BACKGROUND
Pursuant to City Municipal Code (CMC) 17.14.030, cosmetic stores require a conditional use permit. A cosmetic store is defined as: A retail store as a primary use selling cosmetics, perfumes, skin-care products, toiletries, and personal grooming products. (CMC 17.68.050). On February 27, 2019, the applicant, Royal Bee, submitted a business license application that included the sale of cosmetics. Staff initially intended to require that the applicant submit a conditional use permit application, however, the applicant submitted materials indicating that cosmetics would be only a small percentage of the items sold, and as such, staff classified the business as a specialty theme store. According to the applicant’s description, the store is intended to be centered around bee and honey related products including: honey, soaps made of bee wax, bee wax candles, skin care products containing bee byproducts, and books containing a bee and honey theme (Attachment 3).
Royal Bee occupied the subject space on May 20, 2019. The Planning and Code Compliance Staff inspected the business on May 29, 2019 and documented the interior of the store via photograph (Attachment 3). Based on the inspection, it was estimated that approximately 36% of the store’s inventory at that time consisted of cosmetics and that it is the largest component of the inventory. The business license approval stated that no more than 20% of the inventory shall be related to cosmetics. The cosmetics were set-up on two make-up stands with mirrors, applicators, and paper towels. Additionally, employees of the business stand at the doorway to distribute cosmetic samples to the public.
Staff has determined that the business is operating primarily as a cosmetic store, which is inconsistent with the project description and business license conditions of approval. As the business operates primarily as a cosmetic store, the business owner was directed to apply for a conditional use permit. On August 14, 2019, the Planning Commission reviewed the Use Permit (UP 19-304) application for Royal Bee and denied it by a vote of 3-1, based on specific findings (see Attachment 2 – Findings for Denial).
STAFF ANALYSIS
Conditional Use Permits
Title 17.14 of the City’s Municipal Code regulates land use in the Commercial District. Certain uses are classified ‘permitted’ (aka ‘permitted by right’) and others are classified as requiring a ‘conditional use permit’. The review process and level of discretion by the City depends on the classification. The City is obligated to approve a permitted use through the business license process, so long as the business meets the zoning requirements and code definition of the use. The use is approved without a requirement to go before the Planning Commission and special conditions cannot be applied.
A permitted use is distinctively different from a conditional use. Pursuant to the City’s Municipal Code, conditional use permits are approved by the Planning Commission and the decision is discretionary. In order to approve a conditional use permit, certain findings must be made and the approval is made with conditions. Land uses that are classified as a conditional use typically have the potential to impact surrounding properties. Cosmetic stores are classified as a conditional use because of the potential for adverse impacts associated with peddling near the doorway and on the adjacent sidewalk.
Findings Required for Approval
It is a standard business practice for cosmetic stores to peddle merchandise from the doorway and encroach onto the adjacent sidewalk right-of-way to solicit business or hand out samples. The City currently has three other cosmetic stores that routinely conduct business in this manner and has received numerous complaints from residents, visitors and neighboring business owners regarding this activity. Since Royal Bee occupied the space on May 20, 2019, the City has observed and received complaints about them peddling from the doorway and encroaching onto the adjacent sidewalk (Attachment 5). The City has warned them about this activity, in particular, encroaching onto the sidewalk.
CMC 17.64.010 states that: “In its review of applications for use permits, the Planning Commission shall evaluate each proposed use in order to consider its impact on the City. No use permit shall be granted unless all of these general findings (see below) can be made.” Staff finds that the proposed cosmetic store use does not comply with Findings 3, 4, 5 and 7 as explained below.
1. That the proposed use will not be in conflict with the City’s General Plan.
2. That the proposed use will comply with all zoning standards applicable to the use and zoning district.
3. That granting the use permit will not set a precedent for the approval of similar uses whose incremental effect will be detrimental to the City, or will be in conflict with the General Plan.
Staff Response: The proposed cosmetic store, with its associated doorway peddling and sidewalk encroachment, sets a precedent for approval of similar uses, whose incremental effect will be detrimental to the City. For this reason, Finding #3 cannot be made.
4. That the proposed use will not make excessive demands on the provision of public services, including water supply, sewer capacity, energy supply, communication facilities, police protection, and fire protection.
Staff Response: The activity of peddling from the doorway and encroaching onto the sidewalk, which is a common business practice of cosmetic stores, requires continued enforcement and monitoring and makes excessive demands on the City’s Code Compliance Division. For this reason, Finding #4 cannot be made.
5. That the proposed use will not be injurious to public health, safety or welfare.
Staff Response: Over the past several years the City has received numerous complaints from the public about the cosmetic stores peddling from the doorway and sidewalk area. This activity disrupts pedestrian flow and is harmful to public welfare. For this reason, Finding #5 cannot be made.
6. That the proposed use will be compatible with surrounding land uses and will not conflict with the purpose established for the district within which it will be located.
7. That the proposed use will not generate adverse impacts affecting health, safety, or welfare of neighboring properties or uses.
Staff Response: Over the past several years the City has received numerous complaints from business owners adjacent to cosmetic stores, about the adverse impacts of peddling from the doorway and sidewalk area to their businesses. This activity has an adverse impact on the welfare of neighboring properties and business uses. For this reason, Finding #7 cannot be made.
Business License Revocation
If the City Council chooses to deny the Appeal and associated Use Permit (UP 19-304) application, then the applicant is no longer permitted to operate from the subject commercial space if they intend to sell cosmetics. The next step in the process would be to initiate a revocation of the business license in accordance with CMC 5.12.040 and 5.12.050 (Attachment 6).
Alternatives
As an alternative to denying the application, the City Council could direct staff to return with findings and conditions for approval. The business could be conditioned with a requirement that no soliciting/sales activity occur within a certain number of feet from the doorway. The City can revoke the Use Permit if the applicant does not abide by the conditions of approval.