ITEM 9-C
Council Mtg: March 24, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Recommendation to Direct the City Attorney to Prepare
An Ordinance Deleting Section 9049.4 of Subchapter 5J
of the Zoning Ordinance (Section 9049.4 Provides an
Exemption For Bona Fide Restaurants of 49 Seats Or Less
From the Requirement For A Conditional Use Permit To
Sell Alcoholic Beverages). Consideration May Also Be
Given to Creation of Alternative Methods of Regulating
Small, Bona Fide Restaurants.
INTRODUCTION
This report recommends that the City Council consider the
Planning Commissions recommendation to delete Section 9049.4 of
Subchapter 5J of the Zoning Ordinance, and therefore eliminate
the exemption from Conditional Use Permit provisions for
specified classes of alcohol outlets. Although the Commission's
consideration of the comprehensive alcohol-related amendments is
still pending, the Commission is recommending that the change to
the exemption process be implemented in advance of the
comprehensive amendments.
BACKGROUND
On November 6, 1991, the Planning Commission approved a
Resolution of Intention (Attachment A), which declared the
Commission's intention to consider a recommendation that the City
Council delete Section 9049.4 of Subchapter 5J of the Zoning
Ordinance. Deletion of the exemption provision would require
that all new restaurants proposing to sell alcoholic beverages
obtain a Conditional Use Permit. On January 22, 1992, the
Planning Commission voted to recommend approval of the proposed
Text Amendment to the City Council by a vote of five to two.
Staff had recommended deletion of the CUP Exemption, but had
suggested utilization of a Zoning Administrator Use Permit for
small, bona fide restaurants with less then 50 seats.
ANALYSIS
Section 9049.2 of the Zoning Ordinance states that a Conditional
Use Permit is required in order for any new business to obtain an
alcohol license for on-site or off-site sales of alcohol.
Section 9049.4 of the Zoning Ordinance gives the Zoning
Administrator the authority to grant an Exemption from the
requirements for a Conditional Use Permit for restaurants or
"bona fide" public eating places which meet certain criteria.
Among these criteria are the requirements that the establishment
be a sit-down restaurant with no bar area, no off-site sales, no
dancing or entertainment and no more than 50 seats.
In the past two years, approximately 20 Alcohol Exemptions have
been applied for and approved by the Zoning Administrator. The
approval of these applications has been considered a
"non-discretionary" action, based on the applicant's compliance
with the criteria for approval. Recently however, the City
Attorney indicated that there is greater discretion to deny
Exemptions, but that given the lack of clarity in the Exemption
section, denial of projects meeting the exemption criteria may,
in some cases, be problematic. Due to the number of alcohol
outlets in the City, the Planning Commission has raised the issue
of the appropriateness of the Exemption process for alcohol
outlets.
On March 4, 1992, the Planning Commission considered an appeal
filed by Commissioner Jennifer Polhemus regarding the Zoning
Administrators issuance of an Alcohol Exemption for Earthbeat
Bistro, a 50 seat restaurant proposed at 1232 Third Street
Promenade. The Commission denied the appeal and upheld the
Exemption by a vote of five to one, with one abstention. In
approving the Exemption, the Commission added several conditions
of approval from the standard list of conditions used for alcohol
related Conditional Use Permits. The City Attorney's office has
indicated that the Zoning Administrator, or Planning Commission
on appeal, may add conditions of approval to Alcohol Exemptions.
Previously, the Commission upheld the approval of an Alcohol
Exemption for the "Cock and Bull" on Lincoln Boulevard, and
denied an Alcohol Exemption for the lunch counter at Newberry's
on Wilshire Boulevard.
Deletion of the Alcohol Exemption would result in the requirement
that all new alcohol outlets, regardless of size or mode of
operation, require approval of a Conditional Use Permit by the
Planning Commission, or City Council on appeal. In approving the
Conditional Use Permit, the Planning Commission must make the
standard alcohol findings (Attachment B), and may impose
conditions on the operation of the establishment. The
elimination of the exemption would give the Planning Commission
control over the issuance of alcohol license for all outlets,
including small restaurants. In doing so, this would also
increase the number of Conditional Use Permit applications on the
Planning Commission case load.
One of the concerns regarding the use of the alcohol exemption
appears to be the fact that the approval of the exemption is
substantially non-discretionary if the establishment meets the
criteria cited in Section 9049.4 (Attachment C). As an
alternative to the existing exemption process, staff had
recommended that the Planning Commission consider the use of a
Zoning Administrator Use Permit process for small bona fide
restaurants with less than 50 seats. This type of permit would
be subject to a Zoning Administrator hearing (including a public
notice and mailing), and would require that the Zoning
Administrator make findings for the issuance of the Use Permit.
