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APPEAL OF THE PLANNING COMMISSION’S APPROVAL OF A USE PERMIT, SPECIFICALLY CONDITION OF APPROVAL NO. 8, FOR AN ABC LICENSE UPGRADE AT AN EXISTING CONVENIENCE STORE LOCATED AT 2910 WEST EIGHT MILE ROAD (P23-0306) (APN 070-670-30)
recommended action
RECOMMENDATION
Staff recommends that the City Council adopt a resolution upholding the Planning Commission’s original decision with all conditions of approval incorporated.
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Summary
The applicant, Sandy Mann, filed a planning application for a new Use Permit to upgrade their use from Type 20 (off-sale beer and wine) to Type 21 (off-sale general alcohol) in an existing convenience store located at 2910 West Eight Mile Road, herein known as the “Project.” (Attachment A - Location Map). The Project site has a General Plan designation of Commercial (Attachment B - General Plan Map) and a Zoning designation of Commercial, General (CG) (Attachment C - Zoning Map).
Currently under construction, the original Commission Use Permit was approved to develop a 3,700 SF convenience store with gasoline stations, car wash, and associated site improvements to develop the site on October 26, 2017 (Attachment D - Approved Use Permit P17-0667) for the off-sale beer and wine, a Finding of Public Convenience was not required at that time.
Staff determined this Project is in compliance with the Stockton Municipal Code (SMC) and recommended the Planning Commission approve the requested Use Permit for the upgrade from a Type 20 to a Type 21 ABC license for off-sale of general alcohol. On August 8, 2024, the Planning Commission held a public hearing and approved the Project subject to nineteen (19) conditions of use.
The Applicant’s appeal is focused solely on CUP Condition No. 8, which states that “No single sale of beer or malt liquor in containers under 40 ounces or less shall be permitted in the convenience store,” and requests that the City Council modify the Project approval so that this condition does not apply.
Staff recommends that the City Council uphold (affirm) the Planning Commission’s approval, with all conditions, as Condition No. 8 is a carry-over from the project’s original approval, was not contested nor objected to during initial approval in 2017,, no objections were received regarding said Condition during the 2024 Planning Commission action, and a lack of relationship exists between the new UP (alcohol license upgrade) and the pre-existing condition of approval.
By the requirements of SMC 16.100.040(G), it is the City Council’s purview to discuss the matter and determine approval or denial of the Applicant’s appeal request. The SMC requires four (4) concurring votes of the Council to overrule or modify a decision of the Planning Commission.
DISCUSSION
Background
The applicant, Sandy Mann, has applied for a Commission Use Permit to upgrade an existing Type 20 ABC license which enables the off-sale of beer and wine, to a Type 21 license which enables the off-sale of beer, wine, and distilled spirits (i.e. general alcohol).
The original Use Permit, approved by the Planning Commission on October 26, 2017 (P17-0667), entitled a convenience store with off-sale of beer and wine that was 3,700 SF in size with eight (8) gasoline pumps and a car wash facility. This prior approval enabled the applicant to obtain a Type 20 license from ABC. The applicant has complied with all original conditions of approval without incident.
In order for the applicant to upgrade their ABC license from a Type 20 to a Type 21, Stockton Municipal Code (SMC) Section 16.80.040(D)(2)(c) requires Planning Commission approval of a new Use Permit.
On August 8, 2024, the Planning Commission held a public hearing to consider the project application. The Planning Commission opened the public hearing and received staff and applicant presentations and then discussed the project. Staff indicated that the project satisfied all location requirements, no location waivers were required, and the project satisfied all findings for approval. The Commission approved the Project by a unanimous vote of 6-0 (Commissioner Thompson absent).
On August 12, 2024, within the 10-day appeal period, the Applicant submitted an appeal request per SMC Section 16.100.040 (Filing and processing of appeals), included as Attachment E. The Applicant is not appealing the Project’s approval; instead, the appeal is of UP Condition No. 8: “No single sale of beer or malt liquor in containers under 40 ounces or less shall be permitted in the convenience store.”
STAFF ANALYSIS
As shown in the Planning Commission legislative text and resolution dated August 8, 2024, included as Attachment F, the Project as designed and conditioned meets the approval findings for consistency with SMC Section 16.80.040 (Location Restrictions) and 16.168.050 (Use Permit General Findings, Problem Use Findings, and Alcoholic Beverage Findings). City staff also determined that the Project would be consistent with the Stockton General Plan, the Stockton Municipal Code (SMC).
