FROM:
Planning Department
SUBJECT:
Title
Master Case No. 19-090-R1 and Appeal No. 23-018: Appeal of the Planning Commission’s decision to deny Conditional Use Permit No. 19-032-R1, a request to modify the existing conditions of approval of previously approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for an existing convenience store, the Marelias Liquor and Market, located at 8145 Cypress Avenue (APN:0191-091-22).
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RECOMMENDATION:
Recommendation
Based on the information in the staff report and subject to the attached Findings, staff recommends that the City Council:
1. Deny Appeal No. 23-018 and uphold the Planning Commission’s decision to deny Conditional Use Permit No. 19-032-R1, a request to modify the conditions of approval for existing approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for Marelias Liquor and Market, an existing liquor store located at 8145 Cypress Avenue.
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APPELLANT/APPLICANT FOR APPEAL:
Firas Farraj
8145 Cypress Avenue
Fontana, CA 92335
LOCATION:
8145 Cypress Avenue, Suite A (APN: 0191-091-22), Southeast corner of Cypress Avenue and Foothill Boulevard.
REQUEST:
A request that the City Council overturn a decision of the Planning Commission to deny Conditional Use Permit No. 19-032-R1, a request to modify the existing conditions of approval of previously approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for an existing convenience store, the Marelias Liquor and Market, located at 8145 Cypress Avenue (APN:0191-091-22).
BACKGROUND:
The first Conditional Use Permit at this location was approved by the Planning Commission on July 11, 1997, with approval of CUP 97-020 for a Type 21 (Off-Sale General) ABC liquor license for a market (Stop N Shop Liquor). On February 8, 2018, the Department of Alcoholic Beverage Control revoked the Type 21 ABC license (the license was under a different operator), due to violations of the conditions of approval including the resale of stolen merchandise purchased from undercover agents. The ABC license was revoked with the condition that no ABC license could operate from the location for one year. On November 19, 2019, the Planning Commission approved CUP No 19-090, for a Type 21 (Off-Sale General) ABC liquor license for a new owner for the market; that approval included a prohibition on the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less. The Police Department was not opposed to granting this use permit as conditioned.
On January 23, 2023, the City issued a new business license for a new owner of the Marelias Market and Liquor convenience store. Subsequently, on August 21, 2023, the new owner submitted an application (CUP19-032-R1) to modify the conditions of approval of the existing Conditional Use Permit to allow the sale of small single alcoholic products.
On December 5, 2023, the Planning Commission held a noticed public hearing on the above-referenced application. After the information was presented and considered, the Planning Commission denied Conditional Use Permit No. 19-032-R1 (Attachment No. 3), a request to modify the Conditions of Approval, Condition No. 21 through 23 for a previously approved Conditional Use Permit (CUP No.19-090) in order to allow the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less associated with the existing ABC License Type 21 (Off-Sale General). Subsequent to the Planning Commission’s decision, staff received one (1) appeal application. The appeal letter request, dated December 15, 2023, is attached for the City’s Council’s consideration (Attachment No. 1).
PROJECT DESCRIPTION:
Land Use Designation:
ANALYSIS:
Appeal No. (APL) 23-018:
The Applicant, Firas Farraj, is requesting that the City Council review Appeal No. 23-018, an appeal of Planning Commission’s decision denying a modification to Conditional Use Permit CUP No. 19-032-R1 to allow the sale of smaller single sized alcoholic beverages. Specifically, the conditional use permit application requests the modification of Conditions of Approval No. 21, 22, & 23 of CUP No. 19-032; and allow the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less. The Applicant’s letter of request is attached for City Council’s consideration (Attachment 1).
The market is a neighborhood market which has been operating since approximately 1997; Mr. Farraj purchased the business in early 2023.The project site is in an existing 9,522 square foot multi-tenant building that has several other tenants. The existing convenience store suite is approximately 2,100 square feet. The other sites are occupied by various types of commercial businesses including a bakery, café, nail salon, barber shop, beauty supply and insurance businesses. The hours of operation for the market and liquor store are from Monday through Thursday 8:30 am to 9:30 pm and Friday through Sunday, 8:30 am to 11:00 pm. According to the floor plan, beer is currently stored in the refrigerated section and distilled spirits are currently stored behind the front counter in the restricted staff area accessible by employees only.
