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Resolution Number 17-07-18-01CC RESOLUTION NO. 17-07-18-01 CONDITIONAL USE PERMIT (CUP) 1) 6-008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ADOPTING A CATEGORICAL EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, REVERSING THE PLANNING COMMISSION'S DECISION, AND APPROVING THE APPEAL APPLICATION FOR CONDITIONAL USE PERMIT 16-008 FOR A TYPE 20 LICENSE FOR "OFF -SALE BEER & WINE" IN CONJUNCTION WITH A SERVICE STATION BUSINESS LOCATED AT 32001 CAMINO CAPISTRANO (ASSESSOR PARCEL NUMBER 668-073-01) (APPLICANT: BEHRAD DASHTI, PRESIDENT OF SJCC CORPORATION) Whereas, Behrad Dashti (Applicant), President of SJCC Corporation, has requested approval of conditional use permit (CUP) 16-008, to allow for the retail sale of beer and wine for off-site consumption in conjunction with the operation of an existing Shell service station within a 2,094 sq. ft. commercial building located at 32001 Camino Capistrano (Assessor Parcel Number 668-073-01). The subject property, located on the southwest corner of the Camino Capistrano and Del Obispo Street intersection, is within an existing shopping center known as the Mission Village Center and has a General Plan and f Zoning Designation of General Commercial; and, Whereas, Oso, LLC is the owner of real property located at 32001 Camino Capistrano (APN 668-073-01); and, Whereas, the proposed project has been processed pursuant to Title 9, Land Use Code, Section 9-2.301; and, Whereas, the Environmental Administrator has reviewed the project pursuant to Section 15061 of the California Environmental Quality Act (CEQA) and determined that the project qualifies for a Class 1 categorical exemption, and will cause the Notice of Exemption to be posted pursuant to Section 15061(d) of the CEQA Guidelines which provides that "the notice shall not be riled with OPR or the county clerk until the project has been approved;" and, Whereas, the Planning Commission has considered the Environmental Administrator's determination pursuant to Section 15074 of the California Environmental Quality Act (CEQA), has considered all project environmental documentation and technical studies; and, Whereas, the Planning Commission conducted a duly -noticed public hearing on May 9, 2017, pursuant to Title 9, Land Use Code, Section 9-2.302, to consider public 7/18/2017 testimony on the proposed project and has considered all relevant public comments, and subsequently denied the CUP; and Whereas, the Applicant timely and properly appealed the Planning Commission's decision to the City Council pursuant to Title 9, Land Use Code, Section 9- 3.311; and Whereas, the City Council conducted a duly -noticed public hearing on July 18, 2017, pursuant to Title 9, Land Use Code, Section 9-2.302, to consider public testimony on the proposed appeal and has considered all relevant public comments, the record, and any additional evidence pursuant to Section 9-2.311(i); and Whereas, pursuant to Title 9, Land Use Code, Section 9-3.11(i), the City Council, may affirm, reverse, or modify in whole or in part the Planning Commission's decision or may make or substitute such other additional decision as it may find warranted under the Municipal Code, General Plan, or other applicable requirements; and Whereas, to address the concerns identified in the Planning Commission's denial of the CUP, City planning staff and police services developed additional conditions of approval for the proposed use, which include installation of 360 -degree exterior HD/low- light surveillance cameras with seven day recorded backup, no alcohol sales after 10:00 p.m., no single container alcohol sales regardless of the container size, Friday and Saturday security guard from 5:00 p.m. to 10:00 p.m., no sales to known subjects with alcohol abuse history, and compliance with any Habitual Drunkard Notices. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby find that the project is Categorically Exempt (Section 15301, "Existing Facilities") from further review under CEQA. The project will allow the licensing of alcohol sales at an existing facility with no expansion of the existing use. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano does hereby make the following findings as established by Title 9, Land Use Code, Section 9-2.317(d): 1. The proposed use is consistent with the maps and policies of the General Plan, because the retail alcohol sales proposed are consistent with Land Use Element Policy 1.2, which encourages commercial and tourist -oriented development which is compatible with existing land uses and improves the generation of sales tax and the 3.1 General Commercial land use designation which permits retail business activities serving a community wide area and population or broader market; and, 2. The proposed use and design are consistent with the purpose, intent, and standards of the Land Use Code because off -sale alcoholic beverages are expressly allowed subject to the approval of a Conditional Use Permit in the General Commercial zoning district. Additionally, the proposed retail use is to be located 7/18/2017 within an existing