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HomeMy WebLinkAbout75C - PH - MARISCOS HECTORREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 19, 2019 TITLE: PUBLIC HEARING — ADOPT A RESOLUTION APPROVING CONDITIONAL USE PERMIT NO. 2019-10 TO ALLOW THE SALE OF DISTILLED SPIRITS FOR ON - PREMISE CONSUMPTION AND CONDITIONAL USE PERMIT NO. 2019-11 TO ALLOW AFTER HOURS OPERATIONS FOR MARISCOS HECTOR #1 LOCATED AT 1801 SOUTH MAIN STREET, UNITS D AND E {STRATEGIC PLAN NO. 3,21 CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CKs]►111►Lei 011rC01 /s/ Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION It is recommended that the City Council take one of the following actions: 1 a. Adopt a resolution approving Conditional Use Permit No. 2019-10 as conditioned for a Type 47 Alcoholic Beverage Control (ABC) License and allow the sale of distilled spirits in addition to the beer and wine currently sold on the premises; and 1 b. Continue Conditional Use Permit No. 2019-11 to allow after-hours operation to April 27, 2020 for Planning Commission consideration; or 2a. Adopt a resolution approving Conditional Use Permit No. 2019-10 with added conditions for a Type 47 Alcoholic Beverage Control (ABC) License and allow the sale of distilled spirits in addition to the beer and wine currently sold on the premises; and 2b. Continue Conditional Use Permit No. 2019-11 to allow after-hours operation to April 27, 2020 for Planning Commission consideration; or 3. Adopt a resolution denying Conditional Use Permit No. 2019-10 and Conditional Use Permit No. 2019-11. EXECUTIVE SUMMARY Mark Gaughan, representing Mariscos Hector #1, is requesting approval of Conditional Use Permit (CUP) No. 2019-10 to upgrade an existing alcoholic beverage control license (ABC) from a Type Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 2 41 to a Type 47 license to allow the sale of distilled spirits in addition to beer and wine currently available for on premise consumption. In addition, the applicant is proposing to expand the existing restaurant and is requesting approval to sell alcoholic beverages within the added floor area. The restaurant is currently selling alcohol under Land Use Certificate No. 1988-15, with the proposed license upgrade requiring the filing of an application for a conditional use permit. In addition, the applicant is requesting approval of Conditional Use Permit No. 2019-11, which is a request to allow the restaurant to operate until 1 a.m. on weekends and holidays. The Planning Commission voted to continue the after-hours request until early next year. Planning Commission Background and Action In April 2019, the Planning Commission held the first public hearing on this item. During the hearing, several speakers raised concerns with the existing operation of the restaurant. At the conclusion of the hearing, the Commission elected to continue the item and asked staff to follow- up with the community in an effort to obtain solutions to the issues raised during the public hearing. On June 24th, 2019, a community meeting was held with the Madison Park Board, City staff and representatives from Mariscos Hector. During this meeting, several issues were raised, including concerns that tequila shots were being served in violation of Mariscos Hector's current ABC license, concerns with the operation of the existing restaurant at McFadden and Standard Avenues, loud noise coming from the restaurant, economic incentives for upgrading the ABC license, and a perceived overconcentration of ABC licenses in the area. The applicant responded that hard liquor (tequila) was not being served but an agave wine product, that the applicant for this project (Ms. Sebold) is in the process of obtaining control over the majority of the Mariscos Hector restaurants in an effort to resolve issues at each restaurant, and that the ABC upgrade would ensure the restaurant remains competitive with similar restaurants in the area. At the conclusion of the meeting, the participants agreed to meet again to continue their dialogue. On July 29th, 2019, a follow-up meeting was held that also included interested groups including Santa Ana Healthy Neighborhood Alliance, Wilshire Square and Memorial Park Neighborhood representatives. Further discussion ensued on identifying additional ways to outreach to the community, the creation of a Google Does tool for residents to report incidents/impacts from the restaurant in -lieu of contacting the Police Department, and the need to transition the restaurant to one that caters to families. The applicant responded that changes such as revised hours of operation and incorporating breakfast items into the menu are being considered by the applicant. Following the July 29th community meeting, the Google Does tool was implemented to be used by interested community members to document restaurant related issues. Google Does also allowed the applicant and City staff to provide updates to the issues that were noted in the document. In reviewing the document, members of the community raised several concerns directly to staff between July 30th to August 20th. Of these concerns, only three were related to Mariscos Hector, with the other four concerning an adjacent restaurant and possible brothel. The Mariscos Hector