Eskimo Hut vote postponed

An Eskimo Hut franchisee will have to wait a little longer before finding out if he can open his business at Aquarena Plaza.

At a special meeting Wednesday night, the San Marcos City Council decided to postpone a decision on whether to grant Eskimo Hut a conditional use permit (CUP) to sell alcohol to go. The Planning and Zoning Commission had voted to deny franchisee Nelson Riley the CUP, citing concerns about customers consuming to-go beverages in vehicles and headlights from the drive-thru shining into two residences on Zunker Street.

The property owner, Vance Elliott — not the business owner — filed an appeal of the P&Z decision. Shannon Mattingly, chief planner for the city, explained Wednesday night that the special meeting was needed because of “the timeframe of the appeal and the meeting dates.”

City Attorney Michael Cosentino said that although the business owner is the correct party to apply for the CUP, it is not improper for the property owner to file an appeal of the P&Z decision.

“The applicant or any person within the notification area is allowed to appeal,” he explained. 

“I think that it wasn’t designed for this,” Mayor Jane Hughson responded, “but we can address that at another time.”

David Ross represented Elliott at the public hearing and council meeting. Elliott had to travel out of state, Ross explained. He then stated the case against the P&Z decision.

“The denial of the permit was an abuse of discretion,” he said, “and the Planning and Zoning Commission did not follow the required procedures to arrive at their denial.”

Ross argued that the sale of beer and wine is compatible with the area where Eskimo Hut would be located; Mamacitas restaurant is located nearby, as is a liquor store. 

“It seems that the concerns that were raised by staff … focused mainly on the actual TABC-permitted process for the sale of the product,” he said.

Ross also said that vehicle lights from any vehicle using an adjacent exit from Aquarena Plaza would shine into the residences on Zunker Street, as would other vehicle lights.

“Those concerns would be present for any use of the property,” he said.

Mattingly’s presentation to council about the CUP included a map of Aquarena Plaza and the surrounding area. She noted that currently there is no window cut into the building for a drive-thru.

“There was not actually a drive-thru identified on the site plan in 2009,” she said. “... However, in community commercial, drive-thru restaurants or drive-thru businesses would be allowed.”

Mattingly described the container that Eskimo Hut typically uses to serve its daiquiri-style drinks: a cup with a sealed plastic bag over it. The state has approved that method of serving alcoholic beverages. However, San Marcos Police Chief Chase Stapp expressed concerns about people opening the drinks and consuming them while in a vehicle that is in operation.

“I generally look at these from a public safety standpoint, not from a commerce standpoint or a planning standpoint,” Stapp said of CUP requests. “... My intent wasn’t to cast a vote for or against this business model or even this location.”

However, Stapp said that drive-thru alcohol sales encourage open containers in vehicles.

“I don’t have any empirical data to support that,” he said. “It’s just common sense.”

Council member Saul Gonzales expressed concerns about the temptation to drink the beverages in a vehicle while it’s in operation.

“I’m all for helping small businesses,” he said, “but I’m concerned about what our chief mentioned.”

Council member Ed Mihalkanin made a motion to approve the CUP, with the condition that Eskimo Hut not use foam-based containers. Council member Melissa Derrick proposed an amendment that would require beverages prepared on premises at Eskimo Hut to be served in insulated, reusable cups with a plastic cup sealer. The amendment passed 4-2, with Gonzales and Mark Rockeymoore voting against it and Joca Marquez absent. 

Because P&Z denied the CUP, the main motion to approve it required a “super majority” consisting of six votes from council —- votes it failed to garner, with Rockeymoore and Gonzales voting no. Cosentino mentioned that the council could vote to postpone a decision until the business owner could be present to answer questions and until the full council is present. The motion to postpone passed 5-1 with Gonzales voting no. 

City staff said there have been two previous CUP appeals: one for Wonder World in 2017, and one for Gumby’s. A CUP hearing for Olive Garden was postponed at a P&Z meeting in 2018 but was approved at the next meeting without an appeal.