REPORT TO THE PLANNING COMMISSION March 2, 2022 FROM: MIKE SANCHEZ, Assistant Director Planning & Development Department THROUGH: MCKENCIE PEREZ, Supervising Planner Development Services Division BY: STEVEN LIENG, Planner II Development Services Division SUBJECT ..Title Consideration of Conditional Use Permit Application No. P21-04835, requesting authorization to establish a State of California Alcoholic Beverage Control Type 47 alcohol license (Restaurant - sale of beer, wine, and distilled spirits for consumption on the premises where sold) for an existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina). The proposed project is located at 805 East Olive Avenue, on the northwest corner of East Olive and North Wishon Avenues. (Council District 1) - Planning & Development Department. Based upon the evaluation contained in this report and appeal received from the appellant, staff recommends that the Planning Commission take the following actions: 1. CONSIDER Environmental Assessment No. P21-04835, dated January 13, 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. P21-04835 requesting authorization to establish a State of California Alcoholic Beverage Control Type 47 alcohol license (Restaurant - sale of beer, wine, and distilled spirits for consumption on the premises where sold) for the existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina). ..Body EXECUTIVE SUMMARY Conditional Use Permit Application No. P21-04835 was filed by Jose Aguilar of CDT Cocina. The applicant requests authorization to establish a State of California Alcoholic Beverage Control Type 47 alcohol license (Restaurant - sale of beer, wine, and distilled spirits for consumption on the premises where sold) for an existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina). The subject property is zoned CMS (Commercial - Main Street). Pursuant to Table 15-1202 of the Fresno Municipal Code (FMC), a Restaurant with Alcohol Sales is permitted in the CMS zone district subject to an approved Conditional Use Permit. Additional provisions under Section 15-2751 of the FMC (Restaurants with Alcohol Sales, Bars, Nightclubs, and Lounges) apply. On January 13, 2022, the Planning and Development Department Director 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 M, Findings). The Director's decision to approve the request was appealed by an appellant on January 25, 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 existing 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, Fresno-High Roeding Community Plan, and the Tower District Specific Plan, which do not contain any specific policies that would restrict the proposed use. Furthermore, the proposal pertains to an existing use within an existing building and tenant space, with no improvements proposed to the project site or to the building exterior. Therefore, any design guidelines required by the CMS zone district do not apply. BACKGROUND The subject application is a request to establish a State of California ABC Type 47 alcohol license for purposes of allowing the sale, service, and consumption of alcoholic beverages within an existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina). The subject property is zoned CMS (Commercial - Main Street). Pursuant to Section 15-6704 (Commercial Use Classifications) of the FMC, Restaurants with Alcohol Sales are classified as Eating and Drinking Establishment uses. Pursuant to Table 15-1202 of the FMC, a Restaurant with Alcohol Sales is permitted in the CMS zone district subject to an approved Conditional Use Permit. The additional Standards for Specific Uses and Activities provided at 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. 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 October 14, 2021, as outlined in the Conditions of Approval. The conditions include requests that the applicant attempt to prevent/combat crime through environmental & structural design (i.e., limit dark hidden areas that make it difficult for law enforcement to access quickly), provide sufficient lighting for the business, particularly in the parking and common areas. The FPD also conditioned the applicant to provide security cameras in these areas including the entrance and exit areas. The full conditions required by the FPD are included in the conditions of approval for Conditional Use Permit Application No. P21-04835 (Exhibit O). 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 September 27, 2021, expressed concerns regarding the Type 47 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 1,640 feet from Muir Elementary School which is more than 1,040 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 January 13, 2022. Other Agencies All comments received from the applicable agencies have been incorporated into the draft conditions of approval for Conditional Use Permit Application P21-04835. See (Exhibit K) for all written agency comments received. Public Notice and Input Council District 1 Project Committee Review The Council District 1 Project Review Committee reviewed this project on October 7, 2021 and voted to recommend approval with no additional comments and/or recommendations. Motion passed by a vote of 5 yes and 1 no. Tower District Specific Plan Design Review Committee The Tower District Specific Plan Design Review Committee reviewed this project on December 28, 2021, and voted to recommend approval of the project with the following recommendation: The applicant/business owner have a minimum of nine (9) designated parking spaces written into the lease agreement. A Motion was made by Committee Member Renteria and Seconded by