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RESOLUTION NO.____
A RESOLUTION OF THE COUNCIL OF THE CITY OF
SAN JOSE APPROVING, SUBJECT TO CONDITIONS, A
CONDITIONAL USE PERMIT AND DETERMINATION OF
PUBLIC CONVENIENCE OR NECESSITY TO ALLOW OFF-
SALE ALCOHOL (TYPE 21 ABC LICENSE) AT AN EXISTING
APPROXIMATELY 125,824-SQUARE FOOT RETAIL STORE
ON AN APPROXIMATELY 10.77-GROSS-ACRE SITE,
LOCATED AT THE SOUTHEAST CORNER OF STORY
ROAD AND SOUTH KING ROAD (1750 STORY ROAD)
FILE NO. CP23-002
WHEREAS, pursuant to the provisions of Chapter 20.100 of Title 20 of the San José Municipal Code, on January 4, 2023, an application (File No. CP23-002) was filed by Beth Aboulafia of Hinman & Carmichael LLP, on behalf of the owner, Target Corporation, with the City of San José for a Conditional Use Permit and Determination of Public Convenience or Necessity for off-sale of alcohol (full range of alcoholic beverages) within an existing retail use, on an approximately 10.77-gross acre site, on that certain real property situated in the CN Commercial Neighborhood Zoning District and located on the southeast corner of Story Road and South King Road (1750 Story Road, San José, which real property is sometimes referred to herein as the “subject property”); and
WHEREAS, the subject property is all that real property more particularly described in Exhibit "A" entitled “Legal Description,” which is attached hereto and made a part hereof by this reference as if fully set forth herein; and
WHEREAS, pursuant to and in accordance with Chapter 20.100 of Title 20 of the San José Municipal Code, the Planning Commission conducted a Public Hearing on said concurrent applications on June 28, 2023, notice of which was duly given; and
WHEREAS, at said hearing, the Planning Commission gave all persons full opportunity NVF:AXY:DJF
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to be heard and to present evidence and testimony respecting said matter; and
WHEREAS, at said hearing, the Planning Commission made a recommendation to the City Council respecting said matter based on the evidence and testimony; and
WHEREAS, pursuant to and in accordance with Chapter 20.100 of Title 20 of the San José Municipal Code, this City Council conducted a hearing on said application, notice of which was duly given; and
WHEREAS, at said hearing, this City Council gave all persons full opportunity to be heard and to present evidence and testimony respecting said matter; and
WHEREAS, at said hearing, this City Council received and considered the reports and recommendations of the City’s Planning Commission and the City’s Director of Planning, Building and Code Enforcement; and
WHEREAS, at said hearing, this City Council received in evidence a plan for the subject property entitled, “Target Conditional Use Permit” received on May 19, 2023, said plan is on file in the Department of Planning, Building and Code Enforcement and is available for inspection by anyone interested herein, and said plan is incorporated herein by this reference, the same as if it were fully set forth herein; and
WHEREAS, said public hearing before the City Council was conducted in all respects as required by the San José Municipal Code and the rules of this City Council; and
WHEREAS, this City Council has heard and considered the testimony presented to it at the public hearing, and has further considered written materials submitted on behalf of the project applicant, City staff, and other interested parties;
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NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SAN JOSE THAT:
After considering evidence presented at the public hearing, the City Council finds that the following are the relevant facts and findings regarding this proposed project:
1. Site Description and Surrounding Uses. 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. The shopping center tenants are served by an approximately 581-space surface parking lot. The subject site is accessed by vehicles through ingress/egress driveways on Story Road and 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 house to the south; the same middle school and commercial buildings with surface parking to the west; and commercial uses with surface parking to the north.
2. Project Description. The project consists of a Conditional Use Permit and Determination of Public Convenience or Necessity to allow the sale of a full range of alcoholic beverages (California Alcoholic Beverage Control Type 21 License) for off- sale consumption in an existing 125,824-square-foot Target store on an approximately
10.77-gross-acre site. The total sales floor area of the Store is 79,974 square feet.
