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Resolution-PC 2013-087RESOLUTION NO. PC2013 -087 A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION APPROVING AN AMENDMENT TO CONDITIONAL USE PERMIT NO. 2013 -05654 AND MAKING A DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY NO. 2013 -00095 FOR A TYPE 64 ALCOHOLIC BEVERAGE CONTROL LICENSE (DEV2013- 00005B) (5522 -5524 EAST LA PALMA AVENUE) WHEREAS, on March 25, 2013, and subject to certain conditions of approval, the Anaheim Planning Commission (hereinafter referred to as the "Planning Commission "), by its Resolution No. 2013 -030, (1) approved Conditional Use Permit No. 2013 -05654 (herein referred to as the "Original CUP ") and to permit a live performance theater located at 5522 -5524 East La Palma Avenue in the City of Anaheim, County of Orange, State of California, as generally depicted on the map attached hereto as Exhibit A (the "Property "), and (2) determined that the public convenience or necessity will be served by the issuance by the California Department of Alcoholic Beverage Control ( "ABC ") of a Type 69 license for a Special On -Sale Beer and Wine license for a theater (herein referred to as " Public Convenience or Necessity No. 2013 - 00095" or the "Original PCN "); and WHEREAS, the Planning Commission did receive a verified Petition to amend the Original CUP and Original PCN (herein referred to as "Conditional Use Permit No. 2010 - 05654B and PCN2013- 00095B "), pursuant to Section 18.60.190 of the Anaheim Municipal Code, to change the license type requested from Type 69 (Special On -Sale Beer and Wine Theater) to Type 64 (Special On -Sale General Theater); and WHEREAS, the Property is currently developed with a four - building industrial park. The Property is located in the Expanded Industrial Area (Development Area 2) of the Northeast Area Specific Plan Area and is subject to the zoning and development standards of Chapter 18.120 of the Code. The Anaheim General Plan designates the Property for Office -Low land uses; and WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on December 16, 2013 at 5:00 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of Chapter 18.60 of the Anaheim Municipal Code, to hear and consider evidence for and against proposed Conditional Use Permit No. 2013- 05654B and Public Convenience or Necessity No. 2013 - 0009513, and to investigate and make findings and recommendations in connection therewith; and WHEREAS, at the time that it considered the Original CUP and Original PCN, the Planning Commission found and determined that the proposed use of the Property pursuant to the Original CUP and the Original PCN was within that class of projects under the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as "CEQA "),which consists of the repair, maintenance, and /or minor alteration of existing public or private structures or facilities, involving negligible or no expansion of use beyond that existing at the time of its determination, and that, therefore, pursuant to Section 15301 of Title 14 of the - 1 - PC2013 -087 California Code of Regulations, the then proposed project would not cause a significant effect on the environment and was, therefore, categorically exempt from the provisions of CEQA; and WHEREAS, the Planning Commission finds and determines that the proposed use of the Property pursuant to Conditional Use Permit No. 2010- 05654B and Public Convenience or Necessity No. 2013- 00095B is within that class of projects under CEQA, which consists of the repair, maintenance, and /or minor alteration of existing public or private structures or facilities, involving negligible or no expansion of use beyond that existing at the time of its determination, and that, therefore, pursuant to Section 15301 of Title 14 of the California Code of Regulations, the change in ABC licenses would not cause a significant effect on the environment and is, therefore, categorically exempt from the provisions of CEQA; and WHEREAS, the Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing pertaining to the request for Conditional Use Permit No. 2013- 05654B, does find and determine the following facts: 1. The request to amend a conditional use permit to change to the operation of the theater from Type 69 (Special On -Sale Beer and Wine Theater) license to a Type 64 (Special On -Sale General Theater) license is properly one for which a conditional use permit is authorized, subject to conditions of approval. 2. The request to amend the conditional use permit would not adversely affect the surrounding land uses and the growth and development of the area because the amendment would not change the proposed operation in any way other than changing the type of alcoholic beverages from beer and wine to beer, wine and distilled spirits. 3. The size and shape of the Property is adequate to allow the full operation of the proposed use in a manner not detrimental to the particular area or to the health, safety and general welfare. 4. The traffic generated by the use would not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area because this request would not change the traffic generated. 5. Amending Conditional Use Permit No. 2013 -05654 under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim and will provide a land use that is compatible with the surrounding area. WHEREAS, the Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing pertaining to the request for a determination of Public Convenience or Necessity No. 2013- 00095B, does find and determine the following facts: -2- PC2013 -087 1. On July 11, 1995, the City Council adopted Resolution No. 95R -134 establishing procedures and delegating certain responsibilities to the Planning Commission relating to the determination of "public convenience or necessity" on those certain applications requiring that such determination be made by the local governing body pursuant to applicable provisions of the Business and Professions Code, and prior to the issuance of a license by the Department of Alcoholic Beverage Control (ABC). 