complaints included possible after-hours activities being conducted without approval, drug sales occurring on the premises, and an unpermitted expansion. Staff has investigated these items and was not able to find supporting evidence substantiating the allegations. Staff requested Police Department assistance to determine if after-hours operations were occurring on the premises. A Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 3 Police Department site visit in mid -September at 12:30 a.m. verified that the restaurant was closed per City regulations. Further, an updated records search of Police activity identified two calls for service at this location since the April Planning Commission meeting. One call for service was for disturbing the peace (music related), with the other call a report of a stolen vehicle. Finally, Code Enforcement records have been reviewed to identify any recent activity. There have not been any recent complaints at Mariscos Hector. On October 14, 2019, a second public hearing was held by the Planning Commission regarding this application. During the public hearing, the Commission received extensive testimony from both the applicant and neighborhood on the proposed ABC license upgrade and restaurant expansion. At the conclusion of the hearing, the Planning Commission, by a vote of 3:1, concurred with the staff recommendation and approved the CUP. The Commission determined that the applicant had been working to address neighborhood concerns since the April hearing. However, to incorporate additional measures intended to address community concerns, the Commission added two additional conditions of approval that requires the applicant to replace the existing storefront with a new storefront that is soundproof and to require a six-month review of the premises to be conducted by staff in order to ensure compliance with the approved conditions of approval. Finally, the Commission voted to continue the after-hours request until April 27, 2020. This would allow staff the ability to monitor the site to ensure compliance with the conditions of approval and to ensure no adverse impacts were generated from the restaurant. PROJECT DESCRIPTION Mariscos Hector #1 currently occupies an 1,850 square foot tenant space within a 6,650 square foot retail center on South Main Street. The applicant has acquired the rights to a full alcoholic beverage license from ABC and is now requesting approval of a conditional use permit to allow the sale of beer, wine, and distilled spirits for on -premise consumption. In conjunction with this request, the applicant is proposing to expand into an adjacent 600 square foot tenant space (Unit D) and sell alcoholic beverages within this new floor area. A conditional use permit is required since the ABC license is being upgraded to allow for the sale of distilled spirits and alcohol will be sold in an expanded area, while Land Use Certificate No. 1988-15 only allowed the sale of beer and wine for on premise consumption within the original restaurant floor area. If approved, the conditional use permit will incorporate and supersede LUC No. 1988-15. In conjunction with the ABC upgrade and expansion request, the applicant was requesting approval of Conditional Use Permit No. 2019-11 to allow the restaurant to operate until 1 a.m. on weekends and holidays. Based on feedback from the neighborhood, the Planning Commission and staff, the applicant has elected to continue the after-hours request until April 2020. Table 1: Project and Location Information Item Information Project Address 1801 S. Main Street, Units D and E Nearest Intersection Main Street and East Saint Andrew Place General Plan Designation General Commercial (GC) Zoning Designation South Main Commercial District (C-SM) Surrounding Land Uses North I Commercial Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 4 Item Information East Residential South Commercial West Commercial Property Size 20,038 s . ft. Existing Site Development The site is developed with a 6,650 square -foot commercial building. Use Permissions Allowed with a conditional use permit CUP Zoning Code Sections Affected Uses I Section 41-196 & 41-521 SAMC Operational Standards I Section 41-196 (g) SAMC PROJECT BACKGROUND AND CHRONOLOGY In 1986, a five -unit, 6,650 square foot commercial building was constructed on the site. In 1988, Mariscos Hector replaced the former restaurant within Unit E and began selling beer and wine for on premise consumption as allowed by Land Use Certificate No. 1988-15. The current owner of Mariscos Hector #1 has been operating the South Main Street restaurant since 2005. There are three other Mariscos Hector restaurants in the City that the owner is affiliated with. Two are wholly owned by the applicant, with the applicant having majority control of the third establishment. In 2014, a conditional use permit application was submitted to expand the restaurant and beer and wine sales into the adjacent tenant space (Unit D); however, the applicant elected to withdraw the application prior to scheduling the item for a Planning Commission public hearing. In early 2017, the applicant received authorization from the Department of Alcoholic Beverage Control (ABC) to upgrade from a Type 41 to a Type 47 alcoholic beverage