Off-sale alcohol sales will be incidental to the retail store, which is a permitted use in the CN Commercial Neighborhood Zoning District and will occupy approximately 1,000 square feet, or approximately 1.25%, of the sales floor area. The off-sale alcohol use requires state Alcoholic Beverage Control (ABC) License Type 21. A Type 21 License allows for off-sale of a full range of alcoholic beverages for consumption off the premises where sold. 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 extended holiday hours. Staffing at the Store ranges from 140 to 180 employees at any given time, including security personnel.
The subject site is located within what is classified as an over-concentrated census tract (Census Tract 5035.04) because of its 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 required to be issued to process the Conditional Use Permit application.
As stated in the Police Department memo dated June 6, 2023, the census tract is not overconcentrated in regard to the number of off-sale licenses. The number of off-sale establishments authorized in the census tract is two, per the ABC. There is currently one off-sale establishment operating within the census tract; the Store will be the second. The Police Department is neutral to the issuance of a Conditional Use Permit NVF:AXY:DJF
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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.
There are three off-sale alcohol uses within 1,000 feet of the subject store (Smart & Final in the same shopping center, and Cardenas Market and Tak Food & Liquor, both located across Story Road from the subject site). The project site is adjacent to residentially zoned property to the east and south (single-family neighborhood) and a KIPP Heartwood Academy, a middle school, to the south. The existing retail store offers a range of products including groceries, and sales of alcoholic beverages will be incidental to the Store’s general operations, occupying approximately 1.25% of the sales floor area.
3. General Plan Conformance. The subject site has an Envision San José 2040 General Plan land use designation of Neighborhood/Community Commercial and is located within the Story Road Employment Area. The Neighborhood/Community Commercial land use designation supports a very broad range of commercial activity, including neighborhood-serving retail and services. 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.
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 off-sale alcohol at an existing Target store, which 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 will 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 will be incidental to the Store’s overall inventory, occupying approximately 1.25% of the sales floor area.
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4. Zoning Ordinance Compliance
Land Use
The subject site is located within the CN Commercial Neighborhood Zoning District.
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 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 Standards
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 20.40.220. As previously discussed, the approximately 125,824-square foot retail store operates in an existing building, approved in July 2004 under File No. H04-021. The setbacks and height will not be altered by this Conditional Use Permit, which does not include approval of any structural changes, exterior improvements, signage, or other uses.
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 of 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.
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Construction for the project would consist solely of interior improvements, with no exterior work. Therefore, the project will be consistent with the noise standards.
5. City Council Policy 6-30: Public Outreach Policy for Pending Land Use Development Proposals
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 two site 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. The staff report is also posted on the City website and staff has been available to respond to questions from the public.
6. Environmental Review.
Under the provisions of the California Environmental Quality Act (“CEQA”) Section 15301(a) for Existing Facilities of the State Guidelines for Implementation of the California Environmental Quality Act, the project is found to be categorically exempt from the environmental review requirements of Title 21 of the San José Municipal 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 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 will allow off-sale alcohol within the interior space of a big-box retail store and 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 will not have a significant effect on the environment. Therefore, the project is categorically exempt pursuant to CEQA Section 15301(a) for Existing Facilities.
7. Conditional Use Permit Findings. The following findings must be made for the issuance of a Conditional Use Permit pursuant to Section 20.100.720 of the San José Zoning Code:
a. 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 Neighborhood/Community Commercial, which allows for a range of retail uses.
Off-sale alcohol sales will be incidental to the overall retail store, occupying approximately 1.25% of the sales floor area. The project is consistent with NVF:AXY:DJF
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General Plan policies for 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.
b. 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 Ordinance Conformance section, the project is consistent with all applicable development and noise standards and parking requirements of the CN Commercial Neighborhood Zoning District. c. The conditional use permit, as approved, is consistent with applicable 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 two site 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.
