CITY COUNCIL: Appeal of Planning Commission's Decision to Approve Design Review & Use Permit Applications for New Restaurant in Carmel Plaza

Meeting Date: 13 September 2011
Prepared by: Sean Conroy, Plng & Bldg Services Manager

City Council
Agenda Item Summary

Name: Consideration of an appeal of the Planning Commission’s decision to approve Design Review and Use Permit applications for a new restaurant located on the northeast corner of Mission Street and Seventh Avenue in the Carmel Plaza. The project applicant is David Fink.

Description: The applicant is proposing to open a new restaurant that specializes in hamburgers, but also offers a variety of other dishes. The proposal includes 66 interior seats and 13 exterior seats. The project site is located on the northeast corner of Mission Street and Seventh Avenue in the Carmel Plaza, which is in the Central Commercial District.

Overall Cost:
City Funds: N/A
Grant Funds: N/A

Staff Recommendation: Determine whether the Planning Commission’s decision was appropriate.

Important Considerations: Full-line restaurants are considered a Conditional Use in the Central Commercial District. According to CMC Section 17.68, full line restaurants provide “a full line of prepared food and drinks using nondisposable plates, glasses and utensils for immediate consumption on the site. These restaurants provide table service to
patrons of all ages who pay after eating. Takeout service may be provided.”

Decision Record: The Planning Commission approved this project on August 10, 2011. An appeal was filed on August 22, 2011.

Attachments:
• Appeal letter.
• Application materials/plans.
• Planning Commission Staff Report and adopted Findings and Conditions for approval.

Reviewed by:

______________________________ _____________________
John Goss, Interim City Administrator Date

CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR MCCLOUD AND COUNCIL MEMBERS
THROUGH: JOHN GOSS, INTERIM CITY ADMINISTRATOR
FROM: SEAN CONROY, PLNG & BLDG SERVICES MANAGER
DATE: SEPTEMBER 13, 2011
SUBJECT: CONSIDERATION OF AN APPEAL OF THE PLANNING COMMISSION’S DECISION TO APPROVE DESIGN REVIEW AND USE PERMIT APPLICATIONS FOR A NEW RESTAURANT LOCATED ON THE NORTHEAST CORNER OF MISSION STREET AND SEVENTH AVENUE IN THE
CARMEL PLAZA. THE PROJECT APPLICANT IS DAVID FINK.

BACKGROUND AND PROJECT DESCRIPTION
The proposed project would occupy two existing commercial spaces located on the northeast corner of Mission Street and Seventh Avenue in the Carmel Plaza. The spaces were previously occupied by an architectural office and a bank.

The applicant is proposing to create a new restaurant called “What’s Your Beef” that will specialize in gourmet hamburgers but will also offer a full line of other foods. The applicant is proposing 66 interior seats and 13 outdoor seats. Exterior design changes include:

• New entrance door on Mission Street.
• Enclosing an existing breezeway.
• The removal of the existing mural on Mission Street.
• A wood trellis to be located above the outdoor seating area.
• A stucco retaining wall is proposed that will allow for a raised outdoor seating area.
• A guardrail separating the outdoor seating from the right-of-way.

BASIS FOR APPEAL
CMC Section 2.08.070(D) allows the City Administrator to appeal a decision of the Planning Commission to the City Council. The purpose of this appeal is to provide the City Council the opportunity to review the code interpretations made by the Planning Commission regarding full-line and fast-food restaurants.

EVALUATION
Full line Restaurants: Full line restaurants are considered a conditional use in the Central Commercial District and require Planning Commission approval. According to CMC Section 17.68, full line restaurants provide “a full line of prepared food and drinks using nondisposable plates, glasses and utensils for immediate consumption on the site. These restaurants provide table service to patrons of all ages who pay after eating. Takeout service may be provided.”

One aspect of the proposal that is inconsistent with the definition of a full line restaurant is that customers would pay for their food prior to eating. The Commission discussed this issue but ultimately determined that the applicant’s proposal was acceptable. The Council should determine whether this is appropriate.

CMC Section 17.14.040.I(3) establishes additional criteria for full line restaurants. These requirements (a- i) are outlined below followed by a brief staff response. The primary purpose for these requirements is to ensure a high quality dining experience and to avoid the appearance of a traditional fast food restaurant. The Commission determined that the proposal would not resemble a fast food restaurant and would be consistent with the quality dining experience that the code envisions.

a) Any sale of alcoholic beverages shall be subordinate to this primary use.
Response: The application complies with this requirement.

b) Drive-in, formula and fast food establishments are prohibited.
Response: According to CMC Section 17.70, fast food establishments offer food that is 1) pre-made and wrapped before customers place orders, and or 2) served with disposable tableware for on-site food consumption [primary characteristics]. A fast food establishment also exhibits two or more of the following characteristics [secondary characteristics]:

• Food is ordered from a wall menu at a service counter;
• Food consumed on the premises is ordered while customers are standing;
• Payment is made by customers before food is consumed;
• The service counter is closer to an entry/exit than is the seating/dining area; and/or
• The business interior is brightly illuminated (greater than eight candlefoot power as measured in a horizontal plane three feet above the floor).

The two primary characteristics are that meals are pre-made and wrapped and/or are served with disposable tableware. The code then makes the statement that a fast food establishment “also exhibits two or more of the following characteristics…” (emphasis added).

The word “also” could be interpreted to mean “and.” In other words, a fast food restaurant offers pre-made and wrapped food and/or serves the food with disposable tableware, and exhibits two or more of the secondary characteristics. An examination of the secondary characteristics would only be required if the proposal included one or more of the primary characteristics. The Planning Commission supported this interpretation.

If the Council agrees with this interpretation, the applicant’s proposal would not constitute a fast food establishment because it would not exhibit either of the primary characteristics. However, the word “also” could be interpreted to mean “and/or.” In other words, a restaurant that offers pre-made and wrapped food and/or serves the food with disposable
tableware, and/or exhibits two or more of the secondary characteristics listed in the code, would be classified as a fast food establishment. If the Council supports this interpretation, the applicant’s proposal would qualify as a fast food restaurant because food would be ordered from a wall menu while customers were standing and payment would be made before food was consumed.

The Council should determine whether the proposal constitutes a fast food restaurant.

c. Substantially all foods from the standard menu shall be available for purchase during the hours that alcoholic beverages are being served except for the first hour and the last hour of each business day.
Response: The application complies with this requirement.

d. The applications, menus and plans indicate that the business will primarily be a restaurant – full line, and that no more than 20 percent of the total number of seats are at a bar or in a separate bar room. If the use does not meet this standard, the standards in subsection (I)(2) of this section, Drinking Places, shall also apply to the use.
Response: The application complies with this requirement.

e) Customers shall be provided with individual menus while seated at a table or counter.

Options: The Council could consider the following options:
• Uphold the Planning Commission’s decision.
• Revise the Planning Commission’s decision.
• Overturn the Planning Commission’s decision.
• Remand the project back to the Commission with instructions.
• Continue consideration of this appeal with a request for additional information.

RECOMMENDATION
Determine whether the Commission’s decision to approve the project was appropriate.