Committee Member Brenner. Motion passed by a vote of 6 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) to surrounding property owners within 1,000 feet of the subject site on December 3, 2021, in accordance with FMC Section 15-5007. One letter was received by the protestor. Notice of Action Pursuant to FMC Section 15-5305, the Planning and Development Department sent a Notice of Action (Exhibit E) to the protestor, applicant, and property owner on January 13, 2022, in accordance with FMC Section 15-5009. Response to Notice of Action On January 25, 2022, a timely appeal was received by the Planning and Development Department opposing the Director's decision to grant the approval of Conditional Use Permit Application No. P21-04835 (Exhibit I). Applicant Response to Appellant On January 26, 2022, the applicant submitted a letter responding to the appellants concerns (Exhibit J). 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 appellant on February 18, 2022 (Exhibit L). One comment has been received as of February 18, 2022. Analysis of the Appeal Letter Issue #1: Lack of required parking for the restaurant. The Appellant expressed concern that there were no designated spaces for the business and there would be conflicts with the Adventure Church Operations. Response: An existing restaurant requesting to obtain an ABC license to sell alcohol within the existing building does not trigger the Applicability provisions of Section 15-2402 of the FMC pertaining to parking and loading requirements. A restaurant use with alcohol sales is not classified as a new land use on-site and does not constitute an expansion of previously established uses. Pursuant to Table 15-1202 and Section 15-6704 (Commercial Use Classifications) of the FMC, Restaurants with or without Alcohol Sales are both classified as Eating and Drinking Establishment uses; and the addition of alcohol sales to an existing restaurant does not change the use of the classification. The existing restaurant occupies a space previously occupied by Palomino's, a full-service restaurant with alcohol sales. If parking were to become a requirement for this establishment it would be in accordance with the CMS (Commercial - Main Street) zone district. Pursuant to Table 15-2408: Required On-Site Parking Spaces, Mixed-Use Districts and CMS District, a Restaurant is typically required to provide one parking space per 600 square feet of building area. All other Non-Residential uses are also required to provide one space per 600 square feet. For the parking analysis of this site, staff relied heavily on the current development code, aerial photographs, and measurements of the existing building square footage. The Sequoia Brewing Co. building is approximately 5,600 square feet in area, Me-N-Ed's is approximately 2,700 square feet in area and lastly the Tower Theatre is approximately 20,000 square feet in area. In total, the site has approximately 28,300 square feet of building area. Based upon the required parking ratio for the CMS zone district, one parking space per 600 square feet of the total 28,300 square feet of building area, equates to 47 required parking spaces on the subject property. The subject property currently provides 130 on-site parking spaces. In addition, street parking along the frontage is also available subject to a two-hour time limit between the hours of 9 a.m. and 6 p.m. Therefore, pursuant to the provisions of the FMC, the minimum required parking would be met. While the proposal pertains to an existing restaurant within an existing tenant space of an existing building, that was previously occupied by the same Restaurant with alcohol sales use. Notwithstanding, it should be noted that Parking Exceptions are provided at Section 15-2412 of the FMC. The parking area or space requirements imposed by the provisions of the Citywide Development Code, do not apply upon a Change of Occupancy or a change of use for any building or structure with was either constructed prior to February 13, 1954, or is older than 30 years old (respective to the latter, so long as the parking area or space is not reduced). The Tower Theater building was constructed in 1939. The proposed project will not reduce either the existing parking area or spaces on the subject property nor will it expand building area. It should also be noted that the provisions of Section 15-104-F of the FMC for Designated Historic Properties are also applicable. Any building or structure, including signs, which are identified and designated as a Historic Resource pursuant to the Historic Preservation Ordinance, may, at the discretion of the Review Authority and upon advice from the City Historic Preservation Specialist, be exempted from any and all property development standards of this Code, with the exception of those rules and regulations imposed in relation to an airport plan. Despite the fact that the project meets the parking requirements of the Fresno Municipal Code, the Planning and Development Department Director (or Planning Commission in consideration of an appeal), as the Review Authority per the provisions of the Fresno Municipal Code, has discretion to waive any and all property development standards for the use or improvement of the Tower Theater (a designated local and national historic resource); this includes parking requirements. Finally, the Tower District Design Guidelines also acknowledge, due to its mixed-use area and walkable nature, that parking should be addressed differently in the Tower District than other areas within the City. Due to the fact that a large majority of visitors arrive