license and allow the sale of distilled spirits in addition to beer and wine. Around the same time, the adjacent 600 square foot space (Unit D) became vacant, with the restaurant leasing the space for future expansion. In response, the applicant submitted a conditional use permit application to the Planning Division. In March 2017, a public hearing was held by the Planning Commission for Conditional Use Permit No. 2017-03. After receiving public testimony on the application, the Commission denied the request to upgrade the license. The denial was based on feedback from the community that included concerns with noise, crime, on -site disturbances, on operational issues occurring at the restaurant. Since the denial, the applicant has secured a new management team and has submitted a new application for the ABC license upgrade. PROJECT ANALYSIS Conditional use permit requests are governed by Section 41-638 of the SAMC. Conditional use permits may be granted when it can be shown that the proposed project will not adversely impact the community. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. The purpose of regulating establishments that sell alcoholic beverages is to set forth operating practices and procedures, and to minimize impacts to surrounding areas. In analyzing the applicant's request, staff analyzed several specific elements, including a review of the site to Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 5 ensure it was in compliance with City operational standards, a review of the amount and type of code enforcement activity occurring on the site, analysis of the type and volume of Police related calls for service to both the restaurant and site, and a review of compliance with State ABC standards. Staff has reviewed the applicant's request to upgrade the alcoholic beverage control license to allow for sale of distilled spirits in addition to beer and wine and has determined that approval of the conditional use permit will not be detrimental to the health, safety, and welfare of the community. As proposed, the restaurant will continue to operate as a sit-down bona -fide eating establishment and is proposing to increase in size to 2,450 square feet by expanding into an adjacent 600 square foot space. The other commercial uses located on the property are a mix of retail and office uses. The subject site is not located within immediate proximity to parks, playgrounds, or schools. The closest school facilities are Edison Elementary and St. Anne School which are over 1,000-feet away and there are two churches within 500-feet of the subject site. There are residential properties to the east that abut the restaurant use. Mariscos Hector #1 is an established restaurant which provides a dining service to the community and visitors of the City. The license upgrade will allow the restaurant to remain competitive with similar establishments and economically viable. In addition, the on -site sale of alcohol to customers is an ancillary service to the primary restaurant use. The subject site does not conform to the City's off-street parking regulations as the parking requirement for restaurant uses has changed since the structure was constructed. Regardless, since a restaurant has been at this location since the building was constructed, the restaurant may continue as a nonconforming use. And, per Section 41-1309.1 of the SAMC, the 600 square foot expansion area is exempt from complying with the higher restaurant parking standard as this Code section allows tenant spaces less than 2,500 square feet in size (the expanded restaurant will be 2,450 square feet) to continue to be parked at the lower retail rate. Conditions of approval are proposed that will bring the window signage into conformance with the Municipal Code. Table 2: Operational Standards Standards Required by SAMC Proposed Eating Establishment Type Bona -Fide Bona -Fide Hours of Operation 5:00 am to 12:00 am 8:00 am to 1:00 am Window Display 25% of Window Coverage Complies Live Entertainment Entertainment Permit Applicant in process of obtaining a new permit Alcohol Storage and Display 5% of G.F.A 1.6% of G.F.A Exterior Telephone Prohibited None Parking Required 38 stalls 34 stalls As part of the application process, the application was reviewed by the Police Department and Code Enforcement Division which have no issues of concern regarding the license upgrade. The restaurant is currently in compliance with all applicable regulations and conditions imposed on an Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 6 eating establishment selling beer, wine and distilled spirits pursuant to Chapter 41 of the SAMC. Furthermore, the operational standards for on -sale establishments and periodic monitoring will ensure that the use will not deviate from the planned operation reviewed under this application and will mitigate any potential impacts created by such use. Table 3: Police Department Analysis and Criteria for Recommendation Police Department Analysis and Criteria for Recommendation Police Grid No. and Rank Police Grid No. 188; ranked 5 out of 103 Police Reporting Grids (4rd percentile) Threshold for High This reporting district is above the 20 percent threshold established by the Crime State for high crime. Police Department The