01. M-2006-02
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014
DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM
Application: M-2006-02 Agenda Date: July 11, 2006
Applicant: Rick Cole for Valero Gas Station
Owner: Christine Khaziri, Nevada De Anza Family Limited
Location: 10002 North De Anza Boulevard, APN 316-26-095
Application Summary:
Modification to a Use Permit (file no. 5-U-98*) to allow sale of beer and wine at an
existing service station (*corrected file number)
RECOMMENDATION:
Staff recommends that the Planning Commission approve:
1. The use permit modification (file no. M-2006-02), in accordance with the model
resolution.
Project Data:
General Plan Designation:
Zoning Designation:
Specific Plan:
Project Consistency with:
General Plan:
Zoning:
Environmental Assessment:
Commercial/ Office/ Residential
P- Planned Development
Heart of the City
Yes
Yes
Categorical Exemption
BACKGROUND:
The property is located on the northeast comer of De Anza Boulevard and Stevens
Creek Boulevard. The lot consists of an existing 2,095 square foot service station and
car wash on a 21,344 square foot lot. Surrounding properties include commercial
properties to the north, east and west, and mixed use (commercial and residential) to
the south.
DISCUSSION:
The applicant requests modification of a use permit 5-U-98 to allow sale of beer and
wine at an existing service station. The City Council approved the use permit on
November 2, 1998, to allow for a 1,230 square foot service station and 1,021 square foot
car wash. At that time, the use permit provided for the convenience store, but did not
approve beer and wine sales. Since the municipal code Chapter 19.106 requires a use
permit for the concurrent sale of alcoholic beverages and gasoline, the existing use
permit must be amended.
I-I
The municipal code allows for the concurrent sale of alcoholic beverages and gasoline
in a General Commercial (CG) zone where it is compatible with existing uses (Exhibit
A). lbis property is located at a major intersection and is not adjacent to residential
development. Approved hours of operation are from 7 a.m. to 11 p.m., seven days a
week. They are not approved to operate 6 a.m. to 12 p.m., as stated on their site plan,
unless a use permit is granted for late hours. The proposal shall comply with the
operational restrictions set forth in the municipal code Chapter 19.106.
The applicant's letter cites Section 23958,4 of the Alcoholic Beverage Control Act (see
Exhibit B). This section refers to "undue concentration'! of licenses. The letter states
that the Department of Alcoholic Beverage Control has determined that the census tract
is not over concentrated; staff verified that this is so. Other gas stations with concurrent
alcoholic beverages sales are:
Chevron
Chevron
McElroy's Mobile Service
10023 S. De Anza Boulevard
11010 N. De Anza Boulevard
22510 Stevens Creek Boulevard
Staff spoke with John Hirokawa of the Sheriff's Department regarding any concerns
they might have. He stated that there have not been any problems with concurrent
gas/ alcoholic beverage sales in Cupertino.
Enclosures:
Model Resolution
Exhibit A - Concurrent Sale of Alcoholic Beverages and Gasoline, Chapter 19.106
Exhibit B - Alcoholic Beverage Control Act Section 23958.4
Exhibit C - Letter of Description
Plan Set
Prepared by: Noren Caliva . -., .
Approved by: Steve Piasecki, Director of Community Developme~-'-c:.v---
G:planning/pdreportlpcUsereports/2006Ureports/M-2006-02.doc
2
1-2
M-2006-02
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
MODEL RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A USE PERMIT MODIFICATION TO ALLOW THE CONCURRENT SALE OF
ALCOHOLIC BEVERAGES AND GASOLINE AT AN APPROVED SERVICE
ST A TION/CONVENIENCE STORE
SECTION I: F~INGS
WHEREAS, the Planning Commission of the City of Cupertino received an application for a Use Permit
Modification, as described on Page I of this Resolution; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
WHEREAS, the ~lanning Commission finds that the application meets the following requirements:
a) That the use is in conformance with the General Plan of the City of Cupertino, and is not detrimental
to existing uses or to uses specifically permitted in the zone in which the proposed use is to be
located.
b) That the property involved is adequate in size and shape to accommodate the proposed use.
c) That the proposed use will not generate a level of traffic over and above that of the capacity of the
existing street system.
d) That the proposed use is otherwise not detrimental to the health, safety, peace, morals and general
welfare of persons residing or working in the neighborhood of such proposed uses, nor injurious to
property and improvements in the neighborhood.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this
matter, the application for use permit is hereby recommended for approval, subject to the conditions
which are enumerated in this Resolution beginning on Page 2 thereof; and
That the subconcIusions upon which the findings and conditions specified in this resolution are based
and contained in the public hearing record concerning Application M-2006-02 as set forth in the Minutes
of the Planning Commission Meeting of July 11, 2006, and are incorporated by reference as though fully
set forth herein.
