Resolution 13596CITY OF ALAMEDA CITY COUNCIL , RESOLUTION NO. 13 5 9 6
COND11IONALLY APPROVING USE PERMIT UP02 -0043 TO T,EGALIZE THE OPERATION
OF A TAVERN AND TO PERMIT THE EXPANSION OF HOURS OF THE OPERATION OF A
TAVERN AT 1403 ENCINAL AVENUE
WHEREAS, an application was made on December 30, 2002 by Nick B. Zigenis for Ken Ma
& Janice Lee to legalize the operation of a tavern in order to expand the hours of operation to 6:00
a.m. through 2:00 a.m., seven days per week. The current hours of operation are 11:00 a.m. to 12:00
p.m. (midnight), Sunday through Thursday and 11 :00 a.m. to 1:00 a.m., Fridays and Saturdays; and
WHEREAS, the application was accepted as complete on January 29, 2003; and
WHEREAS, the subject property is designated Neighborhood Business on the General Plan
Diagram; and
WHEREAS, the subject property is located in a C -1, Neighborhood Business Zoning District;
and
WHEREAS, the existing tavern use on the subject property is a legal nonconforming use
pursuant to Section 30 -21.3 of the Alameda Municipal Code; and
WHEREAS, the Planning Board of the City of Alameda held a public hearing on this
application on April 28, 2003, and examined pertinent documents and conditionally approved the
application; and
WHEREAS, on May 5, 2003, the Nick B. Zigenis filed an appeal from the action of the
Planning Board; and
WHEREAS, on June 3, 2003, the City Council held a public hearing and examined pertinent
documents as well as the record of the Planning Board hearing; and
WHEREAS, the City Council considered staff responses to the bases of the appellants'
appeal as set out in the staff report, which is hereby incorporated by reference, and finds that there
are merits to the appeal; and
WHEREAS, the City Council of the City of Alameda makes the following findings with
respect to the appellant's bases of appeal and relative to the Use Permit application for extending the
hours of operation for the tavern:
The location of the proposal is compatible with other land uses in the general
neighborhood area.
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Tavern Use:
This finding can be made. The legalization of the tavern subject to conditions affecting hours of
operation, maintenance of the kitchen to provide food service, addition of conditions to the ABC
License, to make the use compatible with the other land uses in the general neighborhood area The
requirement for a 5 -month review would provide the City with the authority to monitor and assess
continued compatibility of the use with other land uses in the neighborhood.
Expanded Hours:
This finding can be made. The proposal to increase the hours of operation to 6:00 a.m. to 11:00 a.m.,
seven days a week (without alcohol service during these hours) would be compatible with the other
business uses within the neighborhood because there are other such businesses in this zone.
Allowing operation for the service of alcohol from 11:00 a.m. to 1:00 a.m., on Sundays through
Thursdays and allowing operation for the service of alcohol from 11:00 a.m. to 2:00 a.m., on Fridays
and Saturdays is compatible with other uses in the neighborhood. The provision to require a 5-
month review of the operation would provide the City with the authority to review the continued
compatibility of the use with the adjacent residential uses.
2. The proposed use is compatible with and will be served by adequate transportation and
service facilities.
Tavern Use & Expanded Hours:
This finding can be made. The site is served by all utilities and by public
street parking is required.
ans
t. No additional off-
3. The proposed use, if it complies with all conditions upon which approval is made
contingent, will not adversely affect other property in the vicinity.
Tavern Use:
This finding can be made. The legalization of the tavern use would not adversely affect the abutting
residential properties and would allow the City to impose conditions to minimize impacts of the use
on adjacent residential properties. The addition of conditions to the ABC License requiring Tavern
use with food service would further enhance compatibility of the use with the adjacent residential
properties. In addition, a 5 -month review of the conduct of the business in the neighborhood would
provide the City with the authority ` to ` assure that the business is not adversely affecting the
neighborhood.
Expanded Hours:
This finding can be made. The allowance for a limited expansion of operating hours, subject to the
conditions contained in this approval, would not have a detrimental affect on the neighborhood
because the altered hours would be compatible with the other business operations within the business
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district. Impacts associated with expansion of weekday and weekend evening hours would be
minimized by imposing conditions and requiring review of the Use Permit in five months.
4. The proposed use relates favorably to the General Plan.
Tavern Use:
This finding can be made. The General Plan recognizes the important historical components of
neighborhood business districts, which includes bars and tavern uses but encourages various uses
that attract mainly pedestrian traffic such as small restaurants (paragraph 3, page 25 at Guiding
Policy (2.5.1)). However, these uses must be "acceptable to neighbors /nearby residents ". Therefore,
encouragement for this business to expand its food services (for daytime activity) and maintain a
license from ABC that allows for food service, relates favorably with the General Plan, providing
this use operates in a manner compatible with nearby residential uses.
Expanded Hours:
This finding can be made. The proposal to expand the early morning hours with the provision that
no alcohol is served during these hours would ensure that the business was maintaining a business
pattern that was compatible with the location. Limiting the late night business hours to 1:00 a.m.,
Sundays through Thursdays and through 2:00 a.m., Fridays and Saturdays, would maintain a healthy
business that would be consistent with other tavern uses in the City. Therefore, the proposed
expanded hours relate favorably to the General Plan.