in the district through a form of transportation to park once, and then proceed to walk from destination to destination thereafter; in contrast to suburban locations, where visitors have to drive and re-park from destination to destination. With this information, the Guidelines provide recommended exceptions and limitations to the parking requirements. In summary, the project location is within an area for which adopted plans recommend addressing parking differently due to the mixed-use and walkable nature. The Parking and Loading provisions of Article 24, Chapter 15 of the FMC are not applicable to the circumstances of the proposed project pursuant to Section 15-2402 of the FMC. Notwithstanding, the minimum on-site parking requirements otherwise applicable are met; the location would meet the requirements to qualify for the exception provisions of the FMC that would otherwise be applicable upon a Change of Occupancy or change of use; and the location is otherwise eligible for waivers of all development standards due to its designation as an historic property (for which opportunities for use and occupancy should generally be encouraged). Issue #2: There is concern for allowing a restaurant with alcohol sales in the same building structure with a church childcare operation. Response: The FMC does not contain location restrictions for a restaurant with alcohol sales that is within close proximity to a church or day care. Restrictions to establish an ABC license are provided in Section 15-2706 of the FMC and are only applicable to establishments that sell alcoholic beverages for off-site consumption. This project is proposing the sale of alcoholic beverages for on-site consumption. The ABC does have state regulations which outline proximity requirements. Pursuant to Section 23789 of the California Code Business and Professions Code, on-sale retail licenses for premises located near churches, hospitals, schools and public playgrounds, or nonprofit youth facilities: (A) The department (ABC) is specifically authorized to refuse the issuance, other than renewal or ownership transfer, or any retail licenses for premises located within the immediate vicinity of churches and hospitals. (B) The department (ABC) is specifically authorized to refuse the issuance, other than renewal or ownership transfer, of any retail license for premises located within at least 600 feet of schools and public playgrounds or nonprofit youth facilities, including, but not limited to, facilities serving Girl Scouts, Boy Scouts, or Campfire Girls. The distance shall be measured pursuant to the rules of the Department (ABC). Therefore, there are no proximity or separation requirements of the FMC which apply to the project and the project can be found to be consistent with applicable provisions of the FMC. While the City the authority to review and approve a conditional use permit. The provisions of the California Business and Professions Code fall under the review authority of ABC. As such, there is potential for a conditional use permit for alcohol sales to be approved by the City, but the actual license denied by ABC. In addition, ABC will deny a license when there is evidence that normal operation of the licensed premise will be contrary to public welfare and morals. Based on this information, and information contained within this report, there is no substantial evidence to deny the conditional use permit. Planning and Development Department staff found no licensed Child Care facilities registered to the subject property (e.g., Infant Centers, School Age Child Care Centers, Pre-schools, etc.) with the State of California Department of Social Services. Issue #3: There will be an oversaturation of liquor licenses along Olive Avenue. Response: As previously stated, FMC Section 15-2751 of the FMC for restaurants with Alcohol Sales does not regulate the concentration of on-sale alcohol licenses. The tenant space was previously occupied by a restaurant with alcohol sales. The Alcohol Beverage Control Department has the authority to allow or revoke a license. Under the Alcoholic Beverage Control Act, pursuant to Section 23958 of Business and Professions Code, the Alcoholic Beverage Control Department may deny an application for a license where issuance would result in or add to an undue concentration of licenses. The City supports the vision for the future of the Tower District outlined within the Specific Plan and Design Guidelines. As stated in the Guidelines, residents of the Tower District envision it growing and evolving, just as it did during its first 40 years of existence, into an area that has even more vitality, more street life, more goods and services, more pleasurable public spaces, and more beautiful architecture. Most importantly, the Tower District has always been-and should continue to be-a little different from the rest of Fresno. The proposed project is located at the very heart and core of the Tower District, which is one of the most people-friendly and walkable areas in Fresno. This is due to the small scale of buildings, their positive presence on the street, and the activities and uses that exist there. The Tower District is a vibrant entertainment and arts center, with several performance theaters, music clubs, restaurants, bars, cafes, and other entertainment uses clustered along Olive and surrounding streets. The City has invested capital towards street improvements and should continue to support these businesses and facilitate the cultural events and activities that attract people to the area 24/7. 