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APPEAL OF THE DIRECTOR’S DETERMINATION TO DISAPPROVE A TIME EXTENSION REQUEST FOR TEMPORARY ACTIVITY PERMIT P20-0824 FOR A FOOD TRUCK PARK USE AT 2107 WEST LANE (APN 117-090-11)
recommended action
RECOMMENDATION
Staff recommends that the Planning Commission adopt a resolution denying the appeal and uphold the Director’s Determination to disapprove a Time Extension request for Temporary Activity Permit P20-0824 for a food truck park use (also known as Stocklandia).
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Summary
The Planning Commission is asked to consider an appeal of the Director’s Determination disapproving a Time Extension request for Temporary Activity Permit P20-0824 for a food truck park use at 2107 West Lane, (also known as Stocklandia).
The Community Development Department (CDD) reviewed the project file, submitted application, Time Extension Determination, submitted Appeal, and consulted with applicable City representatives. Upon review of the aforementioned records as well as additional research and evaluation, the City maintains its position to deny the time extension. Therefore, staff recommends the Planning Commission deny the appeal and uphold the Director’s Determination.
DISCUSSION
Background
Temporary Activity Permit P20-0824 (Attachment A) was issued on October 20, 2020 to allow the temporary operation of a food truck park (i.e. six-month trial) at 2107 West Lane, also known as Stocklandia. The Temporary Activity Permit (TAP) expired on April 30, 2021. The project site has an active business license with the City for a Podcast Studio, which was obtained on September 9, 2020.
A Time Extension Request to extend the Temporary Activity Permit by six-months was submitted by the applicant on April 19, 2021.
On May 25, 2021, it was determined by the Director that the time extension request would not be granted based on noncompliant business operations during the initial six-month TAP, existing Code standards, and submitted documentation (Attachment B - TAP Extension Determination).
An appeal of the determination was received on June 3, 2021 (Attachment C - Submitted Appeal) contesting the findings that Staff made for supporting denial of the time extension.
Subject Property
The project site, generally referred to as 2107 West Lane, is situated on the west side of West Lane between East Ronald Street, Berkeley Avenue, and University Avenue. General Plan, Zoning Designations and Land Uses are as follows:
|
Property |
Zone |
General Plan |
Use |
|
Subject Site |
IL (Industrial, Limited) |
Commercial |
Podcast / Food Truck Park |
|
North |
IL (Industrial, Limited) |
Commercial |
Residential |
|
South |
IL (Industrial, Limited) |
Commercial |
Mini Storage |
|
East |
IL (Industrial, Limited) / RM (Residential, Medium Density) |
Commercial / Institutional |
Home Improvement Supply / Middle School |
|
West |
IL (Industrial, Limited) |
Commercial |
Residential |
The lot is rectangular in shape and has an area of approximately 17,000-square feet (0.39 acres) An existing building occupies the north end of the lot and is oriented east and south. This building houses the Stocklandia office, as well as a Podcast studio.
Per the submitted plans, the subject building is a single-story metal structure with a total building area of 1,800-square feet. The building floor plan is comprised of two offices, an entry area, broadcast studio, two (2) ADA restrooms, and a warehouse/rental space. The structure was previously occupied by a used car dealership/auto parts/auto service land use.
The Stockton Municipal Code (SMC) is a permissive regulation, which means if the Code is silent on a particular land use, then the use is not allowed. Instead of denying the "Food Truck Park" use outright as it is not a listed use in the Code, the Director made a determination to allow a Temporary Activity Permit which was issued on October 29, 2020. This approval was to provide an opportunity for the City to support small businesses, allow the use under a "test trial" period (which was for a period of six (6) months), and provide the City time to analyze and research the possibility of a code amendment to regulate this new business type.
Per SMC 16.164.010, Temporary Activity Permits are issued for temporary activities (e.g., events and uses) to ensure basic health, safety, and community welfare standards are met. A TAP is also designed to approve suitable temporary activities with the minimum necessary conditions or limitations consistent with the temporary nature of the activity. TAPs allow short-term activities that might not meet the normal development or use standards of the applicable zoning district but may otherwise be acceptable because of their temporary nature (such as Farmers’ Markets, or Christmas Tree Lots).