SECTION II: PROJECT DESCRIPTION
Application No.: M-2006-02
Applicant: Rick Cole for Valero Gas Station
Location: 10002 North De Anza Boulevard
1-3
Resolution No.
Page-2-
M-2006-02
July 11.2006
SECTION ill: CONDITIONS ADMINISTERED BY THE COMM1JNITY DEVELOPMENT DEPT.
1. PREVIOUS CONDITIONS OF APPROV AL
All prior use permit conditions for 5-U-98 shall remain in effect, unless in conflict with the
conditions of Approval for M-2006-02.
2. COMPLIANCE WITH MUNICIPAL CODE.
Applicant shall comply with Section 19. I 06.060 of the Cupertino Municipal Code.
3. HOURS OF OPERATION
Hours of operation shall be 7 a.m. to 11 p.m.
PASSED AND ADOPTED this 11th day of July, 2006 at a regular meeting of the Planning Commission
of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS:
ATTEST:
APPROVE
Steve Piasecki
Director of Community Development
g/planning/pdreportlres/2006/M -2006-02
Marty Miller, Chairperson
Cupertino Planning Commission
j -4--
EXHIBIT A
19.106.010
CHAPI'ER 19.106: CONCURRENT SALE 01' ALCOBOUC BEVERAGES AND GASOLINE
Section
19.106.010
19.106.020
19.106.030
19.106.040
19.106.050
19.106.060
19.106.070
Purpose.
Applicability .
GraDJing of use ~1illL
Public hearing.
Use permit grant or denia1-Fmdings.
Restrictions.
Appeals.
19.106.010 PuaJlOse.
The purpose of this chapter is to establish regulations
pertllining to thor establisJ'IInents which concurrently sell
motor vehicle fuel and alcoholic beverages, including beer
and wine. (Ord. 1478, 11 (part), 1988)
19.106.020 ApplicabDity.
This chapter applies to any establishment within a
General Commercial (CG) zone which, pursuant to a
conditional use permit. sells or proposes to sell.
concurrently, alcoholic beverages. including but DOt limited
to beer and wine, and motor vehicle fuel. (Ord. 1478. f 1
(part). 1988)
19.106.030 Granting of Use Peawit.
An establishment subject to this chapter may be
permitted where it, in the opinion of the PIlInning
Commiuinn, is compatible with existing and plllllned uses
in the particu1ar zone or neighborhood. (Ord. 1478. 11
(part), 1988) "
19.106.040 PubUc BeariDI.
A. The Plllnning Commission. after having received
an application for a conditional use permit by any person
proposing a use which is subject to this chapter, shall set a
time for"the holding of a public hearing thereon.
. B. Any person may address the pJlInning
Cornmiqion and present testimony regarding the particular
conditional use permit application. (Ord. 1478, II (part).
1988)
19.106.050 Use Permit Grant or ])epiAI-FlDdings.
Written findings regarding the granting or denial of
any conditional use permit subject to this chapter shall be
mllM by the PJlInning Commk,ion. and shall be based On
substantial evidence in light of the entire administrative
record. (Ont. 1478. 11 (part). 1988)
19.106.060 RestrictloDll.
Notwithstanding any other provisions of law. any
estabHllhmP.llt subj~ to this chapter shall abide by the
following restrictions. These standards are the minimum
state staDdards which do not limit local regulation otherwise
permitted under Section 23790.5 of the Busmeu and
Professions Code:
A. No beer or wine shall be displayed within five
feet of the cash register or"the front door nnless it is in a
permanently affixed cooler.
B. No advertisement of alcoholic beverages shall be
displayed at motor fuel islands.
C. No sale of alcoholic beverages shall be made
from a drive-in window.
D. No display or sale of beer or wine shall be made
from an ice tub.
E. No beer or wine advertising shall be located on
motor fuel isla.,ds and DO self-UIuminllted advertising for
beer or wine shall be located on buildings or windows.
F. Employees on duty between the hours often p.m.
and two a.OL who sell beer or wine shall be at least. twenty-
oneyearsofage. (Ord.1731, (part), 1996; Ord. 1478. fi 1
(part), 1988)
19.106.070 Appeals.
A. AI1y person aggrieved by a decision of the
PJanning Commigion under the provisions of this chapter
may appeal the decision to the City Council by filing written
notice of the appeal with the City Oerk within five days
after the date of the decision.