Police Department contends that the operational standards applicable to Recommendation on -premise ABC licenses will mitigate any potential impacts to the surrounding community and therefore does not oppose the granting of a CUP. For on -sale licenses, the Police Department analyzes the crime rate in the area using standards and definitions contained in the Business and Professions Code Section 23948.4(c) (2), which also are utilized by the State Department of Alcoholic Beverage Control (ABC). This section defines "reported crimes" as criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors, except traffic citations. The Police Department then compares the number of such crimes in the reporting district as compared to the number of crimes in other reporting districts. In keeping with the standard used by State ABC and Business and Professions Code, should the Police Department determine that the reporting district has a 20 percent greater number of reported crimes than the average number found in all reporting districts, the Police Department will consider this information in making its recommendation. After reviewing the applicant's proposal, and reviewing the crime statistics for the area for the past year, the Police Department has no concerns and is supportive of the applicants CUP request for a Type 47 ABC license. Table 4: CEQA and Public Notification & Community Outreach CEQA and Public Notification & Community Outreach CEQA CEQA Type General Rule [Section 15061 (b) (3)] Reason(s) This exemption applies to projects where it can be seen with certainty that there Exempt or Analysis is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the operation of a Type 47 alcoholic beverage control license to sell beer, wine, and distilled spirits at an existing bona -fide restaurant and to allow the restaurant to expand into an adjacent 600 square foot vacant space. The City has determined that the use will not create any adverse impacts such as noise, traffic, or safety concerns. Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 7 CEQA and Public Notification & Community Outreach Public Notification & Community Outreach Required Measures A public notice was posted on the project site on November 8, 2019. Notification by mail was mailed to all property owners and occupants within 500 feet of the project site on November 8, 2019. Newspaper posting was published in the OC Reporter on November 9, 2019. Additional The presidents of the Madison and Memorial Park Neighborhood Association Measures were contacted regarding this application. Concerns were raised regarding noise, adverse impacts the compatibility of the restaurant with the adjacent community. CONCLUSION Based on the analysis provided within this report, staff has determined that the proposed project is in compliance with the City's operational standards for uses with alcoholic beverages. Further, the project site has no open code enforcement violations and is compliant with State ABC regulations. The Police Department has analyzed crime statistics for the site for the past year and did not identify any issues with the restaurant. Finally, staff and the applicant have met with the community on two occasions to understand and address their concerns. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal No.3 (Economic Development) Objective No. 2 of creating new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies. FISCAL IMPACT The project will generate additional sales tax revenue, increase the number of permanent jobs and will provide additional dining options for the community. In addition, the expansion of the restaurant into an adjacent and vacant tenant space will require that permit and inspection fees be paid to the City. It is estimated that a slight increase in sales volume will occur from the enlarged restaurant with additional seating areas and from the sales of distilled spirits. Minh Thai Executive Director Planning and Building Agency MT: of 5/RFCA/11-19-19/CUP 2019-10 Exhibits: 1. Resolution for approval 2. Resolution for denial Conditional Use Permit No. 2019-10, 1801 South Main Street, Units D and E November 19, 2019 Page 8 3. Vicinity Map 4. Site Plan 5. Floor Plan *:1:11-3Yi1 LS 11.19.19 RESOLUTION NO. 2019-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2019-10 AS CONDITIONED TO ALLOW THE SALE OF DISTILLED SPIRITS FOR ON -PREMISES CONSUMPTION AT MARISCOS HECTOR #1 RESTAURANT LOCATED AT 1801 SOUTH MAIN STREET, UNITS D AND E BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Mark Gaughan ("Applicant'), representing Mariscos Hector #1, is requesting approval of Conditional Use Permit No. 2019-10 to allow the sale of distilled spirits in addition to the currently allowed beer and wine sales for on premises consumption for the property located at 1801 South Main Street, Unit E. Applicant is proposing to expand into an adjacent tenant space, Unit D, and is requesting approval to sell alcoholic beverages within the additional floor area. B. In 1988, Land Use Certificate No. 1988-15 was transferred from Senor Pollo to Mariscos Hector restaurant to allow for the sale of beer and wine for on -premises consumption. C. Santa Ana Municipal Code Section 41-196 requires approval of a conditional use permit for establishments