REPORT TO THE PLANNING COMMISSION December 7, 2022 FROM: ISRAEL TREJO, Planning Manager Planning & Development Department THROUGH: RALPH KACHADOURIAN, Supervising Planner Planning & Development Department BY: ERIK YOUNG, Planner II Planning & Development Department SUBJECT ..Title Consideration of an appeal filed regarding Conditional Use Permit Application No. P22-02633, requesting authorization to establish a State of California Alcoholic Beverage Control Type 41 alcohol license (Restaurant - sale of beer and wine for consumption on the premises where sold) for a new Mountain Mike's Pizza restaurant located at 1937 West Clinton Avenue, on the southwest corner of West Clinton and North Weber Avenues. (Council District 3) 1. CONSIDER Environmental Assessment No. P22-02633, dated August 8, 2022, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) through a Class 1 (Existing Facilities) Categorical Exemption; and, 2. DENY the Appellant's appeal and UPHOLD the action of the Planning and Development Department Director to approve Conditional Use Permit Application No. P22-02633 requesting authorization to establish a State of California Alcoholic Beverage Control Type 41 alcohol license (Restaurant - sale of beer and wine for consumption on the premises where sold) for the new Mountain Mike's Pizza restaurant, subject to the following: a. Development shall take place in accordance with the Conditions of Approval for Conditional Use Permit Application No. P22-02633 dated September 2, 2022. ..Body EXECUTIVE SUMMARY Conditional Use Permit Application No. P22-02633, was filed by Sarbjot Singh Mehrok, of KRS Enterprises, Inc., requests authorization to establish a State of California Alcoholic Beverage Control Type 41 alcohol license (Restaurant - sale of beer and wine for consumption on the premises where sold) for a new �3,392 square-foot Mountain Mike's Pizza restaurant with �1,170 square-foot outdoor dining patio area. The subject property is zoned IL (Light Industrial). Pursuant to Table 15-1202 of the Fresno Municipal Code (FMC), a Restaurant with Alcohol Sales is permitted in the IL zone district subject to an approved Conditional Use Permit. Additional provisions under FMC Sections 15-2744 (Outdoor Dining and Patio Areas) and 15-2751 of the FMC (Restaurants with Alcohol Sales, Bars, Nightclubs, and Lounges) also apply. On September 2, 2022, the Director of Planning and Development approved the Conditional Use Permit application based upon the project's compliance with the required findings for conditional use permits pursuant to FMC Section 15-5306 (Exhibit K, Findings). The Director's decision to approve the request was appealed on September 19, 2022 (Exhibit I). Therefore, the subject application is being considered by the Planning Commission. Staff recommends upholding the Director's approval based on substantial evidence in this staff report that shows the new Restaurant with proposed Alcohol Sales is a conditionally permitted use, compliant with all provisions of the Citywide Development Code, and consistent with applicable policies of the Fresno General Plan and Fresno-High Roeding Community Plan which do not contain any specific policies that would restrict the proposed use. Furthermore, the proposal pertains to a new use within an existing building and tenant space. BACKGROUND The subject application is a request to establish a State of California ABC Type 41 alcohol license for purposes of allowing the sale, service, and consumption of alcoholic beverages within a new restaurant. Pursuant to Section 15-6704 (Commercial Use Classifications) of the FMC, Restaurants with Alcohol Sales are classified as Eating and Drinking Establishments. Pursuant to Table 15-1202 of the FMC, a Restaurant with Alcohol Sales is a conditionally permitted use subject to an approved Conditional Use Permit. The additional Standards for Specific Uses and Activities provided under Section 15-2751 (Restaurants with Alcohol Sales, Bars, Nightclubs, and Lounges) of the FMC apply. In addition, the provisions of Section 15-2744 (Outdoor Dining and Patio Areas) of the FMC apply. Hours of Operation The primary operational restriction for Restaurants with Alcohol Sales is a limitation on the hours which alcohol is served. Table 15-2751-G (Special Standards) requires all restaurants to stop sales, service, and consumption of alcohol by 12:00 a.m. Based upon the proposed hours of operation included in the operational statement (close at 11:00 PM), the proposed establishment is in compliance with the type of use per Table 15-2751-G. Pursuant to FMC Table 15-2744-A, the hours of operation for outdoor dining and patio areas for Restaurants with Alcohol sales is limited to no earlier than 7:00 a.m. and no later than 10:00 p.m. when within 100 feet from a residential district and no later than 12:00 a.m. when further than 250 feet from a residential district. The subject establishment is approximately �260 feet from the nearest residential zoned property (measured from the easterly edge of the tenant space to the nearest residential zoned property line located to the east, across North Weber Avenue). Therefore, the proposed establishment and hours of operation for the patio are in compliance with allowed hours of operation identified in Table 15-2744-A of the FMC. Alcoholic Beverage Control (ABC) Regulations In addition to obtaining a Conditional Use Permit from the City of Fresno, the applicant is required to obtain a license from the California Department of Alcoholic Beverage Control (ABC). As such, ABC is awaiting the decision on the subject Conditional Use Permit application. Police Department The Fresno Police Department (FPD) is not in opposition of this conditional use permit provided the applicant agrees to the comments and requirements provided by the FPD on August 