Staff has been available to answer questions from the public. d. The proposed use at the location requested will not:
i. Adversely affect the peace, health, safety, morals or welfare of persons residing or working in the surrounding area; or
ii. Impair the utility or value of property of other persons located in the vicinity of the site; or
iii. Be detrimental to public health, safety or general welfare; and Analysis: According to the Police Memorandum dated June 6, 2023, the site is overconcentrated in regard to crime but not in regard 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 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 or residences due to the building orientation.
The Store is a large retail store with a grocery component and approximately 1.25% of the approximately 79,947-square-foot sales floor area will be dedicated to alcohol sales. According to the Operations Plan submitted by the applicant, the Store has security personnel on duty at all times and 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. The Conditional Use Permit includes conditions to address issues related to trash, litter, graffiti, site maintenance, loitering and panhandling, lighting NVF:AXY:DJF
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and windows, and noise.
e. 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 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 site includes 581 vehicle parking spaces, bicycle parking, landscaping, fencing, and an existing loading area at the rear of the Store.
f. The proposed site is adequately served:
i. 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 kind and quantity of individuals such use would generate; and
ii. 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, which are both improved with sidewalks. 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. g. 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 will be limited to minor tenant improvements to 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 will 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 store with no increase in floor area or change in operating conditions.
8. Off-Sale Alcohol Findings. A Conditional Use Permit may be issued pursuant to the applicable provisions of Section 20.80.900 of the Zoning Code for the off-sale of any alcoholic beverages only if the decision-making body first makes the following additional findings, where applicable:
a. 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 will not 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.
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Analysis: The addition of off-sale alcohol at this location would result in a total of four off-sale establishments within a 1,000-foot radius of the exterior of the Target store.
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 the Store (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 Target store is located approximately 500 feet east of the subject site’s 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.
b. 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:
i. Adversely affect the peace, health, safety, morals, or welfare of persons residing in or working in the surrounding area; or
ii. Impair the utility or value of property of other persons located in the vicinity of the area; or
iii. Be detrimental to public health, safety or general welfare Analysis: Allowing the off-sale of alcohol at the Store will not result in a total of more than four establishments that provide alcoholic beverages for off-site consumption within a 1,000-foot radius. In its memorandum dated June 6, 2023, the Police Department states it is neutral to off-sale alcohol use at the Target.
According to the Operations Plan submitted by the permittee, there are security personnel 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 extended holiday hours. These measures will ensure that off-sale of alcohol will not adversely affect the safety, peace, or welfare of the area and this finding can be made.
c. 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.
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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, the Store’s grocery offerings include a variety of food and beverages and the off-sale of alcoholic beverages will be incidental to sales of those products and other merchandise available in the Store. The sales area for alcoholic beverages, which will be located inside the Store away from the storefront windows, will 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 Target 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 accessible only by employees and delivery trucks. Therefore, the proposed off-sale of alcohol will not adversely affect the adjacent school and residential uses and this finding can be made.
9. Determination of Public Convenience or Necessity Findings. Chapter 6.84 of the San José Municipal Code identifies the process and findings related specifically to the off-sale of alcohol; the findings are discussed below.
a. The proposed use is not located within a Strong Neighborhoods Initiative 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 i. Would be detrimental to the public health, safety, or welfare of persons located in the area; or
ii. Would increase the severity of existing law enforcement or public nuisance problems in the area; and
Analysis: The project site is located within the East Valley/680 Communities area, which is a Strong Neighborhoods Initiative 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. There are security personnel on duty at all times and video surveillance NVF:AXY:DJF
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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 extended holiday hours. Therefore, the Store will employ measures to ensure the use will 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.
b. 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 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.
c. 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: The subject site is located within 500 feet of a school and within 150 feet of a residence. KIPP Heartwood Academy is adjacent to the project site to the south and west and a single-family neighborhood is adjacent to the site to the east and south. Therefore, this finding cannot be made.
d. Alcoholic beverage sales would not represent a majority of the proposed use; and Analysis: The sales floor area of the Store 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. e. At least one of the following additional findings:
i. The census tract in which the proposed outlet for the off-premises sale of alcoholic beverages is located is unusually configured 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.