The Conditions of Approval for a TAP are meant to minimize/mitigate potential incompatibilities of a temporary activity and to limit its scope and duration to protect the public convenience, health, interest, safety, and general welfare. TAP P20-0824 was issued for Stocklandia to address their grand opening event as well as their day-to-day operations. A total of thirty-five (35) conditions of approval were issued with the TAP. These conditions ranged from adequate lighting, regulating vehicular access, provision of parking, prohibition of tables and chairs, procurement of necessary licensing, etc.
Present Situation
Time Extension Request was received on April 19, 2021. Stocklandia’s TAP expired on April 30, 2021. The applicant was permitted to continue operations in the interim pending the determination of said time extension request.
Per SMC section 16.96.030, the burden of proof is on the permittee to establish, with substantial evidence, why the permit should be extended. The Director may approve, approve with modifications, or disapprove the extension request. The same findings required for a TAP approval (SMC 16.164.050) were utilized in the time extension analysis. Per said findings and noncompliance with the TAP conditions of approval, the May 25, 2021 Director’s Determination did not grant an extension.
TAP noncompliance issues include: not obtaining necessary business licensing for commercial rental activities (renting spaces to food trucks), exceeding the maximum number of food wagons, overnight food truck parking/storage, and utilization of tables and chairs. The latter requirement is consistent with SMC section 5.72.100, where tables and chairs are not permitted in conjunction with motorized food wagons (i.e. food trucks). The original TAP made clear that compliance with the conditions of approval was mandatory. Consistent with SMC 16.164.070, said conditions were found to be reasonable and necessary to ensure that the approval would be in compliance with the findings required by Section 16.164.050. The applicant disagreed with the determination and filed an appeal on June 3, 2021, within the allowable 10-day appeal period.
Appeal Analysis
According to the appellant, the basis for the submitted appeal is as follows (rebuttals have been edited for clarity, full verbiage is available in Attachment C).
Finding 1: The proposed temporary activity would not be consistent with the general land uses, objectives, policies, and programs of the General Plan and any applicable specific plan, precise road plan, or master development plan. (SMC 16.164.050.A)
A podcast studio is allowed in the Industrial, Limited (IL) Zoning District per SMC 16.164.010.B. However, a Food Truck Park is not an identified land use in the Code. In this case, unless specific food wagon (truck) park regulations are adopted via Ordinance, the Food Truck Park Use is not a permitted use in the IL zoning district or in any zone, notwithstanding the failed six-month trial period under the TAP.
Appellant Rebuttal:
Per section 16.08 (F) Unlisted Uses of Land may be allowed under Director's determination. The appellant asserts that the City recognizes the potential of food truck parks as a viable revenue source and that regulations to manage such operations is needed.
Since the TAP is utilized throughout the City of Stockton for similar activities and imposes conditions to ensure the health and safety for those who participate in those events; the appellant believes that it would not be unreasonable for events like the Food Truck Parks to continue, subject to the conditions originally imposed for the current TAP.
Applicant states that they will ensure compliance with said conditions and would agree to monitoring such operations as set forth by the Planning Division or Planning Commission and that such conditions can be reviewed at the end of each subsequent TAP period, until such time as a Food Truck Park Ordinance can be instituted.
City Response
Given the applicant’s inability/refusal to comply with the TAP conditions of approval and that the food truck park use is not currently allowed, it is inconsistent with the Zoning Code, general land uses, objectives, policies, and programs of the General Plan and any applicable specific plan, precise road plan, or master development plan.
Finding 2: The establishment, maintenance, or operation of the proposed temporary activity at the location proposed and within the time period(s) identified may endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed activity. (SMC 16.164.050.B).
As proposed, Stocklandia’s Day-to-Day Operations including five (5) food wagons (trucks), one-way vehicle access that directs traffic to existing residential, and 17 off-site parking spaces, may endanger, jeopardize, or otherwise constitute a hazard due to the following:
• Insufficient parking
• Lack of two-way ingress/egress
• Impacts to neighboring properties (increased traffic, decreased street parking, noise, etc.)
• Site configuration and Accessibility concerns
Appellant Rebuttal:
The appellant is proposing an alternate parking location at 1240 Klinger Road. The parcel is approximately .13 acres and will provide perimeter parking with access from Klinger Road. They confirm that the parcel is approximately 430 feet from the primary site and is within the required distance as stated per SMC 16.64.080.b.4. The applicant asserts that the parking lot will meet standards as indicated per section 16.64.