The Police Department noted that between January 1, 2022, through June 10, 2023, there were a total of fourteen (14) calls for service specifically for the existing market and liquor business. Police Department further clarified that the fourteen (14) calls for service were disturbance calls regarding graffiti and one subject disturbance call. Staff is not in support of the requested modification to allow the sale of smaller single alcoholic beverages based on concerns related to public health and safety. Typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed. This frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors. Further, by restricting the single sale of alcoholic beverages, minors and transients are discouraged from purchasing, as these are typically priced lower and more affordable.
The Planning Commission determined that the proposed request (Conditional Use Permit No. 19-032-R1) to modify Conditional Use Permit (CUP) No. 19-032 to allow the sale of smaller single sized alcoholic beverages, did not meet the City’s required findings as outlined in the Fontana Zoning and Development Code (Attachment No. 3).
Findings for Denial for Conditional Use Permit No. 19-032-R1:
Finding No. 1: That the proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning and Development Code, Municipal Code, General Plan, any applicable Specific Plan or Area Plan, and City regulations/standards.
The City’s Zoning and Development Code requires a Conditional Use Permit for any new or modified ABC licenses. Planning Commission approval of a Conditional Use Permit may include such conditions of approval as are deemed necessary to enable the Planning Commission to make the required findings. The existing off-sale liquor and market establishment is located at 8145 Foothill Boulevard, Suite A on the southeast corner of Foothill Boulevard and Cypress Avenue. The General Plan designation is Walkable Mixed-Use Corridor (WMXU-1) and the property is located within the Form Based Code (FBC) Downtown Gateway subdistrict which allows for off-sale establishments with the approval of a Conditional Use Permit. This establishment has a conditional use permit to sell alcoholic beverages (Type 21 ABC license, Off-sale General) that was approved on November 19, 2019 by the Planning Commission; this Conditional Use Permit included three conditions (Condition No. 21 through 23) stating that alcoholic beverage containers cannot be sold that are single size, smaller than 375 ml or 40 ounces. With adherence to conditions of approval established by the Planning Commission, the use is consistent with Zoning and Development Code requirements.
Finding No. 2: The site is physically suited for the type, density, and intensity of the proposed use including access, utilities, and the absence of physical constraints and can be conditioned to meet all related performance criteria and development standards.
The Applicant is requesting to modify the ABC conditions of approval from a previously approved project (CUP No. 19-032) to allow the sale of single alcoholic beverages of wine and distilled spirits less than 375ml and beer/malt beverages less than 40 oz. The site is physically suited for the type, density, and intensity of the proposed use. The site was previously approved for a Conditional Use Permit to operate and sell alcoholic beverages with an ABC Type 21 (Off-sale, General) license. There are no proposed modifications to the site or structure. The physical characteristics of the site are sufficient to accommodate the business including access and utilities.
Finding No. 3: Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, or materially injurious to persons, property, or improvements in the vicinity in which the project is located.
Conditional Use Permit No. 19-032- R1, as denied on August 23, 2023, does not meet the mandatory CUP findings required pursuant to Section 30-169 findings for denial. Concerns regarding the potential detrimental impacts to the public interest, health, safety, and welfare include that typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed which frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors. Further, by restricting the single sale of alcoholic beverages, minors and transients are discouraged from purchasing, as these are typically priced lower and more affordable.
Environmental:
This project as proposed qualifies for a categorical exemption pursuant to Section No. 15301 (Class No. 1, Existing Facilities) of the California Environmental Quality Act (CEQA), and Section No. 3.22 (Categorical Exemption) of the Local 2019 Guidelines for Implementing the California Environmental Quality Act. The project proposal is to modify the conditional use permit approval to allow the sale smaller single sized alcoholic beverages within an existing building, there are no changes or expansions to the building as part of this application.
FISCAL IMPACT:
None
MOTION:
Approve staff recommendation.