B. Such notice of appeal must state:
1. The asserted error;
2. The grounds upon which the appeal is taken; and
3. The [l1ln1e of the party appealing.
The notice of appeal must be signed by the party appealing.
or by his agent. Such notice of appeal sball DOt be effective
unless it is filed with the City Clerk within the time required
by subsection A of this section.
C. A public hearing shall be held by the City
Council within thirty days from the date of the filing of the
notice.
125
1-5
19.106.070
Cupertino. Zoning
126
D. Notice of the time and place of tile hearing shall
be given by mall. postage prepaid. and dispatched not less
than ten days prior to the hearing to the applicant at his
address as shown upon notice of appeal.
E. The City Council sball hear the appeal. At the
conclusion of the beariDg. the Council may affum, reverse
or modify the action appealed; subject, however. to the
provisions of this chapter. The findinv and decisions of the
City Council shall be entered upon the minutes of the City
Council. and the decision shall be final and shall take effect
as directed by the City Council. (Ord. 1478, ~ 1 (part).
1988)
,..- (p
LA L.oaes ~DpC:kj~.JU-Lj:.tOL.)
of filing application for license, accompany the application
license fee based upon a reasonable estimate of the amount of
gallonage to be produced by the applicant.
Exhibit B
23956. Any applicant for an offsale general license shall, at the
time of filing application for such license, accompany the
application with the minimum license fee required or such larger fee
as the applicant elects.
23957. Applications for licenses for the Tet~il sale of alcoholic
beverages for premises which are to be constructed or which are in
the process of construction shall contain the information required by
this article and such other information concerning the proposed
premises as the department may require to assist it in determining
whether the proposed premises will qualify for a license.
23958. Upon receipt of an application for a license or for a
transfer of a license and the applicable fee, the department shall
make a thorough investigation to determine whether the applicant and
the premises for which a license is applied qualify for a license and
whether the provisions of this division have been complied with, and
shall investigate all matters connected therewith which may affect
the public welfare and morals. The department shall deny an
application for a license or for a transfer of a license if either
the applicant or the premises for which a license is applied do not
qualify for a license under this division.
The department further 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 as provided in Section 23958.4.
23958.1. Notwithstanding the provisions of Section 23958, the
department is not required to investigate the personal qualifications
of a licensed beer and wine wholesaler who applies for additional
beer and wine wholesaler licenses.
23958.2. Notwithstanding the provisions of Section 23958, the
department is not required to investigate the personal qualifications
or premises of a currently licensed person when a license is being
transferred between partners and no new partner is being licensed.
G3958~0 (a) For purposes of Section 23958, "undue concentration"
means the case in which the applicant premises for an original or
premises-to-premises transfer of any retail license are located in an
area where any of the following conditions exist:
(1) The applicant premises are located in a crime reporting
district that has a 20 percent greater number of reported crimes, as
defined in subdivision (c), than the average number of reported
{-7
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CA Codes (bpc:Lj~)U-Lj'JbL)
rue;c:; '"t Vl v
crimes as determined from all crime reporting districts within the
jurisdiction of the local law enforcement agency.
(2) 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 applicant premises are located exceeds the
ratio of on-sale retail licenses to population in the county in which
the applicant premises are located.
(3) 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 applicant premises are located exceeds the
ratio of off-sale retail licenses to population in the county in
which the applicant premises are located.
(bl Notwithstanding Section 23958, the department may lssue a
license as follows;
(1) With respect to a nonretail license, a retail on-sale bona
fide eating place license, a retail license issued for a hotel,
motel, or other lodging establishment, as defined in subdivision (b)
of Section 25503.16, a retail license issued in conjunction with a
beer manufacturer's license, or a winegrower's license, if the
applicant shows that public convenience or necessity would be served
by the issuance.
(2) With respect to any other license, if the local governing body
of the area in which the applicant premises are located, or its
designated subordinate officer or body, determines within 90 days of
notification of a completed application that public convenience or
necessity would be served by the issuance. The 90-day period shall
commence upon receipt by the local governing body of (A) notification
by the department of an application for licensure, or (B) a
completed application according to local requirements, if any,
whichever is later.