City Response
16.64.080.B.4 states that, for nonresidential uses, permanent parking shall be located on the same parcel as the uses served, except that parking may be located on a parcel adjacent to, or within 500 feet of, the use served subject to a permanent covenant recorded with the County Recorder guaranteeing that the required parking would be maintained exclusively for the use or activity served. The agreement shall be approved by the Director and as to form by the City Attorney and a copy shall be filed with the Department. No covenant agreement has been submitted to the City.
Further, the site is undeveloped and would require Site Plan Review approval for the development of a parking lot for Stocklandia’s use. The development of the site is a change in use from undeveloped to parking facilities. Per SMC 16.152.030, the Director shall review projects for the appropriate and efficient layout of a site as an integral part of the development approval process. Each project that proposes to change an existing use to a different use of a structure, as defined in this Development Code, shall require that site plan review be completed and granted before the use of the structure is initiated. No applications or approvals have been received or granted for said location. In order to be utilized as a parking lot, the site is subject to the provisions of SMC Chapter 16.64, particularly 16.64.030 [General parking regulations], including but not limited to:
• Required parking and loading spaces shall be permanently available; off-site parking shall require a permanent covenant in compliance with Section 16.64.080(B)(4) (Location). The spaces shall be marked (except for single-family dwellings, duplexes, and triplexes) and maintained for parking or loading purposes for the use they are intended to serve.
• During business hours, parking and loading facilities required by this chapter shall be available to the general public without charge, except for colleges and universities. A fee for parking may only be charged for spaces that exceed the requirements of this chapter.
• Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping areas shall be kept free of dust, graffiti, and litter and shall be maintained to prevent the tracking of dirt, mud and/or gravel into the right-of-way. Striping, paving, walls, light standards, and all other facilities shall be permanently maintained and meet the requirements of Section 8.36.010 of the Municipal Code.
• Parking spaces, driveways, maneuvering aisles, and turnaround areas shall be paved with a permanent surface, consisting of concrete, asphalt or other similar material authorized by the City’s Standard Specifications. Compacted soil and/or gravel shall not be considered an acceptable surface.
Further, the appellant has not addressed their proposed use’s impact to the surrounding neighborhood. Since operations began, there have been ten (10) confirmed complaints regarding operations at 2107 West Lane, resulting in verbal warnings and citations from Code Enforcement. Not all complaints have been confirmed/verified by the City. Concerns received included the following:
• Non permitted food trucks and vendors
• Provision of tables
• No access to restrooms
• Alcohol sales
• Noise
• Rodents
• Lack of Trash/refuse containment
• Blocked driveways
• Exceeding maximum number of food trucks
Regarding accessibility, please refer to City response for the rebuttal of Finding #3.
Additional discussion regarding noncompliance can be found below.
Finding 3: The proposed site would not be adequate in terms of location, shape, and size to accommodate the temporary activity. (SMC 16.164.050.C)
Based upon observations regarding business operations during the initial six-month TAP, updated floor plan, and land uses on site, staff determined that the site cannot accommodate five (5) food wagons (trucks). To support all proposed uses of the site, twenty-two (22) parking spaces are required per the SMC. The site’s proposed one-way circulation is also insufficient for current business traffic demands. The site is appropriate for the podcast studio and office uses only.
Further, it is the applicant and business owner’s responsibility to comply with all applicable provisions of the Americans with Disabilities Act, Title III for the public accommodations associated with this proposed use. Current configuration does not provide all necessary accommodations.
Appellant Rebuttal:
The appellant asserts that the project site is currently configured with ADA Van Parking and accessibility requirements and the restrooms to be utilized by patrons are ADA approved Portable Restrooms. They state that the proposed location for business activities is located on a paved level surface as the existing structure is a one-story building, thus no stairs are needed or required by building code requirements.
City Response
Based on the submitted plans, the current configuration does not provide all necessary accommodations. If a time extension is approved, a condition of approval would be recommended that the site layout be submitted for ADA analysis by the Building Division.
