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                                              Council Meeting Date: February 2, 2010
                                                               Staff Report #: 10-011

                                                                     Agenda Item #: E1

PUBLIC HEARING:        Consideration of an Appeal of the Planning Commission’s
                       Decision to Approve an Administrative Permit for Outside
                       Seating in Conjunction with Food Service Establishments
                       (Peet's Coffee & Tea and Rubio's Mexican Grille) and for On-
                       Site Sale of Beer and Wine in Conjunction with a Restaurant
                       Use (Rubio's Mexican Grille only) at the Safeway Retail
                       Services Building (515 El Camino Real), Zoned C-4 ECR(X)
                       (General Commercial, Applicable to El Camino Real,
                       Conditional Development)


Staff recommends that the City Council uphold the decision of the Planning Commission
to approve an administrative permit for outside seating in conjunction with food service
establishments (Peet's Coffee & Tea and Rubio's Mexican Grille) and for on-site sale of
beer and wine in conjunction with a restaurant use (Rubio's Mexican Grille only) in the
C-4 ECR(X) (General Commercial, Applicable to El Camino Real, Conditional
Development) zoning district. The findings and actions for approval as adopted by the
Planning Commission are provided as Attachment A.


Since the 1950s, Safeway has operated a grocery store at the northwesterly corner of
El Camino Real and Middle Avenue. In 2001, Safeway and the neighborhood began
working collaboratively on a design proposal for a replacement structure that would be
acceptable to the neighborhood and feasible for Safeway. On November 8, 2005, the
City Council approved a rezoning and Conditional Development Permit (CDP) for the
construction of a new 65,017-square-foot grocery store and 11,500-square-foot retail
services building (76,517 square feet total). On March 13, 2007, the City Council
approved a CDP revision that included changes to the grocery store layout and
footprint, removal of nine off-street parking spaces, and modifications to the exterior
colors and sign plan. Construction of the grocery store (525 El Camino Real), retail
services building (515 El Camino Real), and various site improvements is complete.
Tenant improvements for individual businesses in the retail services building are
occurring as new tenants arrive.
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Staff Report #10-011

Currently, the retail services building tenancy is:

   •   Suite 100: Peet’s Coffee & Tea (“Peet’s”)
   •   Suite 110: Rubio’s Mexican Grille (“Rubio’s”)
   •   Suite 120: Vacant
   •   Suite 130: Vacant
   •   Suite 140: T-Mobile/Intouch Wireless (tenant improvements in progress)
   •   Suite 150: Menlo Park Cleaners
   •   Suite 160: Beauty Avenue (tenant improvements in progress)

The neighborhood Working Group that was formed during the redevelopment process
still meets occasionally to discuss issues around the site and its operations. In
preparation for the administrative permit application, the applicant met with the Working
Group and incorporated some of their suggestions into the original proposal.


The applicant (Safeway) is requesting an administrative permit for outside seating in
conjunction with Peet's and Rubio's, and for on-site sale of beer and wine in conjunction
with Rubio's only. Both tenants are located toward the southern corner of the retail
services building, adjacent to the Middle Avenue pedestrian/bicycle entrance. Project
plans are available as Attachment B9-B18. The grocery store currently has its own
outside seating, which is specifically permitted by the CDP. Administrative permits are
subject to the review and approval of the Community Development Director, unless

Outside Seating

The outside seating for Peet’s would be located on the outside of the entry arcade,
detached from the storefront. This area currently consists of landscaping, including a
crepe myrtle tree that would be relocated elsewhere on site. The seating area would
consist of colored concrete and would be separated from the main walkway surface by
a band of textured paving materials. The outer edge of the Peet’s seating area would
be enclosed by 16-inch weathered steel railings and 18-inch concrete bollards, and
surrounded by low landscaping, all of which would match the areas surrounding the
grocery store’s outside seating. The accessible parking space adjacent to the Peet’s
seating area would be relocated one space towards the east, and the standard parking
space would be converted to landscape reserve. This area would then be used for
enhanced landscaping, as well as parking for four bicycles. Landscape reserve spaces
are considered to be part of a site’s off-street parking requirement, and can be
converted back to parking use in the future, if warranted.