3, 2022, as outlined in the Conditions of Approval. The conditions include the installation of security cameras, ABC education and training for those employees who will be serving alcoholic beverages to patrons, and proper signage. The full conditions required by the FPD are included in the conditions of approval for Conditional Use Permit Application No. P22-02633 (Exhibit M). Fresno Unified School District (FUSD) Review The FUSD reviewed the proposed project and provided comments indicating the district did not support this application. Their comment letter, dated July 25, 2022, expressed concerns regarding the Type 41 application and potentially dangerous interactions between students and the proposed location. FUSD indicated their response was subject to the State of California ABC and the Fresno Police Department's review and support of the proposed project. Per the State ABC Act, an alcohol license can be refused by the State if the location is within 600 feet from schools. The project location is approximately 1,550 feet from Homan Elementary School which is about 950 feet further than the State minimum distance requirement. In addition, as mentioned in the Fresno Police Department Review section above, the Fresno Police Department is not in opposition to the project and provided conditional requirements which have been incorporated into the Conditions of Approval dated September 2, 2022. Other Agencies All comments received from the applicable agencies have been incorporated into the conditions of approval for Conditional Use Permit Application P22-02633. See (Exhibit J) for all written agency comments received. Public Notice and Input Council District 3 Project Committee Review On August 9, 2022, the Council District 3 Project Review Committee reviewed this project and voted to recommend approval with no additional comments and/or recommendations. Motion passed by a vote of 4 yes and 0 no. Notice of Intent to Take Action Pursuant to FMC Section 15-5305, the Planning and Development Department mailed a Notice of Intent to Take Action (Exhibit E) - a neighborhood notice, to surrounding property owners within 1,000 feet of the subject site on August 8, 2022, in accordance with FMC Section 15-5007. Only one public comment in opposition was received by District 3 Councilmember Miguel Arias' office. Notice of Action Pursuant to FMC Section 15-5305, the Planning and Development Department sent a Notice of Action (Exhibit E) to the applicant, property owner, and Councilmember on September 2, 2022, in accordance with FMC Section 15-5009. Response to Notice of Action On September 19, 2022, a timely appeal was received by the Planning and Development Department opposing the Director's decision in granting approval of Conditional Use Permit Application No. P22-02633 (Exhibit I). Notice of Planning Commission Hearing In accordance with Section 15-5007 of the FMC, the Planning and Development Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property and to the appellant on November 23, 2022 (Exhibit E). Analysis of the Appeal Letter Issue #1: "There is an oversaturation of liquor licenses within a mile radius." Response: Section 15-2751 of the FMC for restaurants with Alcohol Sales does not regulate the concentration of on-sale alcohol licenses. As such, the number of alcohol licenses, authorized for the on-site consumption of alcohol, is not regulated pursuant to the requirements of the Citywide Development Code. Alcohol Beverage Control has the authority to allow or revoke a license. Under the Alcoholic Beverage Control Act, pursuant to Section 23958 of Business and Professions Code, Alcoholic Beverage Control may deny an application for a license where issuance would result in or add to an undue concentration of licenses. The proposed project is located within the Mid-State Plaza retail/commercial center, which is centered around the existing Vallarta Supermarket. Mid-State Plaza currently has retail food services such as Panda Express, Wing Stop, La Michoacana Plus Ice Cream Parlor, and Starbucks, as well auto insurance, cellular device store, and a shoe store. The Planning and Development Department has not received any indication from ABC, nor does it find (based upon the vision and intent outlined within the General Plan and Fresno High-Roeding Community Plan), that the approval of the subject Conditional Use Permit would result in an undue concentration. LAND USE PLANS AND POLICIES Fresno General Plan The Fresno General Plan designates the subject site for Employment - Light Industrial planned land uses and provides objectives to guide in the development of these projects. The Light Industrial designation is intended to provide areas, as identified by the General Plan, for a diverse range of light industrial uses, including limited manufacturing and processing, research and development, fabrication, utility equipment and service yards, wholesaling, warehousing, and distribution activities. Small-scale retail and ancillary office uses are also permitted. Light Industrial areas may serve as buffers between Heavy Industrial Districts and other land uses and otherwise are generally located in areas with good transportation access, such as along railroads and freeways. The proposed �3,392 square-foot restaurant, and its �1,170 square-foot patio) with the proposed alcohol use occupies a small portion of the site and will be situated between Wing Stop and a vacant suite. The proposed project meets all policies and objectives of the Fresno General Plan, and the following are excerpts of such goal and objective: Goal 1 - Increase opportunity, economic development, business, and job creation. Use urban form, land use, and Development Code policies to streamline permit approval, promote local educational excellence and workforce relevance, significantly