2. Section 23958 of the Business and Professions Code provides that the ABC shall deny an application for a license if issuance of that license would tend to create a law enforcement problem or if issuance would result in or add to an "undue concentration" of licenses, except when an applicant has demonstrated that "public convenience or necessity" would be served by the issuance of a license. For purposes of Section 23958, "undue concentration" means the case in which the premises are located in an area where any of the following conditions exist: (a) The premises are located in a crime reporting district that has a 20% greater number of "reported crimes" (as defined in Section 23958.4) than the average number of reported crimes as determined from all crime reporting districts within the City of Anaheim. (b) As to on -sale retail license applications, the ratio of on -sale retail licenses to population in the census tract or census division in which the premises are located exceeds the ratio of on -sale retail licenses to population in the county. (c) As to off -sale retail license applications, the ratio of off -sale retail licenses to population in the census tract or census division in which the premises are located exceeds the ratio of off -sale retail licenses to population in the county. 3. Notwithstanding the existence of the above - referenced conditions, ABC may issue a license if the Planning Commission determines that the "public convenience or necessity" would be served by the issuance. 4. Resolution No. 95R -134 authorizes the City of Anaheim Police Department to make recommendations related to the public convenience or necessity determinations; and said recommendations shall take the form of conditions of approval to be imposed on the determination in order to ensure that the sale and consumption of alcoholic beverages does not adversely affect any adjoining land use or the growth and development of the surrounding area. 5. The Property is located within Census Tract 218.13 with a population that allows for no off -sale ABC licenses. There are presently three licenses in the tract. In addition, no on- sale licenses are allowed, while nine (9) presently exist within the census tract. The Anaheim Police Department evaluates these requests based on the crime rate within a one - quarter mile radius of the subject site. The proposed location is located in Police Reporting District No. 1239, which has a crime rate that is below the city -wide average and the crime rate within '/ mile of this Property is also below the city -wide average based upon calls for service. Since there is an overconcentration in the number of ABC licenses within this census tract, a determination of public convenience or necessity is required for this request. -3 - PC2013 -087 6. The proposed amendment from a Type 69 ABC license to a Type 64 ABC license does not change any of the original findings used to approve this permit. A determination of "public convenience or necessity" can be made based on the finding that the sale and consumption of alcoholic beverages pursuant to a Type 64 ABC license, under the conditions imposed, will not be detrimental to the health and safety of the citizens of the City of Anaheim as the sale of alcoholic beverages for on- premises consumption is ancillary to the proposed theater and would serve as an added convenience to residents and visitors to the area who choose to patronize this establishment. BE IT RESOLVED that the Planning Commission does hereby approve Conditional Use Permit No. 2013- 05654B and determines that the public convenience or necessity will be served by the issuance of a Type 64 ABC license (Special On -Sale General Theater) for the Property, subject to the conditions of approval set forth in Exhibit B attached hereto and incorporated herein by this reference, which are hereby found to be a necessary prerequisite to the proposed use of the Property in order to preserve the health, safety and general welfare of the citizens of the City of Anaheim. Extensions for further time to complete the conditions of approval set forth in Exhibit B hereto may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. BE IT FURTHER RESOLVED, that Conditional Use Permit No. 2013- 05654B and Public Convenience or Necessity No. 2013- 00095B are approved without limitations on the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City- Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that approval of Conditional Use Permit No. 2013 - 05654B and Public Convenience or Necessity No. 2013- 00095B constitutes approval of the proposed request only to the extent that it complies with the Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of December 16, 2013. Said resolution is subject to the appeal provisions set forth in Chapter 18.60 (Procedures) of the Anaheim Municipal Code pertaining to appeal procedures and may be replaced by a City Council Resolution in the event of an appeal. Ak� CHAIR, ANAHEIM CITY PL 1NG COMMISSION ATTEST: SENIOR StiCRETARY, ANAHEIM CITY PLANNING COMMISSION -4- PC2013 -087 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission held on December 16, 2013, by the following vote of the members thereof: AYES: COMMISSIONERS: BOSTWICK, CALDWELL, LIEBERMAN, PERSAUD, RAMIREZ, SEYMOUR NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: AGARWAL IN WITNESS WHEREOF, I have hereunto set my hand this 16 day of December, 2013. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -5- PC2013 -087 EXHIBIT " A " DEV NO. 2013-00005B APN: 346- 451 -31 �r Source: Recorded Tract Maps and /or City GIS. s Please note the accuracy is +/- two to five feet. -6- PC2013 -087 EXHIBIT "B" CONDITIONAL USE PERMIT NO. 2013-05654B AND PUBLIC CONVENIENCE OR NECESSITY NO. 2013-00095B (DEV2013- 00005B) NO. CONDITIONS OF APPROVAL REVIEW SIGNED BY OFF BY PRIOR TO THE COMMENCEMENT OF THE BUSINESS 1 Due to the change in the use and /or occupancy of the building, plans Planning shall be submitted to the Building Division showing compliance with Department, the minimum standards of the City of Anaheim, including all applicable Building building codes as adopted by the City. The appropriate permits shall be Division obtained for any necessary work. 2 The property owner shall submit a letter to the Planning Department Planning requesting the termination of Conditional Use Permit No. 4094. Department, Planning Services Division 3 Security measures shall be provided to the satisfaction of the Anaheim Police Police Department to Police Department deter unlawful conduct of Department employees and patrons, promote the safe and orderly assembly and movement of persons and vehicles, and to prevent disturbances to the neighborhood by excessive noise created by patrons entering or leaving the premises. GENERAL 4 The performances shall be limited to theatrical dramas, comedies, Planning musicals and plays; and that activities at this business shall not trigger a Department, requirement for a sex - oriented business permit, as set forth in Chapter Planning 18.54 of the Anaheim Municipal Code. Services 5 The maximum number of patrons and seats shall be limited to 150. Planning Department, Planning Services 6 There shall be no exterior advertising or sign of any kind or type, Police including advertising directed Police Department to the exterior from Department within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 7 Any and all security officers provided shall comply with all State and Police Local ordinances regulating their Police Department services, including, Department without limitation, Chapter 11.5 of Division 3 of the California Business and Profession Code. (Section 4.16.070 Anaheim Municipal Code). -7- PC2013 -087 8 Applicant shall not share any profits, or pay any percentage or Police commission to a promoter or any other person, based upon monies Department collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders, or the sale of drinks. 9 The number of persons attending the event shall not exceed the Police maximum occupancy load as determined by the Anaheim Fire Department Department. Signs indicating the occupant load shall be posted in a conspicuous place on an approved sign near the main exit from the room. (Section 25.114(a) Uniform Fire Code). 10 All entertainers and employees shall be clothed in such a way as not to Police be in violation of Section 7.16.060 of the Anaheim Municipal Code. Department 11 Any graffiti painted or marked upon the premises or on any adjacent Planning area under the control of the business owner shall be removed or painted Department, over within 24 hours of being applied. Code Enforcement Division 12 No required parking area shall be fenced or otherwise enclosed for Planning outdoor storage. Department, Code Enforcement Division 13 No outside storage of equipment /furniture shall be permitted. Planning Department, Code Enforcement Division 14 All activities related to the use shall occur indoors, except as may be Planning permitted by an authorized Special Event Permit. Department, Code Enforcement Division 15 Address numbers shall be positioned so as to be readily readable from Police the street. Number should be illuminated during hours of darkness. Department Front and Rear entrance doors shall be numbered with the same address numbers or suite number of the business to be completed within 30 days of approval of this permit. Minimum height of 4" recommended. -8- PC2013 -087 16 Adequate lighting of parking lots, passageways, recesses, and grounds Planning contiguous to buildings shall be provided with lighting of sufficient Department, wattage to provide adequate illumination to make clearly visible the Planning presence of any person on or about the premises during the hours of Services darkness and provide a safe, secure environment for all person, property, and vehicles on -site. All exterior doors shall have their own light source, which shall adequately illuminate door areas at all hours to make clearly visible the presence of any person on or about the premises and provide adequate illumination for persons exiting the building. 17 The Applicant shall defend, indemnify, and hold harmless the City and Planning its officials, officers, employees and agents (collectively referred to Department, individually and collectively as "Indemnitees ") from any and all claims, Planning actions or proceedings brought against Indemnitees to attack, review, Services set aside, void, or annul the decision of the Indemnitees concerning this permit or any of the proceedings, acts or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality or validity of any condition attached thereto. The Applicant's indemnification is intended to include, but not be limited to, damages, fees and /or costs awarded against or incurred by Indemnitees and costs of suit, claim or litigation, including without limitation attorneys' fees and other costs, liabilities and expenses incurred by Indemnitees in connection with such proceeding. 18 The applicant is responsible for paying all charges related to the Planning processing of this discretionary case application within 30 days of the Department, issuance of the final invoice. Failure to pay all charges shall result in Planning the revocation of the approval of this application. Services 19 Approval of this application constitutes approval of the proposed request Planning only to the extent that it complies with the Anaheim Municipal Zoning Department, Code and any other applicable City, State and Federal regulations. Planning Approval does not include any action or findings as to compliance or Services approval of the request regarding any other applicable ordinance, regulation or requirement. 20 The property shall be developed substantially in accordance with plans Planning and specifications submitted to and reviewed by the City of Anaheim Department, and which plans are on file with the Planning Department and as Planning conditioned herein. Services -9- PC2013 -087