§ 6.84.030. Findings.

A.

Whenever a request for a determination in connection with the issuance of a license for the off-sale of alcoholic beverages by the California department of alcoholic beverage control is submitted to the city as allowed under California Business and Professions Code Section 23958.4, as the same may be amended from time to time, the determination request shall be processed utilizing the process provisions of a conditional use permit contained in Chapter 20.100 of Title 20 of this Code.

B.

Subject to the provisions of this section, the planning commission shall hold a public hearing, review an application for a determination, and may issue a determination of public convenience or necessity in connection with an application for a license from the California department of alcoholic beverage control for the off-premises sale of alcoholic beverages only after making all of the following findings:

1.

The proposed use is not located within a strong neighborhoods initiative or neighborhood revitalization area or other area designated by the city for targeted neighborhood enhancement services or programs, or located within an area in which the chief of police has determined based upon quantifiable information that the proposed use: (a) would be detrimental to the public health, safety, or welfare of persons located in the area; or (b) would increase the severity of existing law enforcement or public nuisance problems in the area; and

2.

The proposed use would not lead to the grouping of more than four off-premises sale of alcoholic beverage uses within a one thousand-foot radius from the exterior of the building containing the proposed use; and

3.

The proposed use would not be located within five hundred feet of a school, day care center, public park, social services agency, or residential care or service facility, or within one hundred fifty feet of a residence; and

4.

Alcoholic beverage sales would not represent a majority of the proposed use; and

5.

At least one of the following additional findings:

a.

The census tract in which the proposed outlet for the off-premises sale of alcoholic beverages is located is unusually configured and the proposed outlet would act as a convenience to an underserved portion of the community without presenting a significant adverse impact on public health or safety; or

b.

The proposed outlet for the off-premises sale of alcoholic beverages would enhance or facilitate the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety; or

c.

The census tract in which the proposed outlet is located has a low population density in relation to other census tracts in the city, and the proposed outlet would not contribute to an over- concentration in the absolute numbers of outlets for the off-premises sale of alcoholic beverages in the area; or

d.

The proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience.

C.

In the event the planning commission determines that the planning commission is able to make all of the findings set forth in Subsections B.1. through B.4. above, the planning commission shall be the decision-making body for that request for a determination for the proposed use and shall proceed to consider the findings required under Subsection B.5. above. The planning commission's decision on the determination shall be appealable to the city council. In the event the planning commission determines that it cannot make one or more of the required findings set forth in Subsections B.1. through B.4. above, the planning commission shall make a recommendation to the city council as to whether the city council should make a determination for the proposed use, taking into consideration the findings that can be made and the provisions of Subsection E. below, and the city council shall be the initial decision-making body for that request for a determination.

D.

In the event the planning commission's decision on a determination is appealed to the city council or the planning commission determines that it cannot make one or more of the findings set forth in Subsections B.1. through B.4. above, the city council shall hold a public hearing on the request for the determination pursuant to the procedures set forth in Section 20.100.280 of Title 20 of the San José Municipal Code. The city council may issue the determination if the council determines that the required findings as set forth in Subsection B. above can be made.

E.

Notwithstanding the foregoing provisions and requirements contained in Subsection D. above, the city council may issue a determination in connection with an application for a license from the California department of alcoholic beverage control for the off-premises sale of alcoholic beverages where the city council does all of the following: (a) makes a determination that not all of the required findings set forth in Subsection B. can be made; and (b) identifies and finds that a significant and overriding public benefit or benefits will be provided by the proposed use.

F.

Nothing contained in this chapter shall be deemed or construed as requiring the planning commission or city council to issue a determination under the provisions of this chapter. Under no circumstances shall a requestor for a determination under this chapter have a right to such determination, and nothing contained in this chapter shall be deemed or construed to confer upon any requestor a right to have a determination made for any particular site.

(Ords. 27654, 27626, 29046.)