If the local governing body, or its designated subordinate officer
or body, does not make a determination within the 90-day period,
then the department may issue a license if the applicant shows the
department that public convenience or necessity would be served by
the issuance. In making its determination, the department shall not
attribute any weight to the failure of the local governing body, or
its designated subordinate officer or body, to make a determination
regarding public convenience or necessity within the 90-day period.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Reporting districts" means geogr~phical areas within the
boundaries of a single governmental entity (city or the
unincorporated area of a county) that are identified by the local law
enforcement agency in the compilation and maintenance of statistical
information on reported crimes and arrests.
(2) "Reported crimes" means the most recent yearly compilation by
the local law enforcement agency of reported offenses of 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.
(3) "popUlation within the census tract or census division" means
the population as determined by the most recent United States
decennial or special census. The population determination shall not
operate to prevent an applicant from establishing that an increase of
resident population has occurred within the census tract or census
division.
(4) "population in the county" shall be determined by the annual
population estimate for California counties published by the
Population Research Unit of the Department of Finance.
/--'0
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CA Codes (bpc:23Y5U-nYbL)
ra~~ J Vi V
(5) "Retail licenses" shall include the following:
(A) Off-sale retail licenses: Type 20 (off-sale beer and wine)
and Type 21 (off-sale general) .
(B) On-sale retail licenses: All retail on-sale licenses, except
Type 43 (on-sale beer and wine for train), Type 44 (on-sale beer and
wine for fishing party boat), Type 45 (on-sale beer and wine for
boat), Type 46 (on-sale beer and wine for airplane), Type 53 (on-sale
general for train and sleeping car), Type 54 (on-sale general for
boat), Type 55 (on-sale general for airplane), Type 56 (on-sale
general for vessels of more than 1,000 tons burden), and Type 62
(on-sale general bona fide public eating place intermittent dockside
license for vessels of more than 15,000 tons displacement).
(6) A "premises to premises transfer" refers to each license being
separate and distinct, and transferable upon approval ot the
department.
(d) For purposes of this section, the number of retail licenses in
the county shall be determined by the most recent yearly retail
license count published by the department in its Procedure Manual.
(e) The enactment of this section shall not affect any existing
rights of any holder of a retail license issued prior to April 29,
1992, whose premises were destroyed or rendered unusable as a result
of the civil disturbances occurring in Los Angeles from April 29 to
May 2, 1992, to reopen and operate those licensed premises.
(f) This section shall not apply if the premises have been
iicensed and operated with the same type license within 90 days of
the application.
____--....__.~"__.._~...._.u..__~__
23959. If an application is denied or withdrawn, one-fourth of the
license fee paid, or not more than one hundred dollars ($100), shall
be deposited in the Alcohol Beverage Control Fund as provided in
Section 25761. The balance of this amount shall be credited on any
taxes then due from the applicant under Part 14 (commencing with
Section 32001) of Division 2 of the Revenue and Taxation Code or the
Sales and Use Tax Law, and the remaining portion shall be returned to
the applicant.
23961. (a) If, at the conclusion of the period prescribed by the
department for the filing of applications for issuance or transfer of
onsale general licenses or offsale general licenses in any county in
its notice of intention to receive applications therefor published
pursuant to Sections 23821 and 24070, the department finds that there
are more applicants for the particular type of license than there
are licenses available for issuance or transfer under Sections 23821
and 24070 the department shall, within 60 days following the
conclusion of said period, conduct a drawing to determine the
priority in which all of such applications filed with it shall be
considered. No more than one such drawing shall be made in any county
in anyone year, and no person will be entitled to more than one
opportunity to participate in such a drawing in any county with
respect to an application for issuance or transfer of anyone type of
license. The number drawn by any applicant shall indicate the
priority to be given to the consideration of his application but
shall not insure the issuance of a license by the department.
(b) If a drawing is not conducted as provided in subdivision (a)
of this section, applications for issuance of original onsale general
licenses and off sale general licenses in a county or transfer of
I-q
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EXHIBIT C
DeAnza USA Gas Family Partnecship
dba Cupertino Valero Carwash
10002 N De Anza Blvd.
Cupenino~ CA. 95014
408-252-1997
July 5,2006
Noren Caliva
Planning Intem
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: Public Convenience and Necessity
Dear Ms. Caliva:
In regard to Section 23958.4 of the Alcoholic Beverage Control Act DeAnza, USA G~s
Family Partnership, believes that the premises meet the requirements of public convenience
and necessity for the fonowing reasons:
1. The proposed addition of off sale beer and wine license will be unique to this census
tract, as there is no other type of this business. mini-market, gas station. and canvash;
2. The proposed addition of off sale beer and wine license is necessary to remain
competitive with other gas stations, mini markets in the area.
