U-2022-006 - PC Reso 2023-02 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 2023-02
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING A CONDITIONAL USE PERMIT (U-2022-006) TO ALLOW FOR
THE CONCURRENT SALE OF MOTOR VEHICLE FUEL AND ALCOHOLIC
BEVERAGES AT AN EXISTING GAS STATION LOCATED AT 11010 N DE
ANZA BOULEVARD
SECTION 1: PROTECT DESCRIPTION
Application No.: U-2022-006
Applicant: Steve Rawlings on behalf of Chevron Stations
Location: 11010 N De Anza Blvd (APN: 309-42-041)
SECTION 11: FINDINGS FOR A USE PERMIT:
WHEREAS, the City of Cupertino received an application for a Conditional Use Permit
(U-2022-006) to allow for the concurrent sale of gasoline and alcohol as described in
Section 1. of this Resolution; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the application; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code section 21000 et seq.) ("CEQA"), together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed
Project and has determined that the Project is exempt from environmental review
pursuant to the categorical exemption in CEQA Guidelines section 15301 for the reasons
set forth in the staff report dated April 25, 2023 and incorporated herein; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
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a) The proposed use, at the proposed location, will not be detrimental or injurious to
property or improvements in the vicinity, and will not be detrimental to the public
health, safety, general welfare, or convenience; and
The proposal meets the requirements of the Municipal Code. The alcohol is not located within
five feet of the cashier stations and front door. As conditioned, there will be no advertisement
of alcoholic beverages at motor fuel islands or illuminated advertisements, there will be no sales
from ice tubs or drive-in windows, and the employees who sell alcohol after 10 p.m. will be at
least 21 years old. The proposed security plan has been reviewed by the Santa Clara County
Sheriff's Department to ensure that the plan adequately addresses any security concerns.
Additionally,food mart operations, including the sale of alcohol, will not be permitted between
11 p.m. and 6:00 p.m. and alcohol sales area would be limited to 52 square feet or about 3
percent of the sales floor area.
b) The proposed development and/or use will be located and conducted in a manner in
accord with the Cupertino Comprehensive General Plan, underlying zoning
regulations, and the purpose of this title and complies with the California
Environmental Quality Act (CEQA).
The property has a land use designation of Commercial /Residential and a zoning of Planned
General Commercial. The Municipal Code allows gas station uses as a conditional use,for
which the location already has an existing Permit. Additionally, the Municipal Code allows
the concurrent sale of alcohol and motor fuel as a conditional use. With the review and approval
of this Permit, the proposal would be compliant with the City's requirements.
Additionally, the project as described is categorically exempt from CEQA pursuant to CEQA
Guidelines section 15301. The Class 1 exemption applies to existing facilities that involve
negligible or no expansion of existing or former use. The proposed project is to allow the sale
of alcohol concurrent with gasoline in an existing sales building. Therefore, the proposed
project would not involve the expansion of the former use (Section 15301, Class 1), will not
significantly expand the use beyond the current use that already exists and previously exists,
and will not have a significant effect on the environment.
WHEREAS, the Planning Commission is the approval authority for this project and is
granted the authority by the Municipal Code to exercise its independent judgment,based
on the record before it, for purposes of the California Environmental Quality Act; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the
following actions:
Resolution No. 2023-02 U-2022-006 April 25,2023
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1. Exercises its independent judgment and determines that the Project is exempt from
CEQA pursuant to CEQA Guidelines section 15301. The Class 1 exemption applies to
existing facilities that involve negligible or no expansion of existing or former use.The
proposed project is for allowing the sale of alcohol concurrent with gasoline in an
existing sales building. Therefore, the proposed project would not involve the
expansion of the former use (Section 15301, Class 1), will not significantly expand the
use beyond the current use that already exists and previously exists, and will not have
a significant effect on the environment.