The outside seating for Rubio’s would be located directly adjacent to the storefront,
along a portion of the walkway that is already paved. The seating area would be
surrounded by a 3-foot tall, black metal railing, in order to address requirements of the
California Department of Alcoholic Beverage Control (ABC). The patio would be
enhanced by hanging planter boxes and potted palms. The addition of this seating area
would require the existing landscaped areas next to the curb to be reduced in size, in
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Staff Report #10-011

order to allow for adequate pedestrian access around the seating area. In response to
earlier comments from the Working Group, the applicant ensured that the walkway
around the Rubio’s seating area would have a minimum of eight feet of clear width, and
modified the railing to have rounded corners (as viewed in plan view). Two crepe
myrtles in the landscape strip would also be relocated elsewhere on site. The revised
landscape strip would have low railings, bollards, and landscaping to match the design
of those around Peet’s and the grocery store seating area, which have the intent of
protecting pedestrians and users of outdoor seating from potential vehicular conflicts.

On-Site Beer and Wine Sales

The applicant is proposing to add an ABC Class 41 (“On Sale Beer & Wine – Eating
Place”) license to Rubio’s. This license type authorizes the sale of beer and wine for
consumption in conjunction with a “bona fide” eating place. On-site consumption would
be permitted within the interior restaurant as well as in the outdoor patio area. As noted
earlier, the patio would be enclosed by a railing, which is necessary to meet ABC
requirements that restaurant outside seating areas be enclosed by a permanent barrier.
These requirements have the general objective of helping supervise and control alcohol
consumption. The proposal for on-site beer and wine sales would generally be similar
to the operations of other restaurant uses along El Camino Real and in Downtown, and
would provide a convenience for patrons of the restaurant.

Other Elements

The applicant has also included the following enhancements as part of the proposal:

   •   Tables and chairs would be added in the area between the retail building and
       grocery store for additional, informal seating; and
   •   Landscaping would be added to better screen the existing utility connections
       along Middle Avenue, next to the retail service building.

Administrative Review and Action

As specified by Zoning Ordinance Section 16.82.440, when reviewing an administrative
permit application, the Community Development Director shall consider and give due
regard to the nature and condition of all adjacent uses and structures, and to general
and specific plans for the area in question and surrounding areas, and the impact of the
application thereon. The Community Development Director shall determine whether or
not the establishment, maintenance, or operation of the use applied for will, under the
circumstances of the particular case, be detrimental to the health, safety, morals,
comfort and general welfare of the persons residing or working in the neighborhood of
such proposed use, or whether it will be injurious or detrimental to property and
improvements in the neighborhood or the general welfare of the city.
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Staff Report #10-011

In addition, the Zoning Ordinance provides additional findings for consideration with
regard to specific topics. The following findings are of relevance to this application:

   •   Alcohol sales
          o That a public convenience or necessity would be served by the issuance
             of license to sell alcohol.
   •   Outdoor seating
          o That the outdoor seating would maintain unimpeded pedestrian access on
             the public right of way.

Per Zoning Ordinance Section 16.82.430, the Planning Division mailed a preliminary
notice on July 30, 2009 to all property owners and building occupants within 300 feet
(supplemented with all other parcels along Morey Drive and all other Middle Avenue
parcels between the subject parcel and Blake Street). The notice included project
description letters and plans, and stated an intent to approve the permit on August 17,
2009, subject to comments received by the public. Staff received two letters from
neighboring residents, Sheila Rose of 620 College Avenue and Elizabeth Houck of 883
Middle Avenue, included as Attachment B41-B43. After considering the
correspondence, on August 21, 2009, the Community Development Director issued a
notice of approval with findings and conditions, available as Attachment B44-B45.

