Agenda Item Wording:
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Appeal of Planning Commission Action - A Public Hearing to consider an appeal of the Planning Commission’s denial of Conditional Use Permit No. 2024-29, which was a request to amend the hours of operational for the Jack in the Box drive-thru facility to 24-hours located at 1145 South Lovers Lane, in the C-N (Neighborhood Commercial) zone (APN: 100-120-051).
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Deadline for Action: 9/16/2024
Submitting Department: Community Development
Contact Name and Phone Number:
Josh Dan, Senior Planner, josh.dan@visalia.city <mailto:josh.dan@visalia.city>, (559) 713-4003
Paul Bernal, Planning and Community Preservation Director, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>, (559) 713-4025
Department Recommendation:
Staff recommends that the City Council receive a staff presentation, hold a public hearing, and adopt Resolution No. 2024-52 denying the appeal and upholding the Planning Commission’s denial of Conditional Use Permit No. 2024-29. It is standard practice for staff to recommend the upholding of a Planning Commission action.
Summary:
The applicant is appealing the decision of the Planning Commission’s denial to amend the hours of operation for a Jack in the Box fast-food restaurant previously approved per Conditional Use Permit (CUP) No. 2021-22, located at 1145 South Lovers Lane. The CUP amendment request was to modify the operating hours from 5:00 a.m. to 12:00 a.m. (midnight), as originally conditioned by the Planning Commission, to 24-hours a day. The Planning Commission initially adopted the hours of operations after receiving public comment in 2021, in opposition to the applicant’s initial request to permit this fast-food restaurant to operate 24-hours a day.
Background Discussion:
Conditional Use Permit (CUP) No. 2021-22 was a request to permit the development of approximately 1.12-acres of C-N zoned property with a 1,315 square foot Jack in the Box fast-foot restaurant. This fast-food restaurant is designed with only a walk-up window and drive-thru lane; there is no indoor dining provided. Fast food restaurant uses, with a drive-thru lane, are considered a “permitted use” in the C-N zone subject to the drive-thru performance standards established in Section 17.32.162 of the Visalia Municipal Code (VMC). A Conditional Use Permit was warranted based on the drive-thru not complying with subsection B(1) of the above reference section, in which the drive-thru lane is within 250 feet of a residence and/or residentially zoned property.
During the public hearing for CUP No. 2021-22, the applicant clarified to the Planning Commission that the fast-food restaurant was seeking to operate 24-hours a day which was not consistent with the hours noted on the application form which listed operating hours from 6:00 A.M. to 12:00 A.M. (midnight). Staff stated during the presentation of the item that fast-food facilities were not limited to specific operating hours in the Municipal Code but would have to comply with the Noise Ordinance (VMC Chapter 8.36). Additionally, none of the other four Jack in the Box restaurants in Visalia operated with limited hours. Additional testimony was received from a member of the public who spoke and shared their concerns for the 24/7 operating hours, based on the projects proximity to abutting residences and Pinkham Elementary School which is approximately 1,321-feet to the west.
The Planning Commission, after further deliberation on the 24-hour operation request, concluded that it would be appropriate for the applicant to reconsider requesting 24/7 operational hours once more commercial development came to the site which may provide additional buffers to the nearby residential homes. The Planning Commission, understanding the concern, opted to include a condition limiting the hours of operation from 5:00 A.M. to 12:00 P.M. (midnight). This condition was included as Condition No. 10 of Resolution No. 2021-42. A copy of Resolution No. 2021-42 is attached to this staff report as Attachment 3.
Construction of the Jack in the Box restaurant was completed on September 21, 2022. During this time, the applicant had inquired with staff on multiple occasions on the process to amend the hours of operation condition. Through these discussions, staff encouraged the applicant to operate for at least a year and then consider an amendment to the approved entitlement.
Planning Commission Public Hearing:
On August 12, 2024, CUP No. 2024-29 was heard before the Planning Commission. This CUP amendment was seeking a request to expand the fast-food restaurants hours of operation to 24-hours a day. The applicant provided a narrative and letter to the Commission in Planning Commission in support of their request to modify the hours of operation for the Jack in the Box fast-food restaurant. Both exhibits by the applicant identified the project’s compliance with the municipal code, operational history at the site, and no public complaints received at the site. The applicant attributed their success of operating a business in compliance with all City codes due to the management structure in which the business is operated. Additionally, the applicant identified that “the need to operate 24/7 is directly tied to the increased minimum wage requirement by the State”.
Based on reviewing the sites operating history, staff supported the request of the applicant, on the basis that the project site and operator have operated in good standing over the past year without any issues reported to the Neighborhood Preservation / Code Enforcement Division. If the Planning Commission were to approve the request, the business would still be subject to compliance with the City’s Noise Ordinance. Further, staff detailed that if substantiated complaints were to be received, it would result in the site being declared a public nuisance, staff would seek to initiate the process of getting the business/site into compliance including initiating the CUP amendment process to modify hours of operation.
