C. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( New Construction or Conversions of Small Structures )

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1 Z O N I N G A D J U S T M E N T S B O A R D S t a f f R e p o r t FOR BOARD ACTION JULY 14, Shattuck Avenue UP # to add incidental service of beer, wine and distilled spirits at a full service restaurant that has incidental live entertainment and outdoor seating I. Application Basics A. Land Use Designations: General Plan: Downtown Zoning: C-2, Central Commercial District Special: Downtown Arts District B. Zoning Permits Required: Use Permits to allow the incidental sale of alcohol in a full service restaurant, under BMC Sections 23E & 23E C. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( New Construction or Conversions of Small Structures ) D. Parties Involved: Applicant/Owner: John Paluska / Es Verdad, LLC 404 W.Blithedale Ave. Mill Valley, CA Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 July 14, 2011 Page 2 of 10 Figure 1: Vicinity Map Project Location Downtown Berkeley Bart Station

3 July 14, 2011 Page 3 of 10 Figure 3: Interior Floor Plans (basement and 1 st Floor)

4 July 14, 2011 Page 4 of 10 Figure 4: Outdoor Dining Area Figure 4: Arts District Overlay

5 July 14, 2011 Page 5 of 10 Table 1: Land Use Information Location Existing Use Zoning District General Plan Designation Subject Property Shattuck Avenue Surrounding Properties North South East Restaurant Restaurant Shattuck Avenue C-2/ADO Central Commercial/ Arts District Overlay West Mixed Use Building Table 2: Special Characteristics Characteristic Applies to Project? Explanation Alcohol Sales/Service Yes The operator has applied for a Type 47 ABC License which authorizes the sale of beer, wine and distilled spirits for consumption on-site at a bona fide restaurant. Arts Overlay District Yes The subject site is included in the Downtown Area Plan s Arts Overlay District. Table 3: Project Chronology Date Action March 22, 2011 April 21, 2011 June 30, 2011 July 14, 2011 June 20, 2011 Application submitted Application deemed complete Public hearing notices mailed/posted ZAB hearing PSA deadline Table 4: Development Standards Standard BMC Sections 23E Shattuck Avenue Tenant Space Hours of Operation Existing Proposed Permitted/ 9,839 sq. ft. (Basement, Main Floor, Mezzanine, Patio) 8,559 sq. ft. (Basement, Main Floor, Patio) Required Patio Service 7AM Midnight 7AM - Midnight 7AM 2AM Interior Dining N/A 7AM 1AM 7AM 1AM 7AM 2AM Seating (Interior) 150 No Change N/A Seating (Patio) 50 No Change N/A Parking Automobile 0 0 N/A

6 July 14, 2011 Page 6 of 10 II. Project Setting A. Neighborhood/Area Description: The immediate vicinity consists of restaurants, theater and performance venues as well as other commercial uses that generate a high volume of foot traffic. The site is included in the Downtown Arts Overlay District (see Figure 4) the purpose of which is to create a core of cultural activities and supportive retail and commercial uses which would generate more pedestrian vitality in the downtown, promote Berkeley s regional leadership in the arts, and encourage broader economic revitalization of the area. To the north of the site are dwellings on the second floor of two adjacent buildings. B. Site Conditions: The subject site is an approximately 5,550 sq. ft. parcel with a one-story commercial building (with a full basement and mezzanine) that once contained two separate tenant spaces, that are planned to be merged into one tenant space for a full service restaurant (recently approved by the Zoning Officer with an Administrative Use Permit). There is no off-street parking available. III. Project Description The project is located in downtown Berkeley, on the west side of Shattuck Avenue near University Avenue. The site is a block away from the Downtown Bart station, and within walking distance to the Berkeley Repertory Theater, Freight and Salvage, the Aurora Theater, and other newly established cultural and entertainment uses. The adjacent buildings along Shattuck Avenue contain retail and food service uses. A rear patio abuts the walls of the adjacent mixed use buildings located to the east and north. Neither of the walls have any windows for the residences. The north side of the patio opens onto a small walkway that serves the ground floor commercial businesses on University Avenue. The applicant has obtained Administrative Use Permit approval for a full service Mexican restaurant with an outdoor dining area and incidental live entertainment. The applicant proposes to add incidental alcohol service of distilled spirits to the restaurant. The restaurant will be part of a growing, diverse mix of cafes and restaurants in the downtown area. IV. Community Discussion A. Neighbor/Community Concerns: The applicant posted a proposed development sign at the site prior to the application submittal. The public hearing notice was posted and hearing notices were sent via US Postal Service on June 30, No letters of support or opposition had been received at the time of the writing of this staff report. B. Committee Review: No exterior modifications are proposed as part of this permit. Any façade or sign changes would require review by the Design Review Commission.