increase business development and expansion, retain, and attract talented people, create jobs, and sustained economic growth, strategically locate employment lands and facilities, and avoid over-saturation of a single type of housing, retail, or employment. Objective LU-6 - Retain and enhance existing commercial areas to strengthen Fresno's economic base and site new office, retail, and lodging use districts to serve neighborhoods and regional visitors. Fresno-High Roeding Community Plan Upon reviewing the policies contained in the Fresno-High Roeding Community Plan, staff has determined that there are no policies that are applicable or are more restrictive than those contained in the FMC or the Fresno General Plan. However, pursuant to Section 15-104-B-4 of the FMC, should there be a conflict between the FMC and the Fresno-High Roeding Community Plan, the FMC shall control. FRESNO MUNICIPAL CODE FINDINGS The required findings under Section 15-5306 of the FMC are as follows: a) The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; and, b) The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; and, c) The proposed use will not be substantially averse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; and, d) The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and, e) The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required; and, f) The proposed use is consistent with the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5. Based upon analysis of the application, staff concludes that the required findings made by the Director to approve the special permit under FMC Section 15-5306 (A, B, C, D, E & F) are appropriate. These findings are attached as (Exhibit K). In approving a Conditional Use Permit, the decision-maker may impose reasonable conditions or restrictions deemed necessary to: A. Ensure that the proposal conforms in all significant respects with the General Plan and with any other applicable plans or policies and design guidelines adopted by the City Council. B. Achieve the general purposes of this Code or the specific purpose of the zoning district in which the project is located. C. Achieve the findings for a Conditional Use Permit listed in Section 15-5306, Required Findings; or, D. Mitigate any potential impacts identified as a result of environmental review conducted in compliance with the California Environmental Quality Act. The Conditions of Approval have been added to the project and are outlined in Exhibit N. Conditions are also provided by departments and agencies that reviewed the project. The Fresno Police Department (FPD) is not in opposition provided the applicant agrees to the comments provided by the FPD on August 3, 2022, outlined in the Conditions of Approval. ENVIRONMENTAL FINDINGS The California Environmental Quality Act (CEQA) permits a public agency to determine whether a particular project is exempt from CEQA. A determination of a Categorical Exemption, Section 15332/Class 1 (Existing Facilities) of the CEQA Guidelines was made and Environmental Assessment No. P22-02633 was completed for this project on August 8, 2022. Conditional Use Permit Application No. P22-02633 will allow for the authorization to establish a State of California ABC Type 41 alcohol license (Restaurant - sale of beer and wine for consumption on the premises where sold) for the proposed �3,392 square-foot restaurant with a �1,170 square-foot outdoor patio (Mountain Mike's Pizza). The environmental assessment and review of the above-stated findings is attached hereto as (Exhibit L). None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to the project. No potential cumulative or significant effects will result from the project. The proposed project will not result in damage to scenic resources. The project is not located on land identified as a hazardous waste site on any list compiled pursuant to Section 65962.5 of the Government Code. There are no historic resources on the subject property for which the project may cause a substantial adverse change in significance. Therefore, the proposed project is not determined to have a significant effect on the environment. A categorical exemption, as noted above, has been prepared for the project and the area is not environmentally sensitive. CONCLUSION The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan and Fresno-High Roeding Community Plan, and Design Guidelines; its compatibility with surrounding existing or proposed uses; and its avoidance or mitigation of potentially significant adverse environmental impacts. These factors have been evaluated as described above and by the accompanying environmental assessment. Upon consideration of this evaluation, it can be concluded that Conditional Use Permit Application No. P22-02633, to establish a State of California ABC Type 41 alcohol license (Restaurant - sale of beer and wine for consumption on the premises where sold) for the proposed �3,392 square-foot restaurant with �1,170 square-foot outdoor patio (Mountain Mike's Pizza) is appropriate for the project site. Staff recommends that the Planning Commission deny the appeal and uphold the action of the Director as previously described in this staff report. Action by the Planning Commission is final unless appealed to City Council in accordance with Section 15-5017 of the FMC. Attachments: Exhibit A - Vicinity Map Exhibit B - Aerial Photograph Exhibit C - Zoning Map Exhibit D - Project Information Tables Exhibit E - Noticing Map Exhibit F - Master Application/Owner's Letter of Authorization Exhibit G - Operational Statement Exhibit H - Exhibits (Site Plan, Elevations, Floor Plans) Exhibit I - Appeal Letter Exhibit J - Department/Agency Comments Exhibit K - Fresno Municipal Code Findings Exhibit L - Environmental Assessment Exhibit M - Conditions of Approval [9-2-2022]