The approval notice was distributed to the Planning Commission and the two members
of the public who had submitted correspondence. On September 3, 2009, Elizabeth
Houck of 883 Middle Avenue formally appealed the action to the Planning Commission
(Attachment B46). The appellant is a member of the neighborhood Working Group,
although the appeal was not formally on behalf of the entire Working Group. The
appeal addressed issues of the overall site operation, and stated that more landscaping
should be added, in keeping with other local outdoor dining establishments. In addition,
the appeal requested the addition of bicycle, stroller, and wheelchair-friendly access
and bike parking, the addition of dining tables in the area between the retail building and
the grocery store, and replacement of the existing cigarette ash cans with smaller
versions. In response to the appeal, the applicant revised and clarified aspects of the

Planning Commission Review and Action

On October 19, 2009, the Planning Commission reviewed the appeal and the
applicant’s response. At this meeting, after considering public comment from the
applicant and the appellant, the Planning Commission continued the item with the
following direction, 5-0 with Commissioners O’Malley and Kadvany absent:

   •   Revise plans to clearly relay existing and proposed conditions in an equivalent
   •   Provide more detail (and possibly enhancements) for the railing at Rubio’s;
   •   Provide more information about the Transportation Demand Management (TDM)
       plan and its ongoing enforcement;
   •   Review delivery van parking and potentially relocate it (at least during the day) to
       the outskirts of the parking lot;
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Staff Report #10-011

   •   Specify that ashtrays will be regularly maintained;
   •   Provide the total number of bicycle parking spaces, both existing and proposed;
   •   Confirm that the arcade light fixtures and materials match what was required;
   •   Provide more information about the ability of employees to conduct on-site
       banking transactions; and
   •   Provide more information about security standards and program for the complex.

The staff report and minutes for this meeting are included as Attachments B23-B58 and
C, respectively. The staff report includes an itemized, detailed response to each of the
Commission’s points of direction. Several items are also discussed in more detail in the
Analysis section of this report.

On December 7, 2009, the Planning Commission reviewed the applicant’s response to
the Commission’s direction and questions. After considering public comment from the
applicant and the appellant, the Planning Commission unanimously approved the
administrative permit with additional conditions of approval relating to the quality of the
railing, planter boxes, and tables. The staff report and minutes from this meeting are
included as Attachments B and D, respectively.


On December 21, 2009, Elizabeth Houck filed an appeal of the Planning Commission’s
decision. The appeal letter is included as Attachment E and is discussed in more detail
in the following section.


The appeal letter states that the appeal is based on non-compliance with the intent of
the CDP. The CDP is included for reference as Attachment F. The appeal letter does
not provide specific aspects of the CDP that the appellant believes to not be in
compliance, although earlier statements by the appellant relayed concern with specific
CDP-related items. These were discussed during the Planning Commission review and
are included below for context. Staff believes that all elements of the CDP, including
development standards and conditions of approval, are in compliance.

Transportation Demand Management (TDM) Plan

As part of the original development, the applicant prepared a TDM plan that was
approved by City staff and C/CAG (City/Council Association of Governments). For the
City, this element is required by CDP condition T. The plan includes elements such as
bicycle racks and on-site ATM (automatic teller machine), as well as provision of a
commute assistance center in the employee lounge, offering a display of transit
information and a telephone that accesses transit information services via 511. These
elements are currently in compliance. The TDM plan also includes a provision for
transit voucher (Commuter Checks) subsidies, which are currently being established.
The applicant also states that a new commute programs coordinator from
will provide a regular transit orientation program to store employees.
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Staff Report #10-011

Delivery Vans

The current grocery store services include online sales and home delivery. The service
uses five delivery vans, which are currently parked in spaces directly adjacent to the
building, near the northernmost El Camino Real entrance. The vans are parked in this
location overnight, using electrical outlets adjacent to the building to recharge the vans’
cooling systems. The vans are loaded with orders in the morning and then leave for a
round of late morning/midday deliveries. The vans return in the early/mid-afternoon for
another round of loading and charging, and then depart for late afternoon and early
evening deliveries, returning for the evening around 8:00 p.m. Currently, the van drivers
place cones in the spaces upon departure, so that the spaces are reserved until their
return. The number of orders differs per day, meaning that not every van goes out on
each run, in which case it remains in the parking space.

