ITEM 8-B
Council Mtg: September 8, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Text Amendment 92-006 to conditionally permit existing
drive-in, drive-through, fast food, and take-out
restaurants to remain open after 10:00 p.m. after they
have been substantially remodeled or reconstructed
Applicant: Fancher Development Services for Taco Bell,
Inc.
INTRODUCTION
This report recommends that the City Council approve a text
amendment which is a modified version of the amendment
recommended for approval by the Planning Commission.
BACKGROUND AND PLANNING COMMISSION ACTION
Application Chronology
The applicant originally applied for a Conditional Use Permit
(CUP 91-027) on July 2, 1991, to allow the demolition of the
existing walk-in Taco Bell at 2207 Lincoln Boulevard and the
construction of a new fast food structure with drive-through
capacity. On December 11, 1991, the Planning Commission approved
CUP 91-027 to permit the demolition of the existing 1,352 square
foot, 46-seat restaurant and the construction of a 1,568 square
foot, 44-seat restaurant with drive-through capacity (Attachment
A).
At the Planning Commission public hearing for CUP 91-027, the
applicant asked the Planning Commission to allow the proposed
drive-through to remain open until 12:00 midnight, which is two
hours later than the hours permitted for fast food/drive-through
establishments pursuant to SMMC Section 9055.10(b). In response
to this request, the Planning Commission suggested that the
applicant apply for a Text Amendment to SMMC Section 9055.10(b)
to allow for such a closing time. The applicant did so on
January 23, 1992 (TA 92-006).
Existing Code Requirement
The applicant seeks to amend SMMC Section 9055.10(b). This is a
sub-section of Subchapter 7 of the Zoning Ordinance, wherein
"Special Conditions for Conditional Uses" are specified for a
number of conditionally permitted uses in addition to fast food
establishments, such as child day care centers and automobile
repair facilities. When Subchapter 7 applies to a use which is
approved by the Planning Commission or the City Council on
appeal, the special conditions contained therein must be applied
to the Conditional Use Permit.
Within Subchapter 7, SMMC Section 9055.10(b) applies specifically
to "drive-in, drive-through, fast-food, and take-out restaurants"
and is one of several requirements which is intended to ensure
that these uses "do not result in adverse impacts on adjacent
properties and residents or on surrounding neighborhoods by
reason of customer and employee parking demand, traffic
generation, noise, light, litter, or cumulative impact of such
demands in one area, consistent with the goals, objectives and
policies of the General Plan."
Specifically, SMMC Section 9055.10(b) reads as follows:
(b) Hours of Operation. When located on a site adjacent
to or separated by an alley from any residentially zoned
property, a drive-in, drive-through, fast-food or take-out
restaurant shall not open prior to 7:00 A.M. nor shall it
remain open after 10:00 P.M.
It should be noted that the C4 (Highway Commercial) District is
the only zone in which fast food/ drive-through uses are
permitted (conditionally or otherwise), and that nearly all
parcels in that District are adjacent to or across the alley from
a residential district.
Other sub-sections of Section 9055.10 govern the minimum lot
size, driveway and parking standards, refuse storage location,
pick-up of litter, noise-generating equipment, and placement and
type of speaker box. CUP 91-027 is subject to each of these
conditions, including the condition of closure prior by 10:00
P.M. The applicant is aware that if a Text Amendment is approved
by the City Council, a new CUP application must be filed in
order to amend CUP 91-027.
Planning Commission Decision Regarding the Text Amendment
In its review of TA 92-006 on June 3, 1992, the Planning
Commission recommended an amendment which differed from both the
applicant's request and staff's recommendation (Attachment C).
The applicant requested language which would add a sentence to
the end of the current language as follows:
(b) Hours of Operation. When located on a site adjacent
to or separated by an alley from any residentially zoned
property, a drive-in, drive-through, fast-food or take-out
restaurant shall not open prior to 7:00 A.M. nor shall it
remain open after 10:00 P.M. If a drive-in,
drive-through, fast-food, or take-out restaurant exists
and has existed since the effective date of this Chapter,
the existing hours of operation may be maintained.
If approved, this Text Amendment would, as a matter of course,
allow conditionally-permitted drive-through/fast food uses to
maintain their legal nonconforming hours of operation after
undergoing a substantial remodel or change in mode or character
of operation.
The Planning Commission staff report for TA 92-006 recommended
language which was intended to allow legal nonconforming hours
for the existing portion of the use to be maintained after a
substantial remodel or change in mode of operation. This
suggested language would have conditionally allowed the
proprietor of the Lincoln Boulevard Taco Bell to maintain the
existing midnight closing time for the walk-in use, but would
have required a 10:00 p.m. closing time for the proposed
drive-through portion of the project. (The current Taco Bell
does not have a drive-through facility.) As staff is no longer
recommending this language it is not reproduced here, but it may
be reviewed in the attached Planning Commission staff report
(Attachment B).
The Planning Commission recommended a Text Amendment which makes
any extension of the permitted hours of operation a clear
discretionary action on the part of the Commission or, on appeal,
the City Council, as follows:
9055.10(b) Hours of Operation. When located on a site
adjacent to or separated by an alley from any
residentially zoned property, a drive-in,
drive-through, fast food, or take-out restaurant shall
not open prior to 7:00 a.m. nor shall it remain open
after 10:00 p.m. If a drive-in, drive-through, fast
food, and/or take-out restaurant was in existence on
the effective date of this Chapter and has been
continually in existence since then, and is proposed to
be demolished, substantially remodeled or expanded, the
Planning Commission or City Council on appeal may
establish hours of operation which extend beyond the
above time limitations.