commercial center that is consistent with the intended land uses within the General Commercial zoning district; and, 3. The site for the proposed use is adequate in size and shape to accommodate all yards, open spaces, setbacks, walls and fences, parking and loading areas, fire and building code considerations, trash and recycling enclosures, and other features pertaining to the application. The site is not being modified and the project consists only of establishing a new retail use within an existing structure previously used and zoned for a service station including retail sales; and, 4. The proposed use and the on-going operation of the use are compatible with abutting properties and the permitted uses thereof and will not generate excessive light, noise, vibration, odors, visual blight, traffic, or other disturbances, nuisances, or hazards because, as conditioned, the use will be similar in nature to other businesses operating in the vicinity. Conditions of approval that minimize potential nuisances include installation of 360 -degree exterior HD/low-light surveillance cameras with seven day recorded backup, no alcohol sales after 10:00 p.m., no single container alcohol sales regardless of the container size, Friday and Saturday security guard from 5:00 p.m. to 10:00 p.m., no sales to known subjects with alcohol abuse history, and compliance with any Habitual Drunkard Notices. Additionally, the proposed use will not negatively affect residential uses as there are no adjacent residences; and, 5. The site for the proposed use has adequate access and parking to support the use because the site is located within an established commercial center and consists only of establishing a new retail use within an existing commercial structure and tenant space previously used for retail sales. Existing vehicular circulation will remain and no further parking is required. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano hereby reverses the Planning Commission's decision to deny CUP 16-008, approves the Applicant's appeal, and approves the project subject to those conditions of approval established by Exhibit A, attached hereto and incorporated herein. CUSTODIAN OF RECORDS: The documents and materials associated with this Resolution that constitute the record of proceedings on which these findings are based are located at San Juan Capistrano City Hall, 32400 Paseo Adelanto, San Juan Capistrano, California 92675. The City Clerk is the custodian of the record of proceedings. PROTEST OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS: Pursuant to Government Code Section 66020, the applicant may protest the imposition of fees, dedications, reservations or other exactions imposed on this development project by taking the necessary steps and following the procedures established by Sections 66020 through 66022 of the California Government Code. 7/18/2017 [Signatures on following page] SIGNATURE PAGE TO RESOLUTION CC RESOLUTION NO. 17-07-18-01 PASSED, APPROVED AND ADOPTED this 181" day of July 2017 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 17-07-18-01 was duly adopted by the City Council of the City of San Juan Capistrano at the Regular meeting thereof, held the 1 8thdA­y'�f July 2047, by the following vote: MEMBERS: Reeve, Maryott, Farias and Mayor Ferguson MEMBERS: Patterson MEMBERS: None 7/18/2017 L EXHIBIT A RESOLUTION #: 17-07-18-01 CONDITIONS OF APPROVAL Project #: CUP 16-008 Project Name: Camino Capistrano Shell Gas Station -Alcohol Sales APPROVAL DATE: July 18, 2017 EXPIRATION DATE: July 18, 2019 These conditions of approval apply to Conditional Use Permit (CUP) 16-008, a request to allow for the retail sale of beer and wine for off-site consumption in conjunction with the operation of the existing Shell service station located at 32001 Camino Capistrano (APN: 668-073-01). Any proposed change of use shall be submitted to the City Development Services Department, along with the required application and deposit or fee, for review. For the purpose of these conditions, the term "applicant" shall also mean the owner or any successor(s) in interest to the terms of this approval. General Conditions: 1. Conditional Use Permit 16-008 is granted to establish and operate the off - premise sale of beer and wine in conjunction with the operation of a Shell service station within a 2,094 sq. ft. commercial service station located at 32001 Camino Capistrano (Assessor Parcel Number 668-073-01). Approval is granted based on the application materials submitted by Behrad Dashti, SJCC Corporation President on October 28, 2016 and March 21, 2017. These plans, materials and the proposed use of the site are approved as submitted and conditioned herein, and shall not be further altered unless reviewed and approved by the affected city departments. Minor modifications to this approval which are determined by the Development Services Director to be in substantial conformance with the approved site plan, and which do not intensify or change the use or require any deviations from adopted standards, may be approved by the Development Services Director upon submittal of an application