Staff Report and Asst. Attachments: Livingston Municipal Code Concerning Alcohol by the Glass in the Downtown Commercial District (DTC) as Recommended by the Planning Commission.

Note: This document was produced by taking a scanned image of the original document and running it through a program that “translates” image into text. So, sorry if there are any Goofs, Gaffs, Glitches and/or other Textual Gremlins. 

STAFF REPORT

AGENDA ITEM: Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston Modifying Title 5, Chapter 3, Table 3, of the Livingston Municipal Code Concerning Alcohol by the Glass in the Downtown Commercial District (DTC) as Recommended by the Planning Commission.

MEETING DATE: May 3, 2011

PREPARED BY: Donna M. Kenney, Community Development Director

REVIEWED BY: Victoria Lewis, Interim City Manager

RECOMMENDATION:

Introduce and waive the first reading of an Ordinance of the City Council of the City of Livingston Modifying Title 5, Chapter 3, Table 3, concerning alcohol by the glass in the Downtown Commercial District (DTC) as recommended by the Planning Commission.

BACKGROUND AND DISCUSSION:

City staff has received several inquiries from individuals interested in opening a new club in the former Tequila Club location at 444 Main Street. Club dancing is regulated by LMC 3-12 which has a yearly City licensing fee of $1,000 for music (for profit) in addition to the business licenses necessary for both the club and the band or DJ. LMC 5-3 Table 3 indicates a Conditional Use Pen-nit (CUP) is required for a Bar/Cocktail Lounge use plus there is a footnote specifically for the DTC zone, Footnote 1.

LMC 5-3, Table 3, Footnote 1 (adopted August 16, 2005) states:

“All retail establishments serving alcoholic beverages for consumption on premises within the Downtown Commercial District (DTC) shall be no closer than two City blocks between similar establishments. Two City blocks for purposes of this Title shall consist of 1,000 feet measured in all directions from an existing retail establishment serving alcoholic beverages for consumption on premises.”

The previous version of the zoning code, adopted May 14, 1981 required a Conditional Use Permit for all commercial uses that served alcohol by the glass but did not have the two City blocks footnote
requirement above. Staff research found there are currentl y four businesses in the DTC with active liquor
licenses that permit alcohol by the glass (License Type 41): La Esperanza (1998); Punjab Sweets (2006);

Mountain Mike’s Pizza (2007); and El Taco Burger (2008 ). Staff has verified that La Esperanza and El Taco Burger each have a CUP. California Alcoholic Beverage Control (ABC) issued a license to El Taco Burger in early 2008 without notifying the City and their CUP was processed retroactively in De cember 2008. Since the former Tequila Club (444 Main) is located next to Punjab Sweets (436 Main) which has an active alcohol by the glass license, it has been unable to reopen as a club use.

At their regular meeting of March 15, 2011 Council directed staff to bring back a Resolution of Intent toplace this item on an upcoming Planning Commission agenda so that the Commission could make recommendation on the amendments in public hearing and could determine General Plan consistency of the proposed amendments. At their regular meeting of April 5, 2011 the City Council approved Resolution of Intent 2011-23 by a 5-0 vote.

The Planning Commission heard this item in public hearing at their regular meeting of April 12, 2011.

The public notice for this meeting was included in the approximately 3,100 City water bills that were mailed out March 31, 2011. After public comment and discussion, the Planning Commission by 3-0 voted to recommend to the Council removing Footnote 1 and modifying Table 3 to include: and all other uses/establishments serving alcoholic beverages for consumption on premises in the “Bar, Cocktail Lounge” table row as needing a Conditional Use Permit. This would then include restaurants and cafes who wish to serve alcohol by the glass, among other uses in requiring Planning Commission review under the Conditional Use Permit process.

GENERAL PLAN CONSISTENCY:

The removal of Footnote 1 (and renumbering of subsequent footnotes) and the modification of the “Bar, Cocktail Lounge” chart row is consistent with adopted 1999 General Plan and 2025 General Plan Update Commercial Land Use Policy 3.1 A 6: The Conditional Use Permit process with its four findings required for approval shall be used where site conditions or project location will affect land use compatibility. The four findings for a CUP approval are:

1. The site for the proposed use is adequate in size and shape to accommodate said use and all walls, spaces, walls and fences, parking, loading, landscaping, and other features required by the
applicable zoning district.

2. The site for the proposed use is served by streets and highways adequate to carry the quantity and kind of traffic generated by the proposed use.

3. Public facilities are currently adequate to serve the proposed use or improvements are included in an approved Capital Improvement Plan or otherwise will be completed prior to the issuance of
building permits.

4. The proposed development is consistent with the General Plan.

By using the Conditional Use Process above, the Planning Commission can determine on a case-by-case basis if an alcohol by the glass use is compatible with the neighborhood in which it desires to locate. It is important to note that these amendments if approved would apply to all similar uses in the DTC zone, not just to one currently vacant building.