selling alcoholic beverages for on- or off -premise consumption. D. On April 22, 2019, the Planning Commission held a duly noticed public hearing for Conditional Use Permit No. 2019-10. At the conclusion of this hearing, the Commission continued the item to allow staff, the Applicant, and the interested neighborhood groups the ability to address potential impacts from the restaurant. E. On October 14, 2019, the Planning Commission held a duly noticed public hearing for Conditional Use Permit No. 2019-10. At the conclusion of this hearing, the Commission approved Conditional Use Permit No. 2019-10 subject to modified conditions of approval. F. On October 15, 2019, a request was made by a Councilmember to have the item be presented to Council for further consideration at a future meeting. Resolution No. 2019-xx Page 1 of 7 G. On November 5, 2019, the City Council discussed Conditional Use Permit No. 2019-10 and 2019-11 and voted 4:1 to have the items presented to the City Council for a de novo public hearing. H. On November 19, 2019, the City Council held a duly noticed public hearing for Conditional Use Permit Nos. 2019-10 and 2019-11. The City Council determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code ("SAMC") Section 41-638, have been established for Conditional Use Permit No. 2019-10 to allow the sale of distilled spirits for on -premises consumption at Mariscos Hector #1 at 1801 South Main Street, Units D and E: 1. That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. The proposed sale of alcoholic beverages for on -premises consumption at this location will provide an ancillary service to the restaurant's customers by allowing them the ability to purchase alcohol with their meal. This will thereby benefit the community by providing a restaurant with an additional and complementary food related amenity. Operational standards applicable to the alcoholic beverage control license will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed sale of alcoholic beverages for on -premises consumption at this location will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity because the operational standards applicable to the alcoholic beverage control license will address any potential negative or adverse impacts created by the use. Mariscos Hector #1 is a bona -fide restaurant and the addition of alcohol will be ancillary to the main use. All of the operational standards identified in SAMC Sec. 41-196 will apply to this establishment. Finally, the sale of alcohol in the restaurant will be incidental to the primary use as a bona fide eating establishment and will occur within the premises. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. Resolution No. 2019-xx Page 2 of 7 The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that offer a full selection of alcoholic beverages for sale to their customers. Moreover, the offering of alcoholic beverages will allow Mariscos Hector #1 to remain economically viable and competitive with nearby full -service restaurants in the local vicinity and contribute to the overall success of the City of Santa Ana, attracting visitors and residents to the area. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed conditional use permit will be in compliance with all applicable regulations and operational standards imposed on a restaurant selling alcoholic beverages for on - premises consumption pursuant to Chapter 41 of the SAMC. The facility will be maintained as a full -service, bona -fide eating establishment, having suitable kitchen facilities and supplying an assortment of foods. Additionally, the restaurant will utilize less than five (5%) percent of the gross floor area for display and storage of alcoholic beverages, which is the maximum threshold established by the Santa Ana Municipal Code. Operational standards will ensure the project remains in compliance with all applicable codes and regulations related to alcohol sales to ensure that the use does not impact neighboring properties or create an attractive nuisance. 5. That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. The proposed sale of alcoholic beverages for on -premises consumption at this location will not adversely affect the General Plan or any specific plan. The granting of this conditional use permit supports several policies contained in the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. Providing a variety of full -service restaurants that provide alcoholic beverages as part of their menu offers additional dining options for Santa Ana residents and visitors. Policy 2.9 supports developments that create a business environment that is safe and attractive. The property maintenance condition of approval will maintain a safe and attractive environment in the community. Further, operational standards for the proposed ABC license will maintain a safe and attractive environment in the Resolution No. 2019-xx Page 3 of 7 neighborhood. Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. Mariscos Hector #1 is located within a commercial shopping center and its operation is compatible with the surrounding commercial businesses. Section 2. In accordance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, the recommended action is exempt from CEQA per Section 15061(b) (3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to allow the on -premises sale of alcoholic beverages at a full -service restaurant and minor interior tenant improvements. There is no reasonable possibility that the project will have a significant effect on the environment due to the facility having the necessary infrastructure to operate the proposed use and no new expansion of the existing building is proposed. Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, referendum, and other proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily. incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 4. The City Council of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2019-10 as conditioned in Exhibit A, attached hereto and incorporated herein, for the alcoholic beverage control license for the sale of alcohol for on -premises consumption for the project located at 1801 South Main Street, Units D and E. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for City Council Action dated November 19, 2019, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2019-xx Page 4 of 7 ADOPTED this 19th day of November, 2019. AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: ABSTENTIONS: Councilmembers: Miguel Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By:�: fi Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, City Clerk, do hereby attest to and certify the attached Resolution No. 2019-xx to be the original resolution adopted by the City Council of the City of Santa Ana on November 19, 2019. Date: City Clerk City of Santa Ana Resolution No. 2019-xx Page 5 of 7 EXHIBIT A Conditions of Approval for Conditional Use Permit No. 2019-10 Conditional Use Permit No. 2019-10 for on -premises consumption of alcoholic beverages is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code (SAMC), the California Building Standards Code and all other applicable regulations. The Applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The Applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. 1. The sales, service, and consumption of alcoholic beverages shall be permitted in accordance with the operational standards for on -sale establishments pursuant to Section 41-196(g) of the SAMC and in accordance with the provisions of a Type-47 alcohol license by the State Alcohol Beverage Control Board (ABC). 2. Prior to release of the ABC license, the window tinting shall be removed to be in compliance with the Municipal Code. 3. Prior to release of the ABC license, a new entertainment permit shall be applied for and be approved. 4. If off -site parking is proposed, the lot shall comply with the City's Building Security Ordinance (i.e. parking lot lighting). 5. Prior to release of the ABC license, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Applicant (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) shall execute a maintenance agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The maintenance agreement shall contain covenants, conditions and restrictions relating to the following: (a) Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.); Resolution No. 2019-xx Page 6 of 7 (b) Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses, (c) Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; (d) Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); (e) If Applicant and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms. (f) The maintenance agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties, obligations and responsibilities set forth under the maintenance agreement. (g) The maintenance agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any unreimbursed costs and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City. 6. Prior to issuance of the ABC license to the State Board of Alcoholic Beverages, the Applicant shall obtain building permits to replace the existing restaurant storefront with a soundproof storefront. 7. A six-month review of the CUP shall be conducted by staff to ensure compliance with City codes and the conditions of approval. Resolution No. 2019-xx Page 7 of 7 *:1:11-31111V LS 11.19.19 RESOLUTION NO. 2019-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DENYING CONDITIONAL USE PERMIT (CUP) NO. 2019-10 AND CUP NO. 2019-11 TO NOT ALLOW THE SALE OF DISTILLED SPIRITS FOR ON - PREMISES CONSUMPTION AND TO DENY AFTER HOURS OPERATIONS AT MARISCOS HECTOR #1 RESTAURANT LOCATED AT 1801 SOUTH MAIN STREET, UNITS D AND E BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Mark Gaughan ("Applicant"), representing Mariscos Hector#1, is requesting approval of Conditional Use Permit No. 2019-10 to allow the sale of distilled spirits in addition to the currently allowed beer and wine sales for on premises consumption. In addition, the Applicant is requesting to remain open until 1 a.m. on weekends and holidays at the property located at 1801 South Main Street, Unit E. Applicant is proposing to expand into an adjacent tenant space, Unit D, and is requesting approval to sell alcoholic beverages within the additional floor area and remain open after hours. B. In 1988, Land Use Certificate No. 1988-15 was transferred from Senor Polio to Mariscos Hector restaurant to allow for the sale of beer and wine for on -premises consumption. C. Santa Ana Municipal Code Section 41-196 