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APPEAL OF THE PLANNING COMMISSION APPROVAL OF A COMMISSION USE PERMIT AND WAIVER TO ALLOW THE OFF-SALE OF BEER AND WINE AT AN EXISTING MARKET AT 2208 EAST MAIN STREET (P23-0182) (APN 155-350-01)
recommended action
RECOMMENDATION
Staff recommends that the City Council adopt a resolution to deny the appeal and affirm the Planning Commission’s approval of a Commission Use Permit and Waiver to allow the off-sale of beer and wine at an existing market at 2208 East Main Street, based on the findings and subject to the conditions of approval incorporated in the proposed resolution.
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Summary
On July 25, 2024, the Planning Commission held a public hearing to consider a Commission Use Permit with Waiver request (herein referred to as “Project”) to add the off-sale of beer and wine at an existing neighborhood specialty market that provides general merchandising of Latino/Hispanic goods and foods at 2208 East Main Street, known as “Mi Ranchito Market and Carnicería”. Six (6) individuals provided comments, of which three (3) were in opposition to the Project, two (2) were in support, and one (1) was an employee of the Project expressing customer support. Following comments and deliberation, the Planning Commission unanimously approved the Project by a vote of 5-0 (Commissioners Vielma and Jones absent).
On August 5, 2024, Mary Elizabeth filed an appeal to the City Council requesting reconsideration of the Planning Commission’s approval, citing overconcentration of the census tract. Mary Elizabeth is one of the three commenters that expressed opposition to the Project at the hearing.
The City Council is now asked to consider the appeal of the Planning Commission’s approval decision. As reflected in this staff report and in the proposed resolution, Staff recommends the City Council deny the appeal and affirm the Planning Commission’s July 25, 2024, approval of the Commission Use Permit and Waiver.
DISCUSSION
Background
On September 27, 2018, the Planning Commission held a public hearing to consider a similar Use Permit request to add the off-sale of alcoholic beverages (beer and wine) at the Project location, which proposed to transfer an existing off-sale license from 2280 East Main Street to the Project site. At the time, the Project site did not comply with the location restrictions and was in an overconcentrated census tract. Staff recommended approval of the Use Permit with a Waiver to the location restrictions; however, the Project was denied due to a failure to obtain a majority vote of the Planning Commission, with a vote of 3-3 (1 commissioner recused). The Commission members who voted against the Project mentioned their vote was primarily due to concerns regarding existing overconcentration of off-sale Alcohol Beverage licenses in the census tract.
On July 7, 2023, the applicant, Mogalli Hussein Al Thabeti, filed an application for a Commission Use Permit and Waiver to add the off-sale of beer and wine (Type 20) at their existing general merchandise market and carnicería, known as “Mi Ranchito Market and Carnicería”, herein referred to as the “Project.” The requested Waiver was to waive the location requirement that restricted locating within 500 feet of other establishments that sell alcohol.
Staff reviewed the proposed Project and, although it did not meet all the location requirements without the Waiver, recommended the Planning Commission approve the requested Use Permit and Waiver, as permitted in SMC 16.80.040(D)(2) and find that the public convenience or necessity would be served by issuance of the Use Permit.
On July 25, 2024, the Stockton Planning Commission conducted a public hearing and considered the staff report and presentation, as well as a presentation from the applicant. There were three (3) members of the public who spoke against the item, citing concerns with overconcentration in the census tract and the effect of alcohol in low-income areas. Three (3) additional members of the public spoke in favor of the item. Two (2) written correspondences were received in opposition of the item. The comments were as follows:
1. Pandora Crowder questioned the need for another alcohol sales establishment in south Stockton and the effects of alcohol consumption on domestic violence.
2. Pat Barrett read a written communication, later submitted to the City Clerk.
3. Mary Elizabeth spoke on crime data statistics, overconcentration, ABC moratorium, and lack of limitations/restrictions to types of alcohol beverages. Mary Elizabeth also submitted a written communication.
4. Germaine Rucker Jr spoke in support of the Project, citing the convenience of having one location to purchase in a “one-stop” location.
5. Jerry B. Wilson spoke in support of the Project, citing the convenience of having one location to purchase in a “one-stop” location.
6. José spoke in support of the Project, citing the convenience of having one location to purchase in a “one-stop” location.
The Planning Commission discussed the item and after closing the public hearing, voted unanimously by a vote of 5-0 (Commissioners Vielma and Jones absent) to approve the Project.
Project Description
The Project is located on the southeast corner of East Main and Court Streets and is within the Commercial, General (CG) zoning district and is surrounded by:
- Commercial uses to the west, zoned CG
- Vacant commercial building to the east, zoned CG
- Office and Residential building to the north, zoned CG
- Residential building to the south, zoned Residential, Medium Density (RM)
Mi Ranchito Market and Carnicería, is a specialty neighborhood market (grocery store) that carries a wide variety of Latin foods, fresh produce, cheese and meats, and other household products. They currently operate in an approximately 3,200 square-foot building at 2208 East Main Street. (Attachment A - Aerial Photo and Location Map).
According to the applicant, the proposed off-sale beer and wine beverages will be displayed in three (3) of the ten (10) existing walk-in coolers on the west side of the store, and on two (2) six-foot wide sections of shelves (Attachment B - Floor Plan), and will not exceed 20% of the gross floor area, per the municipal code. The market would continue to sell other merchandise goods and grocery items. No expansion of the floor area of the market is proposed.