ENVIRONMENTAL ANALYSIS:

The proposed amendments to the Zoning Ordinance are exempt from California Environmental Quality Act (CEQA) requirements pursuant to Section 15183 of the CEQA Guidelines (California Code of Regulations) as there are no new impacts that were not addressed in the 1999 General Plan EIR and 2025 General Plan EIR. The proposed activity is within the 1999 General Plan and 2025 General Plan Update and the program EIRs adequately de scribe the proposed activity for the purposes of CEQA. All applicable mitigation measures in the 1 999 General Plan E IR and 2025 General Plan E1R applies to this project.

FISCAL IMPACT:

The fiscal impact is unknown at this time but may include consideration of the following variables: Conditional Use Permit fees to the City, new business license fees to the City, and possibly enhanced Police presence and enforcement costs.

ATTACHMENTS:

1.Ordinance 2011-,

Exhibit A – Modified LMC 5-3 Table 3

2.Planning Commission Resolution 2011-01

Exhibit A – Modified LMC 5-3 Table 3

Exhibit B – City Council Resolution of Intent 2011-23

3.LMC 5-3

ORDINANCE NO.

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON

AMENDING TITLE 5, CHAPTER 3, TABLE 3, OF THE LIVINGSTON MUNICIPAL
CODE CONCERNING RETAIL ESTABLISHMENTS SERVING ALCOHOLIC
BEVERAGES FOR CONSUMPTION ON PREMISES WITHIN THE

DOWNTOWN COMMERCIAL ZONING DISTRICT

WHEREAS, the City Council desired Planning Commission review the possible amendment to Title 5 of the Livingston Municipal Code (LMC) relating to retail establishments serving alcoholic beverages for consumption on premises within the Downtown Commercial District (DTC); and

WHEREAS, specifically, the Planning Commission was asked to review a possible amendment to Title 5, Chapter 3, Table 3 – Land Use – Commercial Zoning, Footnote 1, which would remove the following
requirement:

“All retail establishments serving alcoholic beverages for consumption on premises
within the Downtown Commercial District (DTC) shall be located no closer than two City blocks between similar establishments. Two City blocks for purposes of this Title shall consist of 1,000 feet measured in all directions from an existing retail establishment serving alcoholic beverages for consumption on premises.”

WHEREAS, on April 12, 2011, the Planning Commission held a properly noticed public hearing at which it received a report from City Staff as well as oral and written testimony from the public, and deliberated on the item. At that meeting the Planning Commission recommended the City Council adopt the LMC Amendments as attached in Exhibit A; and

WHEREAS, the Planning Commission recommended the removal of Footnote 1 of LMC Title 5, Table 3 “Commercial Zoning,” and also recommended the phrase “and all other uses/establishments serving alcoholic beverages for consumption on premises” be added to the “Bar, Cocktail Lounge” line of Table 3 in order to include restaurants, cafes and similar uses proposing to serve alcohol for onsite consumption. The recommendation would require a Conditional Use Permit (CUP) for any establishment proposing to serve alcohol for onsite consumption in all four Commercial Zoning Districts; and

WHEREAS, the City Council public hearing was noticed in accordance with the requirements set forth in Government Code sections 65090 and 65091.

THE CITY COUNCIL OF THE CITY OF LIVINGSTON, CALIFORNIA does ordain as follows: SECTION 1. Recitals. The foregoing recitals are true and correct and made a part of this Ordinance. SECTION 2. Findings. The City Council hereby finds as follows:

A. CEQA Compliance. The proposed amendments to the Zoning Ordinance are exempt from California Environmental Quality Act (CEQA) requirements pursuant to Section 15183 of the CEQA Guidelines (California Code of Regulations) as there are no new impacts that were not addressed in the 1999 General Plan Environmental Impact Report (EIR) and 2025 General Plan EIR. The proposed activity is within the 1999 General Plan and 2025 General Plan Update and the program EIRs adequately describe the proposed activity for the purposes of CEQA. All applicable mitigation measures in the 1999 General Plan FIR and 2025 General Plan EIR applies to this project.

B. General Plan Consistency. The removal of Footnote 1 (and renumbering of subsequentfootnotes) and the modification of the “Bar, Cocktail Lounge” chart row is consistent with adopted 1999 General Plan and 2025 General Plan Update Commercial Land Use Policy 3.1A 6: The Conditional Use Permit process with its four findings required for approval shall be used where site conditions or project location will affect land use compatibility. The proposed amendment does change the intent of the regulations nor deviate from the consistency with the other goals and policies of the Land Use Element. The four findings for a CUP approval are:

1. The site for the proposed use is adequate in size and shape to accommodate said use and all walls, spaces, walls and fences, parking, loading, landscaping, and other features required by the applicable zoning district.

2. The site for the proposed use is served by streets and highways adequate to carry the quantity and kind of traffic generated by the proposed use.

3. Public facilities are currently adequate to serve the proposed use or improvements are included in an approved Capital Improvement Plan or otherwise will be completed prior to the issuance of building permits.