During the public comment period, the Planning Commission received verbal and written comments detailing concern with the request for extended hours of operation as it would have an adverse impact on neighboring sensitive land uses. During the Planning Commission’s deliberation, a majority of the Commissioners noted the request to operate 24-hours a day would pose incompatibility issues with the existing residential uses in close proximity. Commissioners also identified that other sites in the City operating 24-hours a day are not as closely located to sensitive land uses, having other commercial buffers between them and neighboring residences. Based on issues stated by the Planning Commission, the Commission denied the CUP amendment by a 5-0 vote. A copy of the Planning Commission staff report is attached to this report as Attachment 2.
Appeal
On August 21, 2024, staff received an appeal of the Planning Commission’s denial of Conditional Use Permit No. 2024-29. The appeal, filed by Patrice Roux, is included as Attachment 1. The reason for the appeal, as noted in the attached document is due the good operating order of the Jack in the Box sites within the City, the increase of fast-food minimum wage and cost to do business, justification that all other Jack in the Box sites operate with 24-hour services, and that e-mails sent to the Planning Commission from concerned residents were from residents who do not live near the site (see Attachment 1).
Analysis:
The Planning Commission’s discussion, which ultimately lead to their recommendation to deny the project, focused on the project’s inconsistency with the surrounding residential uses. Several of the Planning Commissioners stated that the proposed amended hours of operation to a 24-hour drive thru-use is not compatible with adjacent residential land uses because the project’s proximity to sensitive land uses, and requested intensification of operating hours, will have a direct impact to the neighboring residential uses by interfering with the enjoyment of properties in the existing neighborhoods that are adjacent or nearby the project site, and would therefore be materially injurious to properties or improvements in the vicinity. In addition, none of the conditions proposed would have the effect of eliminating the injurious effect of the project on the neighboring properties
Pursuant to Section 17.38.110, Subsection A of the Zoning Ordinance of the City of Visalia, the Planning Commission must make certain findings in order to grant a conditional use permit application, and if such findings cannot be made, Subsection C of Section 17.38.110 provides that the Planning Commission may deny an application for a conditional use permit. Based upon careful consideration of the staff report and all pertinent testimony during the public hearing, the Planning Commission denied Conditional Use Permit No. 2024-29 because it was determined that the proposed use is not consistent with the policies and intent of the General Plan and Zoning Ordinance. The request to amend the existing Jack in the Box operating hours to 24-hour is not compatible with the existing residential character of existing neighborhoods to the west, southwest, and east of the site and none of the conditions proposed will have the effect of eliminating the inconsistency within the surrounding area. It is within the purview of the Planning Commission to deny a Conditional Use Permit if the Commission feels that the project does not meet the required findings.
Correspondence:
On September 10, 2024, staff received correspondence regarding the appeal which is attached to the report at Attachment 4. The attached correspondence, which is a signed petition by 37 individuals who reside near the Jack in the Box location, oppose the appellants request to modify the Jack in the Box restaurant hours to 24-hours a day.
Fiscal Impact:
None.
Prior Council Action: None.
Other: None.
Committee/Commission Review and Action:
• On August 23, 2021, the Planning Commission approved Conditional Use Permit No. 2021-22, a request to build a 1,315 square foot Jack in the Box fast-food restaurant with a drive-thru lane on the northwest corner of East Tulare Avenue and South Lovers Lane by a 5-0 vote.
• On August 12, 2024, the Planning Commission denied, by a 5-0 vote, Conditional Use Permit No. 2024-29, a request by Mike Davis to amend Condition of Approval No. 10 of Conditional Use Permit No. 2021-22, limiting the hours of operations from 5:00 A.M. to 12:00 A.M. for a Jack in the Box fast food restaurant in the Neighborhood Commercial (C-N) zone. The project site is located at 1145 South Lovers Lane (APN: 100-120-051).
Alternatives:
The City Council may, in lieu of the recommended motion specified above, consider any of the following alternatives:
1. Overturn the decision of the Planning Commission and approve Conditional Use Permit No. 2024-29 with conditions and/or modifications as specified by the City Council; or
2. Deny the Appeal and send back to Planning Commission for additional consideration; or
3. Continue the matter to a future City Council hearing.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to deny the appeal and uphold the Planning Commission’s denial of Conditional Use Permit No. 2024-29.
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Environmental Assessment Status: If the City Council denies the appeal and upholds the Planning Commission decision, no action needs to be taken on an environmental document subject to Section 15270 of the California Environmental Quality Act; or if the City Council overturns the Planning Commission’s denial and approves Conditional Use Permit No. 2024-29, subject to conditions, a Categorical Exemption will be prepared consistent with the California Environmental Quality Act and City of Visalia Environmental Guidelines.
CEQA Review: No action needed if the project is denied subject to Section 15270 of the California Environmental Quality Act.
Attachments:
1. Resolution No. 2024-52 denying the appeal and upholding Planning Commission’s denial of Conditional Use Permit No. 2024-29
2. Attachment 1 - Appeal by Patrice Roux
3. Attachment 2 - Planning Commission Staff Report dated August 12, 2024
4. Attachment 3 - Resolution No. 2021-42
5. Attachment 4 - Petition to oppose the 24-hour request, received September 10, 2024
6. General Plan Land Use Map
7. Zoning Map
8. Aerial Map
9. Location Map