3. According to the Department of Alcoholic Beve~e Control, the census tract is not
over concentrated with off sale alcoholic beverage licenses, and the proposed use
would not contribute to an excess concentration of establishments which sell alcoholic
beverages;
4. This gas station, mini-market and cae wash would not adversely :affect the peace, health,
safety, morals or welfare of persons residing or working in the surrounding area. We
believe that our store has enhanced the surrounding community and neighborhood;
5. The proposed addition of an off sale beer and wine license would not impair the value
of the property of other persons located in the vicinity of the site. The site has been
operating for many years and is situated and oriented in such a manner that it would not
adversely impact the residential uses or conflict with other businesses located on any
street of this m-ea.;
6. The proposed addition of off sale beer and wine sales is not located within 500 feet of
any private or public school;
7. The proposed addition of off sale beer and wine sales to the existing gas station, mini-
market and car wash is adequately served by streets of sufficient width;
8. This proposed addition of sale of off sale beer and wine license operntion would not
interfere with the quiet enjoyment of the property by the residents that live within this
area;
{-IO
. .-v -. ~ - ... ~ . - . " ~ . ~
Page two
July 5,2006
9. The pwposed sale of off saJe beer and wine sales would not pose a detriment to the
immediate neighborhood or worsen any current law entorcement problem as the sales
would be incidental to the sales of the gas station, mini-market and car wash.
10. Many of my customers have requested that I add beer and ,_vine sales to this mini-
market as it would be a convenience for them. not having to go to another store to
purchase beer or wine.
Please call Rick Cole @ 408-297-2587 if you have any questions.
Sincerely.
.
Christine V. Khaziri
General Partner
DeAnza USA Gas Family Partnership
( ...- /I
SYNOPSIS
NEVADA DEANZA FAMILY UMITED PARTNERSHIP is applying
for a MA]ORAMENDMENT (M) for EXISTING USE PERMIT
at VALERO GAS, MINI MART & CAR WASH
located at: 10002 N De Anza Blvd., Cupertino to ALLOW the Sales of Beer
and Wine on a limited basis (See Site Plans Attached).
NEVADA DEANZA FAMILY UMITED PARTNERSHIP has been
given a copy of Chapter 19.106: Concurrent Sale of Alcoholic Beverages
and Gasoline and recognizes the Restrictions especially Section 19.106.060
with Restrictions that are the State Standards which do not limit local
regulations otherwise permitted under Section 23790.5 of the Business and
Professions Code.
NEVADA DEANZA FAMILY LIMITED PARTNERSHIP will comply
with all of the Restrictions with reference to the above referred to Chapter
19.106 and any other reasonable conditions that the Cupertino Planning
Department may place on NEVADA DEANZA FAMILY LIMITED
PARTNERSHIP regarding the sales of beer and wine at 1002 N De Anza
Blvd, Cupertino.
NEVADA DEANZA FAMILY UMITED PARTNERSHIP has a
pending Department of Alcoholic Beverage Control Application for a
beer and wine license (type 20-off sale beer and wine). The Department has
told NEVADA DEANZA FAMILY LIMITED PARTNERSHIP they
need at peN Letter from Local Governing Body.
Investigator Gordon Gordoun from ABC Department will verify that
NEVADA DEANZA FAMILY UMITED PARTNERSHIP'S location at
1002 N De Anza Blvd, Cupertino is Not in a High Crime Area and is
Not in a Census Tract that is over concentrated with Off Sale Alcoholic
Beverages. Investigator Gordoun's telephone number is 408-277-3563.
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_ ___._ _ ._."y19tNi'IY MAP
RECEIVED
- MAY 0 8 2006
BY:
,
,
SITE PLAN
EXISTING
VALERO GAS, MINI MART & CAR WASH
10002 N. DE ANZA BLVD., CUPERTINO, CA 95014
~
~
Site Area:
Net Area:
1,045 sq ft Mini Mart
1,050 sq ft Car Wash
Gross Area:
21,344 sq ft
.489 acre
Building Area:
1,045 sq ft Mini Mart
1,050 sq ft Car Wash
Existing One Story
Existing HoIUS of Operation
6am to 12 pm Daily
Existing Use-Gasoline Sales, Mini Mart & Car Wash '
proposed Use-Gasoline Sales,
Mini Mart wi Beer & Wine Sales & Car Wash
Existing Parking
i,
-,~-~.
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