requires approval of a conditional use permit for establishments selling alcoholic beverages for on- or off -premises consumption. D. Santa Ana Municipal Code Section 41-522(e) requires approval of a conditional use permit for eating establishments open anytime between the hours of midnight and 5 a.m. which are located within 150 feet of residential properties. E. On October 14, 2019, the Planning Commission held a duly noticed public hearing for Conditional Use Permit Nos. 2019-10 and 2019-11. At the conclusion of this hearing, the Commission approved Conditional Use Permit No. 2019-10 subject to modified conditions of approval and continued the after-hours request until April 27, 2020. Resolution No. 2019-xx Page 1 of 4 F. On October 15, 2019, a request was made by a Councilmember to have the item presented to Council for further consideration at a future meeting. G. On November 5, 2019, the City Council discussed Conditional Use Permit No. 2019-10 and 2019-11 and voted 4:1 to have the items presented to the City Council for a de novo public hearing. H. On November 19, 2019, the City Council held a duly noticed public hearing for Conditional Use Permit Nos. 2019-10 and 2019-11. In regard to the Conditional Use Permits, required findings 1, and 2 of Section 41-638 of the Santa Ana Municipal Code, the City Council finds: 1. That the proposed use will not provide a service or facility which will contribute to the general well being of the neighborhood or community. The sale of distilled spirits for on -premises consumption at Mariscos Hector #1 at 1801 South Main Street, Units D and E will not provide a service to the community that is necessary at this time. Under Land Use Certificate No. 1988-15 patrons who visit the restaurant will still have the opportunity to purchase beer and wine with their meals. In addition, a total of six (6) restaurants that sell beer, wine and distilled spirits are located within a one and a half (1.5) mile radius of the property to serve residents and the community. In addition, due to numerous noise and other nuisance related complaints, the after-hours operations of the restaurant would not contribute to the well-being of the neighborhood. 2. That the proposed use will, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The sale of distilled spirits for on -premises consumption at this location will impact the safety and general welfare of persons residing or working in the vicinity. The Police Department reported 25 field activity incidents and five reportable disturbances at the location within the last five years. The subject site is immediately adjacent to residential uses and neighborhoods; at the Planning Commission public hearing several residents, representing neighborhood associations, expressed concerns of safety and welfare. Additionally, the proposed after-hours operations may result in an increase in Police and Code Enforcement related calls for service, which would be detrimental to the health, safety and welfare of the surrounding neighborhood. Resolution No. 2019-xx Page 2 of 4 J. In regard to Conditional Use Permit findings 3, 4 and 5 of Section 41-638 of the Santa Ana Municipal Code, the City Council makes no specific findings. These findings relate to compliance with the regulations and conditions specified in Chapter 41 for on -sale establishments, economic stability of the properties surrounding the area, and affect on the General Plan. K. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(4) as the City Council denied Conditional Use Permit Nos. 2019-10 and 2019-11. Section 2. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, referendum, and other proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby denies Conditional Use Permit No. 2019-10 and Conditional Use Permit No. 2019-11 for the project located at 1801 South Main Street, Units D and E. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Council Action dated November 19, 2019, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2019-xx Page 3 of 4 ADOPTED this 19th day of November, 2019. AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: ABSTENTIONS: Councilmembers: Miguel Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2019-xx to be the original resolution adopted by the City Council of the City of Santa Ana on November 19, 2019. Date: Clerk of the Council City of Santa Ana Resolution No. 2019-xx Page 4 of 4 4/10/2019 EXHIBIT 3 Conditional Use Permit Nos. 2019-10 and 2019-11„ Mariscos Hector #1 1801 South Main Street Units D and E R2 - R1 R1 a � R1 CSM -,-� CSM R1 I L. CSM IT E� Santa Ana Boundary Zoning G5M Irene oeIprlar n Slog,,-lama,Ae,laen.e -CSM. .�! Y �— iwo-faml4y neuaemx ' ■ Suhuihan Apanmmt ■ Multiple-fam�ty Nesidexe '■Pesltlentlal Esme � ■ Commercial Residenilal '■ Specific Plan ■ Specific development �■PWnnetl S.,ping 0-n r f, South Mai 11—ICmnmertial Olstrict cn nGn Ldw :mla!-mu—!D'rnja '■Art -Ifnm cl - Ge ICa el i gh I I R2 GSM �C W ■ He vy lntlushlal Illllla all ■Pmfe real m 106mremmem ceme. E open spas General Agrrta+hural ��Ss. i Exhibit 3 - Vicinity Zoningant .a apps. spatialstream.com/production/dash board/8/9/0/Cu rrentBuild/html/Reportin g.html# V R1 8 a16 31%LK feet N (c) 2019 Diaital Mao Products. 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