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 Tower District Specific Plan Guidelines), that the approval of the subject Conditional Use Permit would result in an undue concentration. Issue #4: There were concerns that adequate noticing was not given to the public. Response: Staff has complied with noticing requirements of Section 15-5007 of the FMC for the Notice of Intent to Take Action and Notice of Action required for conditional use permits. Mailed notices are required to be sent to surrounding property owners within 1,000 feet of the property. Notices were mailed out as required. The agendas for the District Advisory (October 7, 2021) and Tower Committees (December 28, 2021) were posted on the City Clerk's website six days prior to each respective meeting, which is consistent with the minimum 72-hour requirements of the Brown Act. Therefore, staff has complied with the noticing requirements of the FMC. LAND USE PLANS AND POLICIES Fresno General Plan The Fresno General Plan designates the subject site for Commercial - Main Street planned land uses and provides objectives to guide in the development of these projects. The Commercial - Main Street designation is intended to preserve or promote small-scale, fine-grain commercial development in neighborhoods where single-family residential and townhomes are predominant. A traditional "Main Street" character is achieved with active storefronts, outdoor seating, and pedestrian-oriented design. The existing �1,580 square-foot restaurant with the proposed alcohol use occupies a small portion of the site and fronts the Olive Avenue corridor which falls within the intent of the Commercial - Main Street designation. The proposed project meets all policies and objectives of the Fresno General Plan. The following are excerpts of such objectives. 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. Tower District Specific Plan Upon reviewing the policies contained in the Tower District Specific Plan, staff has determined that there are no policies that are applicable or more restrictive than those contained in the FMC or the Fresno General Plan (pursuant to Section 15-104-B-4 of the FMC, should there be a conflict between the FMC and the Tower District Specific Plan, the FMC shall control). However, as stated above, the City supports the vision for the future of the Tower District outlined within the Specific Plan and Design Guidelines. As stated in the Guidelines, residents of the Tower District envision it growing and evolving, just as it did during its first 40 years of existence, into an area that has even more vitality, more street life, more goods and services, more pleasurable public spaces, and more beautiful architecture. Most importantly, the Tower District has always been-and should continue to be-a little different from the rest of Fresno. The proposed project is located at the very heart and core of the Tower District, which is one of the most people-friendly and walkable areas in Fresno. This is due to the small scale of buildings, their positive presence on the street, and the activities and uses that exist there. The Tower District is a vibrant entertainment and arts center, with several performance theaters, music clubs, restaurants, bars, cafes, and other entertainment uses clustered along Olive and surrounding streets. The City has engaged in public charettes, invested capital towards street improvements for this purpose, and should continue to support businesses and facilitate the cultural events and activities that attract people to the area 24/7. Pursuant to Section 15-104-B-4 of the FMC, should there be a conflict between the FMC and the Tower District Specific Plan, Design Guidelines, the adopted Design Guidelines 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 M). 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 O. Conditions are also provided by departments and agencies that reviewed the project. The Fresno Police Department (FPD) is not in opposition of this conditional use permit provided the applicant agrees to the comments provided by the FPD on October 14, 2021, 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. P21-04835 was completed for this project on January 13, 2022. Conditional Use Permit Application No. P21-04835 will allow for the authorization to establish a State of California ABC Type 47 alcohol license (Restaurant - sale of beer, wine, and distilled spirits for consumption on the premises where sold) for the existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina). The environmental assessment and review of the above-stated findings is attached hereto as (Exhibit N). 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, Fresno-High Roeding Community Plan and Tower District Specific 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. P21-04835, a request of authorization to establish a State of California ABC Type 47 alcohol license (Restaurant - sale of beer, wine, and distilled spirits for consumption on the premises where sold) for the existing �1,580 square-foot restaurant with �650 square-foot outdoor patio (CDT Cocina) 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, Notice of Intent to Take Action & Notice of Action Exhibit F - Master Application/Owner's Letter of Authorization Exhibit G - Operational Statement Exhibit H - Exhibits (Site Plan, Elevation Photos, Floor Plans) Exhibit I - Appeal Letter Exhibit J - Applicant Response Letter to Appeal Exhibit K - Department/Agency Comments Exhibit L - Public Hearing Notice Exhibit M - Fresno Municipal Code Findings Exhibit N - Environmental Assessment Exhibit O - Conditions of Approval