Finding 4: The proposed site would not be adequately served by streets or highways having sufficient width and improvements to accommodate the kind and quantity of traffic that the temporary activity would reasonably generate. (SMC 16.164.050.D)
The site is a through lot and accessed via West Lane on the east side of the parcel, and Berkeley Avenue on the west side of the parcel. During the Day-to-Day Operation of Stocklandia, the site as currently configured, cannot accommodate the kind and quantity of traffic expected on-site as it is proposing one-way access from West Lane through to Berkeley Avenue. Berkeley Avenue is a residential street and not designed to accommodate the traffic generated by the food truck park use.
Appellant Rebuttal:
The appellant refers to previous response to Finding #2
City Response:
Please refer to City response for the rebuttal of Finding #2. Further, the proposed one-way configuration will result in traffic being directed into a residential neighborhood. The addition of off-site parking may assist with this. If a time extension is approved, a condition of approval would be recommended that the site access be two-way to further decrease impacts to the immediately adjacent residential neighborhood.
Finding 5: Adequate temporary parking to accommodate vehicular traffic to be generated by the temporary activity would not be available either on-site or at an alternate location(s) which is acceptable to the Director. (SMC 16.164.050.E)
For the Day-to-Day Operation of the Stocklandia podcast business and “food truck park,” parking is available on-site. The submitted site plan identifies seventeen (17) available parking stalls (stalls identified on any part of the City right-of-way cannot be considered off-street parking, nor can space no. 6 which extends into the required fire lane) and, per the information below, has a required parking amount of twenty-two (22) spaces; fifteen (15) spaces for the building and seven (7) spaces allocated for the food wagons (trucks).
In its analysis, staff has identified three (3) land uses on the site: Broadcast Studio, Business Office, and Take Out Restaurant; each have their own parking ratio. Per SMC chapter 16.64 (Off-Street Parking) the following parking ratios apply:
|
Land Use |
Parking Ratio |
Square Footage of Use on Site |
Required Number of Spaces |
|
Broadcasting Studios |
1 space for every 200 SF of indoor floor area |
132 |
1 |
|
Business/Professional (offices) |
1 space for every 200 SF of indoor floor area |
548 |
3 |
|
Restaurants - Fast Food/Take Out (food trucks) |
1 space for every 100 SF of indoor floor area |
680 (five trucks) |
7 |
|
|
|
1,116 (shop area) |
11 |
|
Total Required Parking Spaces |
22* |
*Of the 22 spaces, 1 must be ADA van accessible).
The shop area is being considered a part of Stocklandia’s overall food truck park facility and therefore included in the parking calculation above.
While food wagons (trucks) vary in size, each food truck is estimated to be approximately 16’ long by 8.5’ wide, or approximately 136 SF each. Per SMC chapter 16.64 (Off-Street Parking and Loading), fast food/take out shall be parked at 1 space for every 100 SF of gross floor area. Five (5) food wagons (trucks) have a combined estimated square footage of 680 SF and requires 6.8 parking stalls. Per SMC section 16.08.020 (Rules of Interpretation), staff is required to round the fractional/decimal results to the next highest whole number when the fraction/decimal is 0.5 or more, and to the next lowest whole number when the fraction is less than 0.5. Therefore, the required amount of parking for the food trucks is seven (7) spaces.
The parking ratio identifies a minimum of twenty-two (22) spaces, while the site plan identifies seventeen (17) spaces. Per the submitted site plan, there is insufficient parking to accommodate vehicular traffic generated by Stocklandia. At the time of Time Extension request, no off-site parking at an alternate location was proposed by the applicant (parking in the right of way does not constitute off-site parking).
Appellant Rebuttal:
The appellant refers to previous response to Finding #2. Further, the appellant has offered the provision of a temporary parking agreement with a property owner within 430' of the project site and will restrict vehicular access to the Food Trucks by its customers, thereby eliminating Findings No. 2 and 3.
The appellant asserts that the City's parking requirement and analysis is not clearly defined and that the warehouse/storage portion and business offices be considered accessory uses to the primary broadcast studio use. It is also stated that the number of required parking spaces be reduced due to the understanding that food served by food trucks is take-out.