7 July 14, 2011 Page 7 of 10 V. Issues and Analysis A. Beer, wine and distilled spirits: The applicant has applied for a Type 47 license from the State Department of Alcoholic Beverage Control (ABC) that authorizes the sale of beer, wine and distilled spirits for consumption at a bona fide restaurant. The proposed use permit brings the total to approximately seven (7) sit-down restaurants with licenses for bar and alcohol sales within a 1,000-foot radius of the project location. BMC Chapter 23E B.1 requires that the applicant provide a list of all establishments within a 1,000-foot radius which are in the same category of alcoholic beverage sales or service (See Map-Figure 5). In order to approve the application, the Board must make all of the findings of Public Convenience or Necessity. The required findings are evaluated as follows: BMC 23E B.2.a requires that the proposed establishment of full alcohol service will help to promote the City s economic health, contribute to General Plan or Area Plan policies, or further the district purposes. Staff Response: The addition of the alcohol service incidental to the full service restaurant will provide an alternative type of cuisine in the area and aid in the establishment of downtown Berkeley as a cultural center. While there are other restaurants in the 1,000 foot buffer area offer a similar category of alcohol service, this will be the first Mexican restaurant. According to the applicant s statement, the restaurant will also serve crafted cocktails, another unique service, especially for a Mexican restaurant. BMC 23E B.2.b requires that the economic benefits associated with the establishment could not be reasonably achieved without the proposed alcohol sales. Staff Response: According to the applicant, an essential element of the business concept is a well-curated selection of small-batch tequilas, mezcals, and other quality spirits. This business concept will allow the restaurant to remain competitive with other restaurants in the area that have a focus on specialty alcohols. BMC 23E B.2.c requires that the applicant has not operated a licensed establishment that has been the subject of verified complaints or violations regarding alcohol, public safety or nuisance statutes or regulations, however, the Board may grant a Use Permit when there is record of only one complaint or violation against an applicant for on-sale restaurant service. In such cases, the Board shall take into consideration the circumstances of the complaint or violation and the concern of local neighborhood groups. Staff Response: The applicant has not operated a licensed establishment which has been the subject of verified complaints or violations regarding alcohol, public safety or nuisance statues or regulations, as demonstrated by their experience in other

8 July 14, 2011 Page 8 of 10 places. They do not have an established comparable operation in the City of Berkeley at present. BMC 23E B.2.d requires that if the proposed establishment is located within one thousand (1,000) feet of any public park or Berkeley Unified School District (BUSD) school, the Board shall take into consideration the effect of the proposed establishment upon such sensitive public uses. Staff Response: Martin Luther King Jr. Civic Center Park is just within the 1,000 foot buffer zone, approximately 945 feet to the southwest of the subject site, however, the proposed addition of alcohol service at a bona fide eating establishment will not have an adverse effect because the expansion is modest and is at an establishment with no verified complaints relating to alcohol service. BMC 23E B.2.e requires that the Police Department report that the proposed establishment would not be expected to add to crime in the area. Staff Response: As of the writing of this report, the Police Department s comments were not available. Staff expects that they will be available next week and the ZAB will be provided an update at the meeting. Figure 5: 1,000-Foot Alcohol Radius Map Bistro Liaison Site Spats Au Coquelet Cafe Revival Spiritivo Restaurant Anna s Jazz Cafe

9 July 14, 2011 Page 9 of 10 B. Outdoor Activity: The Zoning Officer has approved an Administrative Use Permit for outdoor seating and incidental live entertainment. The current floor plan indicates that the outdoor seating area will have a separate bar with counter seating. Staff Response: The restaurant will have seating for 200 (150 indoor and 50 on patio). The second bar will provide service for the outdoor dining area and allow the interior bar to focus on the main dining area. This division of labor will assist in making the dining experience one that is timely in both outdoor and indoor areas. Additionally, the approved outdoor seating and incidental live entertainment is subject to the approved AUP s conditions that regulate impacts to the surrounding uses. ABC regulates the manner in which a bar may be operated when part of a bona fide eating establishment, including limited bar service if not part of a meal. C. General and Area Plan Consistency: The 2002 General Plan contains several policies applicable to the project, including the following: 1. Policy LU-7 Neighborhood Quality of Life, Action A: Require that new development be consistent with zoning standards and compatible with the scale, historic character, and surrounding uses in the area. Staff Analysis: The operation of the restaurant with incidental live entertainment and incidental beer, wine, and distilled spirits service, will be subject to conditions of approval regarding potential noise, littering and loitering and good management practices to ensure minimal impacts on any nearby downtown residential uses. 2. Policy LU-16 Downtown Plan Implement the Downtown Plan and take actions to achieve the three goals of the Plan: Express and enhance Berkeley's unique social and cultural character in the Downtown. Create an appealing and safe Downtown environment, with a comfortable pedestrian orientation. Diversify, revitalize, and promote the Downtown economy. 3. Policy ED-10 The Downtown Economy Continue to diversify, revitalize and promote the Downtown as the civic, cultural, commercial, and entertainment center of Berkeley: Staff Analysis: The addition of incidental beer, wine, and distilled spirits to an approved Mexican restaurant with incidental live entertainment and outdoor seating will provide a service not commonly available in the downtown. According to the applicant s statement, the restaurant will specialize in small-batch tequilas and mezcals, and will provide a unique dining experience that will enhance and complement the existing commercial uses in the Arts District Overlay.

10 July 14, 2011 Page 10 of 10 VI. Recommendation Because of the project s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, Staff recommends that the Zoning Adjustments Board: A. APPROVE Use Permit # pursuant to Section 23B and subject to the attached Findings and Conditions (see Attachment 1). Attachments: 1. Findings and Conditions 2. Project Plans & Applicant Statement, received March 22, Notice of Public Hearing 4. Photos 5. Correspondence Staff Planner: Claudine Asbagh, casbagh@ci.berkeley.ca.us, (510)