ii. 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 will 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 will allow Target to NVF:AXY:DJF
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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 will be dedicated to sales of alcoholic beverages. According to the memo dated June 6, 2023, the Police Department states it 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.
iii. 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 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 5036.02, which has 10,025 people per square mile. The project will not result in an overconcentration in the number of outlets for the off-premises sale of alcoholic beverages as explained above. Therefore, this finding cannot be made.
iv. 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: Approximately 1.25% of the sales floor area will be dedicated to the off-sale of alcohol. The remainder of the approximately 79,974-square-foot sales floor area will 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.
The first and third finding 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 500 feet of a school and within 150 feet of residentially zoned property.
Therefore, City Council approval is required for the proposed use. The City Council may issue a determination in connection with an application for a license from the
1 https://mtgis-
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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 of Section 6.84.030 of the Municipal Code 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 within 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.
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. The sale of alcoholic beverages for off-sale consumption will expand retail offerings at the intersection of Story Road and South King Road, a regional commercial hub with shopping centers on three corners. It will also provide a convenience for Target shoppers, minimizing the number of stores they will 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 project qualifies as an establishment that offers a full range of food choices, including fresh fruit, vegetables, and meat.
Off-sale of alcohol will 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.
In accordance with the findings set forth above, a Conditional Use Permit and Determination of Public Convenience or Necessity to use the subject property for said purpose specified above and subject to each and all of the conditions hereinafter set forth is hereby granted. This City Council expressly declares that it would not have approved this Permit except upon and subject to each and all of said conditions, each and all of which conditions shall run with the land and be binding upon the owner and all subsequent owners of the subject property, and all persons who use the subject property for the use conditionally permitted hereby.
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APPROVED SUBJECT TO THE FOLLOWING CONDITIONS:
1. Acceptance of Permit. Per Section 20.100.290(B), should the permittee fail to file a timely and valid appeal of this Planned Development Permit and Determination of Public Convenience or Necessity (collectively “Permit”) within the applicable appeal period, such inaction by the permittee shall be deemed to constitute all of the following on behalf of the permittee:
a. Acceptance of the Permit by the permittee; and
b. Agreement by the permittee to be bound by, to comply with, and to do all things required of or by the permittee pursuant to all of the terms, provisions, and conditions of this Permit or other approval and the provisions of Title 20 of the San José Municipal Code applicable to such Permit.
2. Permit Expiration. This Permit shall automatically expire four (4) years from and after the date of issuance hereof by the City Council, if within such time period, a Building Permit (for foundation or vertical construction) has not been obtained or, if no Building Permit is required, the use has not commenced, pursuant to and in accordance with the provisions of this Permit. The date of issuance is the date this Permit is approved by the City Council. However, the Director of Planning, Building and Code Enforcement may approve a Permit Adjustment/Amendment to extend the validity of this Permit in accordance with Title 20. The Permit Adjustment/Amendment must be approved prior to the expiration of this permit.
3. Building Permit/Certificate of Occupancy. Procurement of a Building Permit and/or Certificate of Occupancy from the Building Official for the structures described or contemplated under this Permit shall be deemed acceptance of all conditions specified in this Permit and the Permittee's agreement to fully comply with all of said conditions. No change in the character of occupancy or change to a different group of occupancies as described by the Building Code shall be made without first obtaining a Certificate of Occupancy from the Building Official, as required under San José Municipal Code Section 24.02.610, and any such change in occupancy must comply with all other applicable local and state laws.