City Response
Per SMC 16.64.020, every use, including a change or expansion of a use or structure, except as otherwise provided for in Chapter 16.228 (Nonconforming Uses, Structures, and Parcels), shall have appropriately maintained off-street parking and loading areas in compliance with the provisions of this chapter. A use shall not commence, and structures shall not be occupied until improvements required by this chapter are satisfactorily completed. Land uses within a building must all be counted in a parking calculation.
Potential reductions to parking must be in accordance with SMC 16.64.050.B (pertains to the reduction or waiver of parking requirements). These reductions/waivers can only be granted when certain conditions are met such as the provision of electric vehicle charging stations, motorcycle parking, etc. - none of which apply to 2107 West Lane.
Finding 6: The design, location, size, and operating characteristics of the proposed temporary activity would not be compatible with the existing and future land uses in the vicinity (SMC 16.164.050.F).
The proposed Day-to-Day Operations of the “food truck park” have occurred on a developed site that was previously utilized for a used car dealership/auto parts/auto service. The project site is in a predominantly industrial portion of the City where all parcels have an underlying zoning classification of Industrial, Limited (IL) and a General Plan designation of Commercial. The podcast and office uses are currently allowed on site; however a food truck park is not. A single incidental food wagon (truck) is permissible per SMC 16.80.020.B.4.a.i. Please note that more than one food wagon (truck) on the site could potentially become a destination use (as opposed to an accessory use) that may result in additional traffic at the site and potentially unsafe on-site traffic circulation.
Appellant Rebuttal:
The appellant refers to previous response to Finding #2. They further assert that Food Wagons are permissible per SMC 16.80.020.B.4.a.i. and that the number of trucks on private property is not defined. They contest that new code creation is required to outline said use. They emphasize that an extension of their original TAP and creation of new Municipal Code language will grant them the ability to have multiple food trucks at 2107 West Lane. The appellant has offered to make an adjustment to address access by vehicles and parking by said patrons to the food trucks.
City Response
Food truck parks are not permissible in any zoning district. Food trucks can, however, serve as an incidental/accessory use on private property per SMC 16.80.020.B.4.a.i; with a maximum of one (1) truck per parcel.
Community Development Director Code Interpretation No. 2020-01, effective October 29, 2020, provided clarification of the meaning of "incidental" as it relates to Motorized Food Wagons being located on private property as an accessory use to a primary land use, as described at SMC 16.80.020(8)(4)(a)(i).
When there is a development request to add Motorized Food Wagons on a private non-residential property in conjunction with an existing primary land use, Municipal Code Section 16.80.020(8)(4)(a)(i) shall be interpreted to allow one (1) single Motorized Food Wagon as an accessory use.
The basis for this determination is that a single Motorized Food Wagon can provide a food service convenience to accommodate employees at an existing business site and possibly neighboring businesses within walking distance. This would eliminate employees from having to drive out of the way to find food service uses elsewhere. Any more than one Food Wagon on a business site could potentially become a destination use that may draw customers from much further away and result in additional vehicle traffic at the business site, which may not have adequate accommodations for parking and safe on-site traffic circulation.
Finding 7: Approved measures for removal of the temporary activity and site restoration were required to ensure that no changes to the site would limit the range of possible future land uses otherwise allowed by this Development Code. (SMC 16.164.050.G)
Appellant Rebuttal:
The appellant has stated that no current or future proposed changes to the site for the use of the Broadcasting Studio or the Food Truck Park have been made that would limit the range of possible land uses otherwise allowed by the Municipal Code.
City Response
Given that the appellant has submitted an appeal, they are able to continue operations subject to TAP P20-0824 conditions of approval until all appeal remedies are exhausted. Per SMC section 16.164.080, should the time extension appeal be denied, the appellant shall be required to remove all evidence of the temporary activity within seven (7) days of the date of determination.
Finding 8: The proposed permit would be in compliance with the provisions of the California Environmental Quality Act (CEQA) and the City’s CEQA Guidelines. (SMC 16.164.050.H)
The project site concerns an existing private structure, involving negligible or no expansion of an existing or former use. Given these facts, the proposed temporary activities are Categorically Exempt pursuant to CEQA Guidelines §15301 (Existing Facilities).
Appellant Rebuttal:
The appellant does not contest this finding.