The findings would include the following:
(a) The proposed use will not adversely affect the welfare
of neighborhood residents in a significant manner.
(b) The proposed use will not contribute to an undue
concentration of alcohol outlets in the area.
(c) The proposed use will not detrimentally affect nearby
neighborhoods considering the distance of the alcohol
outlet to residential buildings, churches, schools,
hospitals, playgrounds, parks, and other existing alcohol
outlets.
(d) The proposed use is compatible with existing and
potential uses within the general area.
(e) Traffic and parking congestion will not result.
(f) The public health, safety, and general welfare are
protected.
(g) No harm to adjacent properties will result.
(h) The objectives of the General Plan are secured.
In addition to making findings for the approval, the Zoning
Administrator could impose conditions on the operation of the
alcohol outlet. The conditions could include the standard list
of alcohol conditions used by the Planning Commission for
Conditional Use Permits (Attachment D), as well as any other
conditions determined by the Zoning Administrator to be
appropriate. The Zoning Administrator action would be appealable
to the Planning Commission.
The use of the Zoning Administrator Use Permit would accomplish
the goal of requiring findings for all alcohol outlets and would
also allow the imposition of specific conditions to address
individual situations. At the same time, it would maintain the
ability for small restaurants to be approved without having to go
through the Conditional Use Permit process, likely with a savings
in both time and money as compared to the Conditional Use Permit
process.
In discussing the proposed Text Amendment, the Planning
Commission considered the idea of utilizing the Zoning
Administrator Use Permit process for restaurants currently
eligible for the CUP exemption. While some of the Commissioners
expressed support for the idea of having a Use Permit process as
opposed to requiring a CUP for all alcohol outlets, the five
Commissioners who voted to delete the exemption felt that until a
Use Permit process could be established, in order to ensure that
all new alcohol outlets are subject to a discretionary review,
the exemption process should be eliminated. The two
Commissioners who voted against the proposed Text Amendment felt
that there should be an alternative to the CUP process and that
the issue should be considered in the context of the overall
Alcohol Policy. The Planning Commission consideration of the
Alcohol Policy is scheduled for March 25, 1992.
Conclusion
The Planning Commission has expressed a concern regarding the
non-discretionary approval of alcohol outlets for small
restaurants and has voted to eliminate the Exemption process.
Elimination of the Exemption would result in all applications for
alcohol licenses having to be reviewed by the Planning
Commission, further crowding Commission and potentially Council
agendas. The elimination of the Exemption would lump all alcohol
outlets into one category. The original intent of the Exemption
was to make the distinction between small, bona fide restaurants
and other outlets such as bars and nightclubs. This distinction
would be lost with the elimination of the Exemption.
Establishment of a Zoning Administrator Use Permit would
eliminate the "non-discretionary" approval of such permits, but
would still allow an alternative to the Conditional Use Permit
process for small, "bona fide" restaurants.
BUDGET/FINANCIAL IMPACT
The recommendation presented in this report does not have any
budget or fiscal impact.
RECOMMENDATION
It is respectfully recommended that the Council review the
Planning Commission recommendation and consider the following
options: 1) Elimination of the CUP Exemption process requiring
that all new restaurants proposing to sell alcoholic beverages be
subject to a Conditional Use Permit; or, 2) Elimination of the
CUP Exemption process and establishment of a Use Permit process
to allow Zoning Administrator approval of alcohol sales for
small, bona fide restaurants (this option would require that
staff return to the Commission with the format and language for
the Use Permit process). Staff recommends Option 2. If the
Council wishes to adopt the Commission's recommendation, the
following findings are recommended:
FINDINGS
1. The proposed amendment is consistent in principle with the
goals, objectives, policies, land uses, and programs
specified in the adopted General Plan in that the proposed
approval process for alcohol outlets would ensure that
such uses would not have an adverse impact on the
surrounding community.
2. The public health, safety, and general welfare requires
the adoption of the proposed amendment in that it would
ensure that alcohol outlets are reviewed with an adequate
level of discretion.
Prepared by: D. Kenyon Webster, Planning Manager
David Martin, Associate Planner
Planning Division
Land Use and Transportation Management Department
Attachments: A. Planning Commission Resolution
B. Alcohol Outlet Findings
C. Code Section 9049.4
D. Alcohol Outlet Conditions of Approval