The project plans approved as part of the CDP include a notation that these spaces are
permitted for overnight parking of home delivery vans, but they do not specify any
specific restrictions regarding daytime use. In response to Planning Commission
direction at the October 19, 2009 meeting, the applicant examined alternate locations
for the vans, but concluded that other options present operational challenges. In
particular, the current location allows loading to take place directly adjacent to the store,
while alternate locations would require the drivers to transport products across active
vehicle corridors. The nearby loading dock is used by larger trucks for delivery of larger
amounts of products, and does not offer a reasonable alternative for the van loading. In
addition, power lines would need to be installed by any new location for recharging the
vans’ cooling systems, which may result in conflicts with landscaping and/or other
existing utility equipment.

As a result, the applicant has proposed to retain the existing use of these spaces for
delivery van use, taking into account the availability of other parking spaces for
customers throughout the day. Staff is not aware of any ongoing parking-related issues
at this site. However, to improve the parking supply during the peak shopping times of
late morning/midday and late afternoon/early evening, when the vans are out, the
applicant has proposed to stop reserving the spaces with cones, and instead mark the
spaces with signage stating that the spaces are reserved for delivery van parking from
8:00 P.M. to 10:00 A.M. and 1:30 P.M. to 4:00 P.M. In addition to the signage, the
applicant has requested that these stalls be marked in another way, such as by different
colored striping or other markings on the pavement. The Planning Commission action
included a condition of approval for submittal of a detailed signage and pavement
marking plan, for the review and approval of the Planning and Transportation Divisions
(condition 4d).

The applicant has also noted that the delivery service results in taxable sales associated
with this store, contributing to City revenues. In addition, the delivery service allows
customers to take care of their shopping without individually driving to the store, and as
a result potentially reduces the overall parking demand, even if individual spaces are
occupied by the delivery vans at certain times. As noted earlier, the precise number of
delivery runs differs from day-to-day, but the applicant states that a van can serve up to
22 customers in a typical day.
Page 7 of 8
Staff Report #10-011

Arcade Materials and Fixtures

The building permit plans were reviewed and approved by staff for compliance with
Conditional Development Permit (CDP) condition Y, which required that the arcade
provide high-quality ceiling materials, preferably stained wood, and high-quality pendant
light fixtures. The applicant has submitted photos of the arcade to document the
existing compliance with this condition. Staff believes the intent of this condition has
been met.


Staff has not received any correspondence regarding the appeal.


The applicant paid a flat fee of $1,100 for the review of the application for an
administrative permit. The appellant paid two separate flat fees of $110 to file appeals
of the actions of the Community Development Director and the Planning Commission.
Staff time spent on the review of the appeals to the Planning Commission and City
Council is not recoverable beyond the amounts of the flat fees.


No changes to the General Plan or Zoning Ordinance are required for the project. Each
administrative permit request is considered individually. The City Council should
consider whether the required findings can be made for the proposal for outside seating
and on-site beer and wine sales.


The project is categorically exempt under Class 1 (Section 15301, “Existing Facilities”)
of the current California Environmental Quality Act (CEQA) Guidelines.

__________________________________            __________________________________
Thomas Rogers                                 Arlinda Heineck
Associate Planner                             Community Development Director
Report Author
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Staff Report #10-011


Public notification consisted of publishing a legal notice in the local newspaper and
notification by mail of owners and occupants within a 300-foot radius of the subject
property, as well as all other parcels along Morey Drive and all other Middle Avenue
parcels between the subject parcel and University Drive.


A. Draft Findings, Actions, and Conditions for Approval
B. Staff Report for the December 7, 2009 Planning Commission Meeting (includes as
   an Attachment the Staff Report for the October 19, 2009 Planning Commission
C. Approved Excerpt Minutes from the October 19, 2009 Planning Commission Meeting
D. Approved Excerpt Minutes from the December 7, 2009 Planning Commission
E. Letter of Appeal Submitted by Elizabeth Houck, 883 Middle Avenue, received
   December 12, 2009
F. Conditional Development Permit (CDP) for 525 and 625 El Camino Real, Approved
   November 8, 2005 and Amended March 13, 2007

Note: Attached are reduced versions of maps and diagrams submitted by the
applicants. The accuracy of the information in these drawings is the responsibility of the
applicants, and verification of the accuracy by City Staff is not always possible. The
original full-scale maps and drawings are available for public viewing at the Community
Development Department.

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