4. The proposed development is consistent with the General Plan.

The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City. By using the Conditional Use Process above, the Planning Commission can determine on a case-by-case basis if an alcohol by the glass use is compatible with the neighborhood in which it desires to locate.

SECTION 3. Amendments. The Zoning Ordinance of the City of Livingston, Sections 5-3 Table 3, is hereby amended as set forth Exhibit A. These amendments are in conformance with the Livingston Planning Commission recommendation at a public hearing held April 12, 2011, and City Council actions at public hearings held on May 3, 2011 and May 17, 2011.

The amendment will remove Footnote 1 of LMC Title 5, Table 3, entitled “Land Use – Commercial Zoning,” and add the following language to the “Bar, Cocktail Lounge” line of Table 3: “and all other uses/establishments serving alcoholic beverages for consumption on premises.”

SECTION 4. No Mandatory Duty of Care. This ordinance is not intended to and shall not be

construed or given effect in a manner that imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or parties within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise provided by law.

SECTION 5. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of the ordinance are severable. This city council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof.

SECTION 6. Effective Date. This ordinance shall become effective thirty (30) days after its final passage and adoption.

Introduced: May 3, 2011

Passed and Adopted: May 17, 2011

RODRIGO E SPINOZA, Mayor


of the City of Livingston

ATTEST:

State of California)
County of Merced)
City of Livingston )

I hereby certify that the foregoing Ordinance was duly introduced at a Regular Meeting of the City Council of the City of Livingston on the 3`d day of May, 2011, and was passed and adopted at a Regular Meeting of the City Council of the City of Livingston this 17th day of May 2011, by the following vote:

AYES:

NOES:

ABSENT:

ANTONIO SILVA, City Clerk of the City of Livingston

RESOLUTION 2011-01

RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF LIVINGSTON

RECOMMENDING MODIFICATION

RECOGNIZING CONSISTENCYOFTHE AMENDMENT WITH THE LIVINGSTON

GENERAL PLAN

WHEREAS, the City Council desired Planning Commission review of an amendment to amend, repeal, or replace a section of Title 5 of the Livingston Municipal Code (LMC) so that alcohol by the glass uses will no longer be required to be a minimum of 1,000 feet apart pursuant to Footnote 1 of Table 3 Commercial Zoning, and renumber the subsequent footnotes (Exhibit A);

and

WHEREAS, Livingston Municipal Code Section 5-6-2 (B) 2 requires that the City Council approve a Resolution of Intent to initiate an amendment to the zoning ordinance; and

WHEREAS, at their regular meeting of April 5, 2011 the City Council approved a Resolution of Intent to initiate said amendment to the zoning ordinance (Exhibit B); and

WHEREAS, Livingston Municipal Code Section 5-6-2 (A) states that City zoning regulations shall be consistent with the General Plan in accordance with State Government Code, Section 65860 and the Planning Commission determines General Plan Consistency pursuant to 5-6-2 (D);
and

WHEREAS, the Planning Commission, having reviewed the proposed amendment at a duly

noticed public hearing on April 12, 2011 recommends the removal of LMC Title 5, Footnote 1 of Table 3 Commercial Zoning and has determined this amendment is consistent with Livingston General Plan Land Use Policy 3. lA 6: The Conditional Use Permit process with its four findings required for approval shall be used where site conditions or project location will affect land use compatibility; and

WHEREAS, the Planning Commission also recommends the phrase “and all other uses/establishments serving alcoholic beverages for consumption on premises” is added to the “Bar, Cocktail Lounge” line of Table 3 to include restaurants, cafes and similar uses proposing to serve alcohol for consumption on premises. The recommendation would require a Conditional Use Permit for any establishment proposing to serve alcohol for on-site consumption in all four Commercial Zoning Districts; and

WHEREAS, the proposed amendment to the Ordinance is exempt from California Environmental Quality Act (CEQA) requirements pursuant to Section 21083.3 of the Public Resources Code as there are no new impacts that were not addressed in the 1999 General Plan EIR AND 2025 General Plan Update EIR. As each new alcohol-by-the-glass use applies for its required Conditional Use Permit, it will be reviewed by staff for environmental impacts such as parking and traffic among others.

I

NOW, THEREFORE, BE IT RESOLVED, that the Planning Commission adopts Resolution 2011-01, recommending that the City Council amend LMC 5-3, as provided for in attached
Exhibit A, and f -Inds that the amendment to LMC 5-3 is consistent with the 1999 General Plan and 2025 General Plan Update.

The foregoing resolution was-introduced and moved for adoption on April 12, 2011, by Commissioner Harpreet Bains, and being duly seconded by Vice-Chair Mendoza, was passed by the following vote:

AYES: Chair Flores, Vice-Chair Mendoza, and Commissioner H. Bains

NOES: None

ABSENT: Commissioner Soria and Alternate Commissioner M. Bains

ABSTAIN: None

Secretary of the Planning Commission 
DONNA M. KENNEY

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