NOW, THEREFORE, BE IT RESOLVED that the City Council finds that the project is
Categorically Exempt from the California Environmental Quality Act, under Section 15301 of the
CEQA Guidelines, Existing Facilities; and
NOW THEREFORE BE IT RESOLVED that the City Council approves the appeal and
overturns the Planning Board's conditional approval of Use Permit, UP02 -0043 for the legalization
of the tavern use and for the expanded hours and grants the requested Use Permit, subject to the
following conditions:
The tavern may operate between 6:00 a.m. to 11 :00 a.m., 7 -days a week, with a limitation
that no alcoholic beverages are served during this time. The hours for, alcoholic service shall
be limited to 11:00 a.m. through 1:00 a.m., Sunday through Thursday and 11:00 a.m. through
2:00 a.m., Friday and Saturday. These hours of operation and restrictions shall be reflected
in an amended conditioned ABC License, to the satisfaction of the Director of the Planning
and Building Department.
2. The existing kitchen shall be maintained consistent with plans submitted for the Use Permit,
dated as received by Central Permits Office, December 30, 2002 (3- sheets), marked "Exhibit
A", on file in the office of the City of Alameda Planning Department. The existing kitchen
shall remain in use and be licensed with the Alameda County Health Department for food
service, which shall provide at a minimum, hot and cold sandwiches and may include soups,
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salads, and appetizers, to the satisfaction of the Director of the Planning and Building
Department. Food service shall remain available to patrons of the tavern during all business
hours.
3. The business /property owner(s) shall be responsible for ensuring that the premises and
immediate facilities, including the street frontage, shall be kept free of trash and refuse. All
trash shall be kept in enclosed areas, screened from view by the public and adjacent
properties. The handling and disposal of bottles, cans, and similar recyclables shall take
place during the daytime hours (i.e., 7:00 a.m. through 6:00 p.m.) in order to minimize noise
impacts to adjacent residences.
4. All outdoor lighting shall be minimized through downward shielding and similar features, to
minimize light spillage on adjacent residential properties.
5. No outdoor activity shall be permitted on the property and all doors and windows shall
remain closed after 10:00 p.m. All external doors shall be fitted with automatic closing
devices, which shall be kept in good repair. The business operator shall maintain the
cleanliness of the outdoor area used for smoking, which is located within the street right-of-
way.
6. There shall be no live entertainment on the premises and no amplification which can be heard
beyond the property lines of the parcel on which the business is located. Noise generated by
the tavern shall not be audible beyond the property lines of the parcel on which the business
is located.
7. All business operations and structural improvements shall be maintained by the business
operator, in compliance with City Code.
8. All signage on the premises shall conform to the Alameda Municipal Code.
9. This use permit shall be reviewed by the Planning Board within 5- months from the date of
this approval to consider compliance with the conditions of this Use Permit and/or imposing
any additional conditions based on impacts generated by this use, and/or revocation of this
use permit. The applicant /property owner shall be responsible for the payment of costs of
City staff time and materials required in order to accomplish this periodic review.
10. Transfer or Sale of Business. Upon any transfer or sale of this business, City staff may
determine the applicability to renew this Use Permit. By accepting this Use Permit, the
business owner and the property owner agree to accept the revocation of this Use Permit by
the City, as an administrative action, in the event of any transfer of this business use.
11. File with County Recorder. This approved Use Permit shall be filed with the County
Recorder's Office, in order to ensure that these conditions are available to future property
owners.
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12. Vesting Use Permit. Conformance with the conditions of this use permit will be reviewed by
the Planning Board within 5- months of this decision. At the time of this 5 -month review, the
Board will determine the business's compliance with the conditions of this approval in order
to consider if it is appropriate to vest this Use Permit, although vesting shall not alter the
requirements of conditions 10 and 11, as listed above. Violation of any conditions of this
approval, resolution, or injunction shall trigger immediate review to determine compliance
with the conditions of this approval.
13. Limitation of Use. This Use Permit establishes the use of this specific site as a tavern with
food service subject to the conditions listed in this resolution, unless or until the City revokes
this Use Permit or approves an amended Use Permit with amended and/or new conditions or
an alternate use. Hours of operation are specifically limited by the conditions of this Use
Permit (see above listed condition #1).
14. Hold Harmless. The City of Alameda requires that the applicant, or its permitted successors
in interest, defend, indemnify, and hold harmless with counsel acceptable to the City sof
Alameda and its agents, officers, and employees from any claim, action, or proceeding
against the City or its agents, officers, and employees to attack, set aside, void, or annul, any
approval of the City concerning this Use Permit approval. The City of Alameda shall
promptly notify the applicant of any claim, action or proceeding and the City shall cooperate
fully in the defense. If the City fails to promptly notify the applicant of any claim, action, or
proceeding, or if the City fails to cooperate fully in the defense, the applicant shall not
thereafter be responsible to defend, indemnify, or hold harmless the City.
15. Injunction. Nothing in this resolution or any subsequent Use Permit shall be construed to
permit or allow violation of any of the conditions that are the subject of the September 5,
2000 Injunction and subsequent October 17, 2000 judgment, case No. 823168 -2, Alameda
County Superior Court.
16. Acknowledgment of Conditions. The permittee and property owner shall acknowledge in
writing all of the conditions of approval and must accept this permit subject to those
conditions and with full awareness of the provisions of Chapter 30 of the Alameda Municipal
Code in order for this Use Permit to be exercised.
NOTICE. The time in which to seek judicial review of the appeal of this resolution is
governed by the California Code of Civil Procedure, Section 1094.6 and Government Code, Section
65009 (c).
G:\ PLANNING \CC\RESO\2003 \4UP020043CRd
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I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly
adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the 3rd
day of June, 2003, by the following vote to wit:
AYES:
NOES: Councilmembers Kerr and Matarrese
Councilmembers Daysog, DeWitt, and Mayor Johnson - 3.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this
4th day of June, 2003.
Lara Weisiger, City Clerk
City of Alameda