Stockton Municipal Code (SMC) Section 16.80.040(D)(2)(c) requires a new Use Permit for ABC license upgrades. ABC upgrades are exempt from codified location restrictions for proximity to sensitive land uses such as schools and daycares as they apply to already approved projects. The upgrade will not result in a net increase in off-sale licenses in the census tract, the subject site is not located in a high crime reporting district, and the conditions placed on the new permit will mitigate any potential negative impact on the surrounding neighborhood.
Current hours of operation for the existing convenience store and gasoline sales are 24 hours per day, seven (7) days a week. The sale of alcoholic beverages will comply with State Alcoholic Beverage Control (ABC) regulations and only be offered between 6:00 a.m. and 2:00 a.m., seven (7) days a week. While the City has the authority to regulate and permit land use, the sale of alcohol is regulated by ABC.
The Project is consistent with the 2040 General Plan Land Use Map designation of Commercial applicable to the site. The project also furthers General Plan policies aimed at attracting employment and tax-generating businesses in the City (Policy LU-4.2). All of this is accomplished in a development proposal that is compliant with all applicable requirements within SMC Title 16 (Development Code).
Additionally, the subject use complies with the California Environmental Quality Act (CEQA) as an Initial Study/Final Negative Declaration was prepared and approved for the site under the prior Use Permit, which considered the convenience store use.
Appeal
Although Condition No. 8 is considered an optional condition under SMC Section 16.80.040(D)(5) for alcohol uses, it has been applied on past projects and is a carry-over from this project’s original 2017 approval for the off-sale of beer and wine. No objections to Condition No. 8 were received from the Applicant before or during the August 8, 2024 Planning Commission public hearing.
Further, the original project approval in 2017 was for a Convenience Store with off-sale beer and wine; Condition No. 8 is directly related to that use and was not contested during that entitlement process. The new UP request is a result of the applicant’s desire to upgrade their ABC license from a Type 20 (off-sale beer and wine) to a Type 21 (off-sale beer, wine, and distilled spirits). The application of Condition No. 8 would not impact distilled spirits as it is intended for the sale of beer/malt liquor, therefore the current request lacks a explanation or relationship to justify the removal of said condition.
The submitted appeal challenges Use Permit Condition No.8 based on the relevance and necessity of the condition as applied to the project. Specifically, the appellant provided several justifications for their position: (1) the applicant is experienced and has a proven track record of effective management and safe operations; (2) hours of operation for alcohol sales; (3) utilization of crime prevention through environmental design principles; (4) security measures; (5) consistent staff training, and (6) addressing consumer product demands/sale of craft beer. The applicant has provided a letter (Attachment G -Support Letter) to demonstrate each point.
Per SMC 16.100.040(G), the City Council may, by resolution, affirm, affirm in part, or reverse the action of the Planning Commission. The appellant is requesting that the Council affirm the Planning Commission’s approval in part - the only modification being the removal of Condition of Approval No. 8. The SMC requires four concurring votes of the Council to overrule or modify a decision of the Planning Commission.
It is staff’s recommendation that the City Council uphold the Planning Commission’s approval, with all conditions, as Condition No. 8 is a carry-over from the project’s original approval; no objections were received regarding said Condition during the original 2017 and recent 2024 Planning Commission hearings, and a lack of a l relationship exists between the new UP (alcohol license upgrade) and the pre-existing condition.
Environmental Analysis
The subject use complies with the California Environmental Quality Act (CEQA) as an Initial Study/Final Negative Declaration was prepared and approved for the site under the prior Use Permit, which considered the convenience store use.
Additionally, the proposed project is categorically exempt from CEQA, pursuant to CEQA Guidelines section 15301(a) (Existing Facilities), since the project will occupy an existing facility and no expansion of building or site is proposed.
PUBLIC COMMENT
Notice for this item was published in the Record, and a mailed meeting notice has been sent to all property owners within a 300-foot radius of 2910 West Eight Mile Road, on November 19, 2024. No written comments have been submitted from the time of the appeal to the preparation of this staff report.
FINANCIAL SUMMARY
Approval of the appeal would provide the City’s General Fund with additional revenue collected through Business Tax as a result of increased sales of single beer/malt containers under 40 ounces.
Denial of the appeal would provide no impact as the Condition has been in place since original UP approval and the ABC license upgrade allows the sales of distilled spirits in addition to the already approved beer and wine sales.
Attachment A - Location Map
Attachment B - General Plan Map
Attachment C - Zoning Map
Attachment D - Approved Use Permit P17-0667
Attachment E - Appeal
Attachment F - Planning Commission Approval Resolution
Attachment G - Support Letter