and the required deposit or fee. If not appealed, this approval shall become effective on the first business day following the fifteenth (15th) day after the date of the City Council's approval and shall expire twenty-four (24) months after the approval unless the use or occupancy which is the subject of this action has taken place and all conditions of approval have been met, or a time extension has been granted by the City. Any application for an extension of time shall be submitted to the Development Services Department, along with the required deposit or fee, at least ninety (90) days prior to the expiration date of this approval, except as otherwise approved by the Development Services Director. City Council Resolution 17-07-18-01 Final Conditions of Approval CUP 16-008 Shell Alcohol Sales July 18, 2017 Page 2 of 4 2. The retail sale of alcoholic beverages shall be permitted only between the hours of 6:00 am and 11:00 pm each day of the week. Violation of the operating hour restrictions may result in the City initiating revocation proceedings on the Conditional Use Permit and may result in the City filing a formal complaint with the Alcoholic Beverage Control (ABC) Board, which may result in the revocation of ABC license. 3. No alcoholic beverages shall be consumed on the licensed premise or on any property adjacent to the licensed premises under the control of the licensee. 4. The applicant shall post and maintain a placard prohibiting loitering, pursuant to California Penal Code ("CPC") section 647, on the exterior of the premises. In addition, the applicant shall post and maintain a professional -quality sign facing the premises parking lot in substantially the following form: "Possession of unsealed or open containers of ALCOHOLIC BEVERAGES in this parking area or any public street or sidewalk is prohibited, and is subject to criminal prosecution and a fine." a. It shall be the applicant's responsibility to ensure that these prohibitions are complied with at all times that the premises are in operation. 5. No person under the age of twenty-one (21) shall sell or deliver alcoholic beverages. 6. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages on the premises. 7. No alcohol beverage shall be displayed within five feet of the cash register or front door, unless it is in a permanently installed cooler. 8. Alcoholic beverages of beer or malt liquor may not be sold by single containers, regardless of the container size, but must be sold in pre- packaged, multi -unit quantities. 9. The combined alcohol storage and display area shall not exceed five (5) percent of the gross floor area of the store area. 10. The applicant shall be responsible for maintaining the subject property free of litter. 11. Approval of this application does not relieve the applicant from complying with other applicable Federal, State, County or City regulations or requirements. City Council Resolution 17-07-18-01 Final Conditions of Approval CUP 16-008 Shell Alcohol Sales July 18, 2017 Page 3 of 4 12. Surveillance cameras capturing images of the site and adjoining public streets shall be installed by the applicant prior to the sale of beer and wine. The surveillance cameras shall have a 5 -day recorded backup. 13. If Police Services determines there to be a high number of alcohol related incidents on or adjacent to the property, the applicant shall be responsible for providing an on-site security guard on Fridays and Saturday of each week, consecutively from 5:00 p.m. to 11:00 p.m. 14. The applicant shall abide by any directives or notices from Police Services to not sell alcoholic beverages to individuals identified by Police Services as having a history of alcohol abuse. 15. The applicant shall indemnify, protect, defend, and hold the City of San Juan Capistrano, and/or any of its officials (appointed or elected), officers, employees, agents, departments, agencies, and instrumentalities thereof, harmless from any and all allegations, claims, demands, lawsuits, writs of mandamus, and other actions and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and other such procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City, and/or any of its officials, officers, employees, agents, legislative bodies, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval or finding issued by the City and/or any of its officials, officers, employees, agents, legislative bodies, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the Modified Project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with applicant in the defense of the Action. 16. CUP 16-008 shall not be effective unless and until the City has made a determination of public convenience or necessity for the proposed beer and wine sales use. City Council Resolution 17-07-18-01 Final Conditions of Approval CUP 18-008 Shell Alcohol Sales July 18, 2017 Page 4 of 4 17. Prior to any alcohol sales, the applicant must obtain, and then maintain, a Type 20 ABC license as required by the California Department of Alcoholic Beverage Control. A copy of the license shall be submitted to the City of San Juan Capistrano Development Services.