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Wednesday, July 18, 2012

Circle K Owner Asks Council to Overturn Alcohol Ruling

• Claims Denial Was Unsubstantiated

BY BILL KOENEKER

MMK Enterprises, Inc., the owner, of the Circle K convenience store located at 21216 Pacific Coast Highway is appealing the planning commission's decision to not allow the store to sell beer and wine.
The city council is scheduled to hear the appeal at its regularly scheduled meeting next week on July 23.
The planning staff is recommending the council deny the appeal and also deny the Conditional Use Permit for “the sale of beer and wine for offsite consumption as an accessory use to the existing Circle K convenience store.”
The proposal was rejected by the planning commission on two separate occasions.
Commissioners were apparently swayed by public opinion that there were already too many outlets where alcoholic beverages can be obtained along that stretch of Pacific Coast Highway.
The appellant, who is represented by Schmitz and Associates, contends in an appeal letter that the basis for denial on the grounds that there are a concentration of too many businesses selling alcohol for off-site consumption is not legal and cannot be implemented by the municipality.
“The city may not deny the [Conditional Use Permit] on the basis of ‘undue concentration’ or ‘saturation’ as it is preempted from making such a finding,” wrote Schmitz and Associates representative Chris Deleau.
However, the staff counters that in 1995, the state amended the code to require ABC  “to deny an application for a liquor license if issuance of that license would result in or add to an undue concentration of liquor licenses.
“Undue concentration is defined as occurring when the premises of the proposed license is located in an area that has 20 percent more reported crimes (which is classified as a high crime reporting district) than the average number of reported crimes for the reporting district as a whole.
“On June 28, 2012, ABC staff confirmed that the subject property is located within a high crime reporting district (District No. 1017).”
The appeal letter also stated, “The planning commission's finding that the proposed use would not be compatible with land uses presently on the subject property and in the surrounding neighborhood was not supported by substantial evidence in the record,
The staff response stated, “The commission considered the mix of uses in the area, the configuration of the lot and its primary use and found that the  request could not be supported based upon the use's incompatibility with the land uses in the surrounding neighborhood.
“The appellant offered to include conditions of approval, which would require that the property owner retain a private security company to patrol. These self-imposed conditions were then reiterated by the appellant in his presentation to the planning commission, however the commission determined that these measures were simply not enough to ensure that the sale of beer and wine would be compatible with the existing surrounding uses in the neighborhood.”
The appellant also insists the planning commission's finding that the proposed use would be detrimental to the public interest, health, safety, convenience or welfare “was not supported by substantial evidence in the record.”
The staff response is that the planning commission heard the matter twice and the commission “considered all evidence presented and concluded that the request would be detrimental to the public interest, health, safety, convenience or welfare.
“The planning commission determined, as it had previously in 2007 under the original CUP application, that an undue concentration existed and approval of the CUP would be detrimental to the public interest, health, safety, convenience and welfare of the City of Malibu.”
The appellant also contends the planning commission's finding under Section 4 of the resolution (inconsistency with General Plan Land Use Plan Policy 4.1.5) and its basis for denial on such grounds is unlawful and inappropriate.”
The staff responded by saying the appellant is incorrect. “All CUPs must be consistent with the General Plan. The Malibu Municipal Code must also be consistent with the General Plan, but regardless, the specific implementation measures must be complied with.
“General Plan Land use Policy 4.1.5 states ‘the city shall prohibit undue concentration of businesses which sell alcohol for offsite consumption.’ To implement this policy, the city shall pursuant to Land Use Implementation Measure 73, require a conditional use permit for sale of alcohol for offsite consumption. An application must comply with the zoning ordinance and be consistent with the General Plan in order to be approved.”
In one instance, according to the appellant, the city "expressly found that General Plan Land Use Policy 4.1.5 could not be utilized as a means to properly regulate the number of establishments of the offsite sales of alcoholic beverages, the planning commission subsequently approved the other listed CUP applications for similarly situated properties/applicants without applying LUP Policy 4.1.5.”
The appeal letter contends that very policy was used to deny a permit for  Circle K
That violates the state Constitution, according to Deleau, who added that it also violates the applicant's equal protection and due process afforded it.
There is another basis for the appeal, according to Deleau, who added.
“The record reflects a clear and direct bias against the applicant and its application based upon the fact that the sales location is a service station. The applicant contends that the denial of its CUP was discriminatory and in violation of this provision of law [and] that the commission's decisions were politically motivated and not factually supported,” the appeal letter goes on to state. 
The commission hearing was for an application for a conditional use permit to allow the offsite sale of alcoholic beverages as an accessory use to the existing uses of the convenience store.
In May 2007, an application was received by the planning department for a CUP for store use, which included a proposal to sell beer and wine as well as the interior remodel of the existing service station.
At that meeting, commissioners heard from homeowners, attorneys and others who protested the opening of another location for the sale of alcoholic beverages given the proximity of so many other outlets in the area.
A second meeting was no different when some of that same group of critics came back to the commission to show opposition.
Critics have vowed to show up again at the upcoming hearing. “We are going to be there. We are not going to let them get away with this,” The staff carried out a reevaluation of the new CUP application and “determined that onsite conditions, which led the planning commission to the aforementioned conclusion, have not changed since 2007.”
During his presentation before the commission, the applicant's consultant Don Schmitz said they were willing to accept almost any conditions the commission or the public would want to impose for approval of the permit.
The applicant also unsuccessfully argued the sale of beer and wine “will be an incidental sale item to the nearly 5000 goods currently offered for sale at the market.”

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