2. Approves the application for a Conditional Use Permit, Application no. U-2022-006
subject to the conditions which are enumerated in this Resolution beginning on PAGE
2 thereof. The conclusions and sub conclusions upon which the findings and
conditions specified in this resolution are based, including those contained in the
Public Hearing record concerning Application no. U-2022-006 as set forth in the
Minutes of Planning Commission Meeting of April 25, 2023, are hereby incorporated
by reference as though fully set forth herein
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT
1. APPROVED EXHIBITS
This approval is based on Exhibits titled, "Service Station #9-5700, 11010 N De Anza
Blvd., Cupertino, CA 95014," prepared by GRH, dated May 9,2016 consisting of three
pages labeled A Site Plan, Floor Plan, and Security Camera Layout except as may be
amended by the conditions contained in this Resolution
2. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
3. ACCURACY OF PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations,building setbacks,property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of property data may invalidate this approval and may
require additional review.
4. USE APPROVAL
Approval is hereby granted to allow the concurrent sale of motor vehicle and alcoholic
beverages. Sales of alcohol shall cease at 11:00 p.m. with cooler doors locked from 12
Resolution No.2023-02 U-2022-006 April 25,2023
Page 4
a.m. to 6 a.m. Sales area shall be limited to those areas shown on approved plans and
shall at no time exceed 52 square feet of the sales floor area.
The applicant shall comply with Chapter 19.132 of the Municipal Code. The Planning
Commission shall review amendments to the project considered major by the Director
of Community Development.
5. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past site approvals, including, but not
limited to U-1990-17, DIR-2007-09, DIR-2008-01, and DIR-2018-01 shall remain in
effect unless superseded by or in conflict with the conditions contained in this
resolution.
6. ABC APPROVAL
The applicant shall obtain all licenses/approvals as required from the State of
California Department of Alcohol and Beverage Control prior to sales of alcoholic
beverages.
7. LAW ENFORCEMENT SUPPORT
The property owner shall pay for any additional Sheriff enforcement time resulting
from documented incidents related to alcoholic beverage sales at the City's contracted
hourly rate with the Sheriff Department at the time of the incident.
8. USE PERMIT REVIEW/ADDITIONAL RESTRICTIONS
If complaints have been received related to the tenant(s) under this use permit, and
the complaints were not addressed immediately by the property owner, then the
Planning Commission shall conduct a public hearing on the use permit at which time,
the approval for concurrent sale of motor vehicle fuel and alcoholic beverages may be
modified or revoked.The City reserves the right to require additional security patrols
and/or restrictions as prescribed by the Sheriff's Office.
9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application,to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
Resolution No. 2023-02 U-2022-006 April 25,2023
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harmless the City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties") from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as "proceeding") brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys' fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
incurred by the Applicant, the City, or the parties initiating or bringing such
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel and shall
include City Attorney time and overhead costs and other City staff overhead costs
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys' fees, or costs
awards, including attorneys' fees awarded under Code of Civil Procedure section
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment)if made necessary
by proceedings challenging the project approvals and related environmental
review, if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
11. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements,and other exactions. Pursuant
to Government Code Section 66020(d) (1), these Conditions constitute written
notice of a statement of the amount of such fees, and a description of the
Resolution No. 2023-02 U-2022-006 April 25,2023
Page 6
dedications,reservations, and other exactions. You are hereby further notified that
the 90-day approval period in which you may protest these fees, dedications,
reservations, and other exactions, pursuant to Government Code Section 66020(a),
has begun. If you fail to file a protest within this 90-day period complying with
all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
PASSED AND ADOPTED this 251h day of April, 2023, Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES: COMMISSIONERS: Fung, Mistry, Scharf, Madhdhipatla
NOES: COMMISSIONERS: None
ABSTAIN: COMMISSIONERS: None
ABSENT: COMMISSIONERS: None
RECUSED: COMMISSIONERS: Lindskog
ATTEST: APPROVED:
A'111� . W-- IV
Piu Ghosh Steven Scharf
Planning Manager Chair, Planning Commission