proposals to inform the public of the proposed project. On-site signs have been posted on the project frontages since March 24, 2023. A notice of the public hearing was distributed to the owners and tenants of all properties located within 500 feet of the project site and posted on the City website. The staff report is also posted on the City website. Staff has been available to respond to questions from the public. No calls or emails were received from members of the public regarding this project.
Project Manager: Kora McNaughton
Approved by: /s/ Robert Manford, Deputy Director – Planning, for Christopher Burton, Planning Director
File No. CP23-002
EXHIBITS:
Exhibit A: Vicinity Map/Aerial
Exhibit B: Floor Plan
Exhibit C: General Plan Map
Exhibit D: Zoning Map
Exhibit E: Alcohol Radius Map
Exhibit F: Plan Set
Exhibit G: Operations Plan
Exhibit H: Police Dept. Memo
Exhibit I: Draft Resolution
Owner/Applicant: Applicant’s Representative:
Jonathan Redberg
Target Corporation
33 South 6th Street, CC-1128
Minneapolis, MN 55402
Beth Aboulafia
Hinman & Carmichael
260 California Street, Suite 1001
San Francisco, CA 94111
File No. CP23-002
Exhibit A: Vicinity Map/Aerial
File No. CP23-002
Exhibit B: Floor Plan
File No. CP23-002
Exhibit C: General Plan Map
File No. CP23-002
Exhibit D: Zoning Map
File No. CP23-002
E
xhibit E: Alcohol Radius Map