4. Sewage Treatment Demand. Pursuant to Chapter 15.12 of Title 15 of the San José Municipal Code, acceptance of this Permit by permittee shall constitute acknowledgement of receipt of notice by permittee that (1) no vested right to a Building Permit shall accrue as the result of the granting of this Permit when and if the City Manager makes a determination that the cumulative sewage treatment demand of the San José-Santa Clara Regional Wastewater Facility represented by approved land uses in the area served by said Facility will cause the total sewage treatment demand to meet or exceed the capacity of San José-Santa Clara Regional Wastewater Facility to treat such sewage adequately and within the discharge standards imposed on the City by the State of California Regional Water Quality Control Board for the San Francisco Bay Region; (2) substantive conditions designed to decrease sanitary sewage associated with any land use approval may be imposed by the approval authority; (3) issuance of a Building Permit to implement this Permit may be suspended, conditioned or denied where the City Manager is necessary to remain NVF:AXY:DJF
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within the aggregate operational capacity of the sanitary sewer system available to the City of San José or to meet the discharge standards of the sanitary sewer system imposed on the City by the State of California Regional Water Quality Control Board for the San Francisco Bay Region.
5. Use Authorization. Subject to all conditions herein, this Permit allows a Conditional Use Permit and Determination of Public Convenience or Necessity to allow the off- sale of alcohol (Type 21 ABC License – Full Range of Alcoholic Beverages) at an existing 125,824-square foot retail store on an approximately 10.77-gross-acre site.
The permittee shall comply with the Operations Plan, which is incorporated herein by reference.
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. d. The Target site will be well-maintained, clean, and free of litter, graffiti, etc. e. The interior, exterior, and parking lot of the Store will be monitored at all times by security personnel and video surveillance cameras.
f. Loitering and panhandling will not be tolerated, and the Permittee will maintain a zero-tolerance policy. No loitering signs will be posted in conspicuous places containing wording (Spanish and English) that aligns with state and local law (business owner to work with San José Police to obtain proper language). All loitering and panhandling issues will be dealt with in a swift and consistent manner by notifying local police. No consumption or open alcoholic beverages will be permitted on the premises. Signs specifically prohibiting this activity will also be placed in conspicuous places in both Spanish and English. g. No consumption or open containers of alcoholic beverages will be permitted on the premises.
h. Target personnel will be available to meet with neighbors to address any concerns that arise.
i. All cashiers will receive training in responsible alcoholic beverage sales. j. Both the north and south sides of the rear parking lot are gated. There is no customer parking allowed in the rear parking lot.
6. Conformance with ABC Requirements. The off-sale of alcohol (Type 21 - full range of alcoholic beverages) is allowed in conformance with the requirements of the Department of Alcohol Beverage Control (ABC). The permittee shall obtain and maintain full compliance with its ABC license and remain in good standing with the Department of Alcoholic Beverage Control.
7. Limitations on the Area of Alcohol Sales. The sale of alcohol for off-site consumption allowed by this Permit shall be limited and incidental to the primary use of a convenience NVF:AXY:DJF
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general retail store. The area in which alcoholic beverages are displayed or otherwise offered for sale shall not exceed 1,000 square feet (approximately 1.25%) of the total sales floor area (79,974 square feet) of the retail space that is open and accessible to the general public (i.e., excluding backroom storage and office spaces). Alcohol product displays shall not be placed outside the retail tenant space.
8. Conformance to Plans. The development of the site shall conform to the approved Planned Development Permit plans entitled, “Target Conditional Use Permit” received on May 19, 2023, on file with the Department of Planning, Building and Code Enforcement as may be amended and approved by the Director of Planning, Building, and Code Enforcement, and to the San José Building Code (San José Municipal Code, Title 24). The plans are referred to herein as the “approved plans” or the “Approved Plan Set.”
9. Compliance with Local, State, and Federal Laws. The subject use shall be conducted in full compliance with all local, and, state, and federal laws.
10. Discretionary Review. The City maintains the right of discretionary review of requests to alter or amend structures, conditions, or restrictions of this Permit incorporated by reference in accordance with Chapter 20.100 of the San José Municipal Code.
11. Outdoor Storage. No outdoor storage is allowed or permitted unless designated on the Approved Plan Set.
12. Nuisance. This use shall be operated in a manner which does not create a public or private nuisance. Any such nuisance must be abated immediately upon notice by the City of San José.
