HomeMy WebLinkAboutItem 33 - Denial Regarding Conditional Use Permit No. 2023-09 for 1208 East McFadden Avenue33. Resolution of Denial Regarding Conditional Use Permit No. 2023-09 (Mariscos
Hector ABC License) for the Property Located at 1208 East McFadden Avenue
Department(s):
Recommended Action: Adopt a resolution documenting City Council denial of
Conditional Use Permit No. 2023-09 (Mariscos Hector ABC) for the property located
at 1208 East McFadden Avenue.
RESOLUTION NO. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA DENYING CONDITIONAL USE PERMIT NO. 2023-09
AS CONDITIONED TO ALLOW SALE OF DISTILLED SPIRITS IN ADDITION TO
EXISTING BEER AND WINE SALES FOR ON -PREMISES CONSUMPTION AT
MARISCOS HECTOR SPORTS GRILL LOCATEDAT 1208 EAST MCFADDEN
AVENUE
Planning and Building Agency
www.santa-ana.org/planning-and-building
Item # 33
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 18, 2023
TOPIC: Resolution of Denial Regarding Conditional Use Permit No. 2023-09
AGENDA TITLE
Resolution of Denial Regarding Conditional Use Permit No. 2023-09 (Mariscos Hector
ABC License) for the Property Located at 1208 East McFadden Avenue
RECOMMENDED ACTION
Adopt a resolution documenting City Council denial of Conditional Use Permit No. 2023-
09 (Mariscos Hector ABC) for the property located at 1208 East McFadden Avenue.
DISCUSSION
Following Planning Commission approval of the subject request on April 24, 2023, on
June 6, 2023, the City Council conducted a de novo review of Conditional Use Permit
(CUP) No. 2023-09 for Mariscos Hector's proposed upgrade of its existing Type 41
Alcoholic Beverage Control (ABC) license to a Type 47 ABC license for the property
located at 1208 East McFadden Avenue, pursuant to Section 41-642 of the Santa Ana
Municipal Code. During the meeting, the City Council discussed the crime statistics
provided by the Police Department, received public testimony, and determined that the
proposed ABC license upgrade would exacerbate the neighborhood and community
concerns related to noise and that the intensification of the use in a census tract that
already has an over concentration of alcohol service licenses will be detrimental to, and
will not contribute to the general wellbeing of the neighborhood and community.
Therefore, the City Council denied the CUP request as presented by staff, by a vote of
7-0.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBITS
1. Resolution denying CUP No. 2023-09
Submitted By: Minh Thai, Executive Director, Planning and Building Agency
Approved By: Kristine Ridge, City Manager
RESOLUTION NO.2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA DENYING CONDITIONAL USE PERMIT NO.
2023-09 AS CONDITIONED TO ALLOW SALE OF DISTILLED
SPIRITS IN ADDITION TO EXISTING BEER AND WINE SALES
FOR ON -PREMISES CONSUMPTION AT MARISCOS
HECTOR SPORTS GRILL LOCATED AT 1208 EAST
MCFADDEN AVENUE
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. Maria Sebold with Mariscos Hector Sports Grill ("Applicant") and representing
McFadden Shopping Center, LLC. ("Property Owner"), is requesting approval
of Conditional Use Permit (CUP) No. 2023-09 to allow the sale of distilled
spirits in addition to beer and wine for on -premises consumption at an existing
restaurant located at 1208 East McFadden Avenue.
B. Section 41-196 of the Santa Ana Municipal Code ("SAMC") requires approval
of a CUP for establishments wishing to sell alcoholic beverages for on -
premises consumption.
C. On November 8, 1971, the Planning Commission approved CUP No. 1971-34
allowing the sale of beer and wine for on -premises consumption, through a
Type 41 license from the State Department of Alcoholic Beverage Control
("ABC"), at the subject site.
D. On February 24, 2023, the applicant submitted a CUP application to the
Planning Division to upgrade its existing ABC license from a Type 41 to a Type
47 license to allow the sale of distilled spirits in addition to beer and wine for
on -premises consumption at the existing restaurant.
E. On April 24, 2023, the Planning Commission held a duly noticed public hearing
for Conditional Use Permit No. 2023-09. At the conclusion of this hearing, the
Commission approved Conditional Use Permit No. 2023-09 subject to modified
conditions of approval.
F. On April 25, 2023, the Planning Division provided a summary of the Planning
Commission's action to the City Council, after which a member of the City
Council requested that the item be discussed during the May 2, 2023, City
Council meeting.