In making this recommendation, Commissioners noted that their
proposed language gave them more discretion than that proposed by
the applicant and was more clear than the language proposed by
staff. Because the Commission's provision for the extension of
hours of operation did not hinge on retaining "existing" hours of
operation, their proposed amendment did not create an incentive
for fast food establishments to extend their hours of operation
prior to filing for a Conditional Use Permit in order to become
"vested" to remain open after 10:00 p.m. The Commission also
made the required Text Amendment findings that the proposed
amendment is consistent with the General Plan and is required for
the public health, safety and general welfare of the City.
ANALYSIS
Revised Staff Recommendation
Staff agrees with the applicant and the Planning Commission that
a Text Amendment may be warranted in this case, but suggests a
version which is both more specific in intention and more limited
in scope. Staff recommendation regarding the Text Amendment is
as follows:
9055.10(b) Hours of Operation. When located on a site
adjacent to or separated by an alley from any
residentially zoned property, a drive-in, drive-through,
fast food, or take-out restaurant shall not open prior to
7:00 a.m. nor shall it remain open after 10:00 p.m. If a
drive-in, drive-through, fast food, and/or take-out
restaurant was in existence on the effective date of this
Chapter and has been continually in existence since then,
and is proposed to be demolished, substantially remodeled
or expanded, the Planning Commission or City Council on
appeal may establish hours of operation which extend
beyond the above time limitations for walk-in customers of
fast food and/or take-out components only, provided that
the following findings are made:
1) the hours of operation are consistent with the
goals, objectives, and policies of the General Plan;
2) the hours of operation would not be detrimental to
the public interest, health safety, convenience, or
general welfare;
3) the hours of operation would not create adverse
impacts on nearby residential uses.
Staff believes that the proposed language addresses two issues of
concern which were not addressed in previous versions of the
proposed amendment. First, staff's suggested language would
continue to prohibit drive-through and drive-in uses from
operating after 10:00 p.m. As drive-through and drive-in uses
have the greatest potential to cause noise and air pollution
which may become particularly bothersome to neighbors in the late
evening hours, staff believes it is prudent to maintain a 10:00
p.m. closing time for these uses but allow walk-in uses after
10:00 p.m. on a case-by-case basis. Secondly, the suggested
language requires that the Commission or Council on appeal make
findings that the proposed hours are consistent with General Plan
objectives and not detrimental to the surrounding neighborhood.
These additional findings would require both staff and the
Commission or Council to carefully evaluate each proposal based
on its location and potential merits and/or problems.
General Plan Consistency
Staff believes that the amendment language proposed by the
applicant is inconsistent with the General Plan Land Use and
Circulation Element (LUCE) Objective 1.6, which states that the
City should "accommodate commercial uses which serve regional,
community and local needs while respecting the adjacent
residential neighborhoods." However, the language currently
recommended by staff would meet this objective because it would
accommodate fast food establishments wishing to upgrade their
existing facilities without allowing these businesses to operate
the most potentially disruptive uses (ie., drive-through and
drive-in) after 10:00 p.m.
An alternative interpretation could be made that any new fast
food or take out use which remains open after 10:00 p.m. is
potentially detrimental to the adjacent residential neighborhood
and would therefore contradict LUCE Objective 1.6. If the City
Council makes this interpretation, the proposed Text Amendment
should be denied.
By allowing the Commission or Council increased flexibility for
hours of operation at existing fast food establishments which
make improvements, staff's proposed language addresses the
concern of the applicant that the current SMMC Section 9055.10(b)
effectively penalizes businesses for improving and upgrading
their existing facilities.
Conclusion
The current SMMC Section 9055.10(b) is one result of an
extensive, multi-year public process which culminated in the City
Council's adoption of the Zoning Ordinance on August 9, 1988.
Like other sections of the Zoning Ordinance, it must be carefully
evaluated before amending. The Planning Commission and staff
understand that the Council's original 7:00 a.m. to 10:00 p.m.
limitations on fast food/drive-through uses were intended to
limit adverse impacts on adjacent residential neighborhoods, and
staff's recommended language is intended to maintain these
protections while providing a measure of flexibility. Staff
concurs with the Planning Commission and the applicant that
Section 9055.10(b) can be improved upon, and therefore recommends
that the City Council adopt the amended text and findings
contained herein as proposed by staff.
Public Notification
Because this proposal is not site specific (it would apply to
multiple parcels throughout the C4 District), no radius map,
signage or mailing notification is required. A legal notice was
published in The Outlook. Staff notified the Neighborhood
Support Center of the Council hearing date on August 18, 1992.
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 make the
following findings and introduce for first reading the ordinance
attached as Attachment D:
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 it is
consistent with Land Use and Circulation Element Objective
1.6, which states that the City should allow the
development of regional- and community-serving commercial
uses while protecting adjacent residential uses.
2. The public health, safety, and general welfare requires
the adoption of the proposed amendment, in that the
amendment allows existing drive-in, drive-through, fast
food, and take-out facilities in the C4 District to
improve their facilities without reducing their hours of
operation for walk-in customers of existing uses, subject
to approval by the Planning Commission or City Council on
appeal.
Prepared by: D. Kenyon Webster, Planning Manager
Drummond Buckley, Assistant Planner
Planning Division
Land Use and Transportation Management Department
ATTACHMENTS:
A. Planning Commission Staff Report for CUP 91-027
(including attachments)
B. Planning Commission Staff Report for TA 92-006
(including attachments)
C. Planning Commission Statement of Official Action
for TA 92-006
D. Ordinance Amending SMMC Section 9055.10(b)