San Marcos City Council Votes To Postpone Eskimo Hut CUP Appeal

On November 13, 2018, the San Marcos Planning and Zoning denied a conditional use permit for the sale of beer and wine for a proposed Eskimo Hut located at 1504 Aquarena Springs Drive Ste. 11.

Staff Reports

During last night’s meeting, the San Marcos City Council held a public hearing for an appeal filed by Aquarena Plaza LLC on behalf of the owner of Eskimo Hut.

On November 13, 2018, the San Marcos Planning and Zoning Commission denied a conditional use permit for the sale of beer and wine for a proposed Eskimo Hut located at 1504 Aquarena Springs Drive Ste. 11.

The original applicant was requesting a CUP to sell alcohol “to-go” to walk up and drive-thru customers. The approved method of sales of alcoholic beverages “to-go” by the Texas Alcoholic Beverage Commission requires beverages to be sealed in plastic bags.

During the public hearing, a representative of the property owner where the business would be located spoke in favor of the CUP.

David Ross, Aquarena Plaza LLC representative, said, “The denial of the permit was an abuse of discretion, and the planning and zoning commission did not follow the required procedures to arrive at their denial.”

Ross said that the sale of beer and wine was compatible with the existing uses of land in the neighboring area, which includes a restaurant and a liquor store.

“It seems that the concerns raised mostly by staff and the planning and zoning commission focused mainly on the actual permitted TABC process for the sale of the product,” Ross continued. “There also were concerns of the actual use of the drive-thru and of what people would do when they pulled out of that drive-thru. That, of course, ignores that those concerns would be present for any concerns of the property, not just the use that required the conditional use permit application.”

According to Michael Cosentino, the city attorney, an appeal can be filed by a business owner or “any owner of property in the area of personal notice.”

During the discussion, Chief Chase Stapp of the San Marcos Police Department shared his concerns with city council regarding the CUP.

Stapp said it is standard procedure for Planning and Zoning to request his opinion on all CUP requests, and that his opinion is formed from the public safety side of the issue.

“My intent wasn’t to cast a vote for or against this business model or even this location,” Chief Stapp said. “I believe that a to-go drive-thru alcohol service business encourages folks to drive up, buy the alcohol and consume it as they drive or at least as a passenger, which is also against the law in Texas.”

Chief Stapp said he did not have any empirical data to support his opinion; it was solely based on what he felt was “common sense.”

Councilmember Lisa Prewitt said she did agree with the police chief’s views; however, she felt as the state allowed for business models like this, it was something the city should look at the state legislative level.

Councilmember Saul Gonzales expressed concerns about the number of bars already in San Marcos and the city’s growing reputation as a “party city.”

Gonzales asked Chief Stapp if he thought the city had a “quite a few of DWIs” with the younger generation in San Marcos.

Chief Stapp said that Driving While Intoxicated was an issue that San Marcos Police officers “combat” all the time, and that it was a big issue for a city of “our store.”

While not aware of the full menu, Assistant City Manager Steve Parker said he was aware that Eskimo huts typically sell six, twelve and eighteen packs of beer as well as wine coolers. 

Councilmember Melissa Derrick made an amendment to the original motion to “require beverages prepared on premise to be served in insulated, reusable cups with a plastic cup sealer.”

According to Chief Stapp, the amendment to the CUP conditions would be difficult for law enforcement to enforce as it would require an officer to observe a cup from Eskimo Hut that did not meet the conditions.

However, officers would be able to issue citations for anyone who opened the sealed bag around the drinks for an open alcohol container.

Councilmember Prewitt said the ultimate goal of the amendment was to reduce the potential trash that could end up in the river with the insulated reusable cups.

The amendment passed 4-2 with councilmembers Mark Rockeymoore and Gonzales voting no and Councilmember Joca Marquez absent.

Cosentino reminded council that to overturn P&Z’s decision and grant the CUP would require a vote of six on the main motion.  

The main motion to overturn P&Z’s decision with staff recommendations failed 4-2 with council members Rockeymoore and Gonzales voting no.

Councilmember Derrick made a motion to postpone the issue until the applicant could attend, and a full council was present.  

The motion to postpone passed 5-1 with Councilmember Gonzales voting no. The council may see the item return at the January 15 or 29 meeting.