Resolution No. 2023-XXX
Page 1 of 5
G. On May 2, 2023, the City Council discussed Conditional Use Permit No. 2023-
09 and voted 7:0 to have the item presented to the City Council for a de novo
public hearing, pursuant to Section 41-642 of the SAMC.
H. On June 6, 2023, the City Council held a duly noticed public hearing for
Conditional Use Permit No. 2023-09. During this meeting, members of the City
Council listened to the neighborhood concerns and discussed crime statistics.
The City Council determines that the following finding, which must be
established in order to grant a CUP pursuant to Section 41-638 of the SAMC,
cannot be established for CUP No. 2023-09 to allow the sale of distilled spirits
in addition to beer and wine for on -premises consumption at an existing eating
establishment located at 1208 East McFadden Avenue. Specifically,
Conditional Use Permit Finding 1 of Section 41-638, as it relates to the
proposed use providing a service which would contribute to the general
wellbeing of the neighborhood or the community, is not met. Therefore, the
finding for denial of CUP 2023-09 is adopted as follows:
1. That the proposed use will be detrimental to and will not provide a
service or facility which will contribute to the general wellbeing of the
neighborhood or community.
Under CUP No. 1971-34, patrons who visit the restaurant
currently have the opportunity to purchase beer and wine with
their meals. The request to intensify the use and allow the sale
of distilled spirits for on -premises consumption is not a service
that is needed at this time. Moreover, the intensification of the
use will not provide a service that contributes to the general
wellbeing of the neighborhood or community. Instead, the use
would be detrimental due to over concentration of alcohol
licenses and neighborhood nuisance concerns.
Pursuant to data provided by the Department of Alcoholic
Beverage Control (ABC), there is currently an over concentration
of ABC licenses for on -premises consumption within the census
tract (744.03) for the subject property. Census tract authorization
records indicate that there are only seven licenses authorized
within the subject census tract. However, there are currently nine
existing licenses established.
Moreover, the intensification of the use will be detrimental, as it
would exacerbate existing neighborhood and community
concerns related to noise and other nuisance related complaints.
Police Department data from January 2020 through December
2022 indicates that there have been 38 calls to service for the
subject property related, but not limited to, burglary,
trespassing, narcotic activities, noise disturbance, assault,
battery, gang activity, and stolen vehicles.
Resolution No. 2023-XXX
Page 2 of 5
Seventeen of those calls to service were specific to the subject
restaurant. The subject site is immediately adjacent to residential
uses, neighborhoods, and open space areas. Therefore, the sale
of distilled spirits would result in an increase of neighborhood and
community disturbances, compromising the general wellbeing of
Santa Ana residents and workers.
Additionally, the existing restaurant operations related to on -site
entertainment, in combination with the proposed sale of distilled
spirits, would result in an unacceptable noise levels and in an
increase of trash and other nuisance standards for the nearby
residential properties. Subsequently, it would result in an
increase in Police- and Code Enforcement -related calls for
service, a further detriment to the general wellbeing of the
surrounding residents.
Section 2. In accordance with the California Environmental Quality Act (CEQA) and
the CEQA Guidelines, this project is exempt from further review under Section 15061(b)(4) of
the CEQA Guidelines, as the City Council has denied Conditional Use Permit No. 2023-09.
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 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 denies Conditional Use Permit No. 2023-09 for the sale of distilled spirits in
addition to beer and wine for on -premises consumption at Mariscos Hector Sports Grill
located at 1208 East McFadden Avenue. The denial shall prohibit the sale of distilled spirits
at the subject location but leaves in effect the permitted sale of beer and wine, approved
under Conditional Use Permit No. 1971-32, subject to all applicable standards and
Resolution No. 2023-XXX
Page 3 of 5
regulations set forth in Chapter 41 of the Santa Ana Municipal Code. This decision is based
upon the evidence submitted at the above -referenced hearing, including but not limited to:
The Request for City Council Action dated July 18, 2023, and exhibits attached thereto; and
the public testimony, written and oral, all of which are incorporated herein by this reference.
ADOPTED this 18th day of July 2023 by the following vote.
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
NOT Councilmembers:
PRESENT:
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
��-
John M. Funk
Chief Assistant City Attorney
Resolution No. 2023-XXX
Page 4 of 5
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Jennifer Hall, City Clerk, do hereby attest to and certify the attached Resolution No.
2023-XXX to be the original resolution adopted by the City Council of the City of Santa
Ana on July 18, 2023.
Date:
City Clerk
City of Santa Ana
Resolution No. 2023-XXX
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