13. Anti-Graffiti. All graffiti shall be removed from buildings and wall surfaces, including job sites for projects under construction, within 48 hours of defacement.
14. Anti-Litter. The site and surrounding area shall be maintained free of litter, refuse, and debris. Cleaning shall include keeping all publicly used areas free of litter, trash, cigarette butts, and garbage.
15. Refuse. All trash and refuse storage areas shall be effectively screened from view and covered and maintained in an orderly state to prevent water from entering the trash or refuse container(s). Trash areas shall be maintained in a manner to discourage illegal dumping.
16. Sign Approval. No signs are approved at this time. All proposed signs shall be subject to review and approval by the Director of Planning, Building and Code Enforcement through a subsequent Permit Adjustment.
17. Lighting. No new lighting is approved at this time. All on-site exterior, unroofed lighting shall conform to the Outdoor Lighting Policy (Council Policy 4-3), as amended.
All proposed lighting shall be subject to review and approval by the Director of Planning through a subsequent Permit Adjustment.
18. No Generators Approved. This Permit does not include the approval of any stand- by/backup electrical power generation facility. Any future stand-by/backup generators shall secure appropriate permits and shall conform to the regulations of Title 20 of the Municipal Code.
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19. Building and Property Maintenance. The permittee shall maintain the property in good visual and functional condition. This shall include, but not be limited to all exterior elements of the building such as paint, roof, paving, signs, lighting and landscaping.
20. Store Operator Point of Contact. Store operator shall post in a visible location on the Store premises a phone number, and other applicable contact information for the public to address questions and comments regarding management and maintenance of the subject store and frontage.
21. Street Number Visibility. Street numbers of the buildings shall be easily visible from the street at all times, day and night.
22. Bureau of Fire Department Clearance for Issuing Permits. Prior to the issuance of a Building Permit, the project must comply with the California Fire Code as adopted or updated by the city.
23. Building Division Clearance for Issuing Permits. Prior to the issuance of any Building permit, the following requirements shall be met to the satisfaction of the Chief Building Official:
a. Construction Plans. This Permit file number, CP23-002, shall be printed on all construction plans submitted to the Building Division.
b. Americans with Disabilities Act. The permittee shall provide appropriate access as required by the Americans with Disabilities Act (ADA). c. Other. Such other requirements as may be specified by the Chief Building Official.
24. Revocation, Suspension, Modification. This Planned Development Permit and Determination of Public Convenience or Necessity may be revoked, suspended or modified by the City Council at any time regardless of who is the owner of the subject property or who has the right to possession thereof or who is using the same at such time, whenever, after a noticed hearing in accordance with Part 2, Chapter 20.100, Title 20 of the San José Municipal Code it finds:
a. A violation of any conditions of the Planned Development Permit was not abated, corrected or rectified within the time specified on the notice of violation; or b. A violation of any City ordinance or State law was not abated, corrected or rectified within the time specified on the notice of violation; or c. The use as presently conducted creates a nuisance.
In accordance with the findings set forth above, a permit to use the subject property for said purpose specified above is hereby approved.
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ADOPTED this ___ day of ____, 2023, by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
______________________________
MATT MAHAN
Mayor
ATTEST:
____________________________
TONI J. TABER, CMC
City Clerk
NOTICE TO PARTIES
The time within which judicial review must be sought to review this decision is governed by the provisions of the California Code of Civil Procedure Section 1094.6.
Exhibit A
Real property in the City of San Jose, County of Santa Clara, State of California,more particularly described as follows:
PARCEL ONE:
Parcel I as shown on that certain Parcel Map filed for record on November 19, 2004 in Book 777 of Maps at pages 46, 47, 48, 49 and 50, Records of Santa Clara County.
PARCEL TWO:
Rights and easements as contained in that certain Operation and Easement Agreement recorded November 22, 2004 as Instrument No. 18109866, Official Records.
San Jose Story Road, CAA-1
Exhibit "A" (File No. CP23-002)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.