Noncompliance
The appellant also disagreed with the City’s determination of noncompliance with TAP Conditions of Approval as discussed previously and listed below. Consistent with SMC 16.164.070, said conditions were found to be reasonable and necessary to ensure that the approval would be in compliance with required findings.
1. Not obtaining necessary business licensing for commercial rental activities (renting spaces to food trucks)
Appellant Rebuttal:
The appellant asserts that a Commercial Business License was submitted in October 2020 and it was denied. However, states it was not approved by staff because there is not a Use Type for Food Truck Parks. On June 2, 2021, a second application was submitted again with all the required fees for a Commercial Business and were told by the Planning staff, that the application could not be processed as a Food Truck Park. The applicant has been prevented from acquiring a Commercial Business License at this point by the City Planning Department.
City Response
Staff was unable to locate any records pertaining to a submittal for a Commercial Business License in October 2020. Regarding the submittal on June 2, 2021, there had been a processing misunderstanding and the appellant was contacted that same day and directed to submit said application. The application is currently on hold pending the results of the Time Extension request.
2. Exceeding the maximum number of food wagons
A Notice of Violation was issued on April 3, 2021 identifying the following violations:
i. Having six (6) motorized food wagons where the TAP limits a maximum of five (5) motorized food wagons on the property at a time
ii. Motorized food wagons were not in their designated parking areas as identified in the TAP Site Plan
iii. Vendors in addition to the five (5) food wagons were present on-site
iv. Shade structures were being used in conjunction with motorized food wagons, in violation of SMC 5.72.100
Appellant Rebuttal:
Said notice was remediated and adhered to.
City Response
The City has confirmed that said violations have been corrected.
3. Utilization of tables and chairs
A Notice of Violation was issued on March 4, 2021 identifying the following violation:
i. Tables and chairs were being used in conjunction with the Motorized food wagons, in violation of 5.72.100.
Appellant Rebuttal:
Said notice was remediated and adhered to.
City Response
The City has confirmed that said violations have been corrected
4. Overnight Parking of Food Trucks
A report was received from San Joaquin County Environmental Health that a complaint had been filed regarding the following issues:
i. A food truck did not have its necessary environmental health permit
ii. a vendor was selling cannabis infused lemonade
iii. food trucks were parking overnight
The County addressed the environmental health permit issue and forwarded the report of cannabis infused lemonade to the Bureau of Cannabis Control. City Code Enforcement also issued a verbal warning based on TAP requirements.
Appellant Rebuttal:
The appellant holds that mobile food trucks are permitted to be stored overnight and that they meet California Health and Safety Code (HSC) section 114295(c) if they go to their respective commissary in the morning for cleaning, refilling etc.
City Response
HSC 114295(c) states that “Mobile food facilities shall be stored at or within a commissary or other location approved by the enforcement agency in order to have protection from unsanitary conditions. 2107 West Lane is not an approved Commissary nor has the City (i.e. enforcement agency) approved said location for overnight food truck storage. It is important to note that the Stockton Municipal Code (SMC) is a permissive regulation, meaning if the Code is silent on a particular land use, then the use is not allowed. Therefore, because overnight food truck storage is not expressly permitted in the Code, it is prohibited.
Conclusion
The evidentiary record and subsequent analysis fail to support a time extension for TAP P20-0824. As evidenced above, not all findings of fact as required by the Stockton Municipal Code (SMC) Section 16.164.050 for a Temporary Activity Permit can be made, and therefore, the time extension for said permit cannot be approved.
As a result of the information and analysis above, staff recommends the Planning Commission deny the appeal and uphold the Director’s Determination.
Public Comments
On July 12, 2021, at least ten (10) days prior to the Planning Commission hearing, public notice for this item was published in the Record and mailed notice was sent to all property owners within a 300-foot radius of the project site, in accordance with SMC Section 16.88.030. As of the date of this writing, staff has received one written comment from the public on this project outside of the public hearing process (Attachment D - Public Comment Received).
Environmental Clearance
This action is Categorically Exempt from CEQA pursuant to CEQA Guidelines §15301 (Existing Facilities) since it concerns an existing private structure, involving negligible or no expansion of an existing or former use.
Attachment A - Temporary Activity Permit P20-0824
Attachment B - TAP Extension Determination
Attachment C - Submitted Appeal
Attachment D - Public Comment Received