While the Department of Alcoholic Beverage Control (ABC) regulates the hours for the sale of alcohol between 6 a.m. to 2 a.m., a Use Permit is a discretionary action in which the City may evaluate and condition more restrictive hours for the sale of alcohol beverages. The proposed business hours for the market and for the sale of alcohol are from 8:00 a.m. to 10:30 p.m., Monday through Sunday
In accordance with Stockton Municipal Code (SMC) Section 16.20.020, Table 2-2, “Allowable Land Uses and Permit Requirements,” a Commission Use Permit is required for the sale of alcohol for off-site consumption (Alcoholic beverage sales; Sale of alcohol-off-sale) and is required to comply with SMC Section 16.80.040 (Alcoholic beverage sales (on-sale and off-sale) and SMC Section 16.80.270 (Problem Uses).
While the proposed off-sale establishment does not comply with all location restrictions under SMC Section 16.80.040 as discussed under “Analysis” in this report, per SMC 16.80.040(D)(2) the location restrictions may be waived by the Planning Commission and City Council to promote and support local economic business growth throughout the City. All findings required under SMC 16.168.050(A) General Findings, SMC 16.168.050(B) Problem Uses, and SMC 16.168.050(C) Alcoholic Beverages can be made for the proposed Project.
Staff reviewed the Project as proposed and, although it would not meet all the location requirements without the Waiver, recommends that the City Council affirm the Planning Commission’s decision to approve the Use Permit and Waiver.
Present Situation
ANALYSIS
The appellant is requesting that the City Council overturn the Planning Commission’s approval on the grounds that the Project further contributes to overconcentration of alcoholic beverage establishments in the census tract.
In accordance with SMC Section 16.100.040(G)(1), the City Council may affirm the Commission’s actions, thus maintaining Project approval, or reverse the Commission’s actions with four (4) concurring votes (a majority vote) and deny the Project. Additionally, the Council may adopt additional conditions, in accordance with SMC Section 16.100.040(G)(2). Staff’s recommendation is to affirm the Planning Commission’s decision per the analysis provided below.
When evaluating applications for a new alcoholic beverage sales establishment, the proposed Commission Use Permit must be evaluated against the location restrictions identified in SMC Section 16.80.040 as referenced below.
Location Requirements
Sensitive Receptors - SMC Section 16.80.040(D)(2)(a)
Per SMC Section 16.80.040(D)(2)(a), new alcoholic beverage sales activities or establishments shall not be located within 500 feet of a public or private kindergarten through grade 12 academic school, nursery school, preschool, daycare facility, public park, playground, recreational area, or youth facility.
Staff thoroughly researched and evaluated the surrounding area in relation to the proposed site and concluded the Project location is in compliance with this section. Although most of the land uses within 500 feet of the site, specifically to the south, are residential, residential uses are not a factor in this section of the Code. Staff determined that the Project location does comply with the noted minimum required separation.
Crime Reporting District - SMC Section 16.80.040(D)(2)(d)(ii)(A)
Per SMC Section 16.80.040(D)(2)(d)(ii)(a), the establishment shall not be in a crime reporting district, where the average number of crimes in that district exceeds the average number of crimes for all reporting districts citywide by more than 20 percent.
The subject site is located within Crime Report District 192, per data provided by the Stockton Police Department (SPD). The SPD data captured the reporting period in the district between October 16, 2021, and October 16, 2023.The data shows the citywide average for all reporting districts is 209 calls for service. At 181 calls for service, Crime Report District 192 is at 87% of the citywide average.
Staff has determined that the Project location does comply with this location restriction as it is located in a crime reporting district that does not exceed the city-wide average number of crimes by over 20 percent. (Attachment C - Calls for Service).
Existing Off-sale Licenses - SMC Section 16.80.040(D)(2)(ii)(B)
The establishment shall not be located in an area within 500 feet of an existing off-sale alcoholic beverage establishment or any location that will lead to the grouping of more than four (4) off-sale alcoholic beverage establishments within a 1,000-foot radius. Based on ABC records (Attachment D - ABC Records), there are two (2) existing off-sale ABC licenses within 1,000 feet, and more specifically within 500 feet, of the Project site, they are:
o A Market ±50 feet west of the Project site at 2196 East Main Street.
o A Liquor Store ±460 feet east of the site at 2280 East Main Street.
Approval of this Use Permit does comply with the 1,000-foot grouping requirement because it does not result in a grouping of four (4) or more off-sale establishments; however, it does not comply with the 500-foot separation requirement from another off-sale establishment (Attachment E - CT 19 Active Off-sale Licenses Map). A Waiver is required for the 500-foot separation requirement.
Required Findings
Use Permit
General Findings - SMC Section 16.168.050(A)
Staff verified that all required General Findings, with the exception of the location requirement, can be made to support the Project, as evidenced in the attached resolution. The use is allowed in the CG zoning district; it will provide for additional neighborhood-service retail to the local neighborhood; it is consistent with the goals, objectives and policies in the General Plan; the site is physically suitable for the development; the use will be subject to the conditions of approval requiring security upgrades to the site; the retail use of the store is compatible with other land uses on-site and in the vicinity; and, the Project is Categorically Exempt from CEQA.
Problem Uses - SMC Section 16.168.050(B)
As it pertains to problem uses, staff recommends that: the proposed use will not interfere with the comfortable enjoyment of the area as it will be located within an existing neighborhood serving market that will provide an opportunity for nearby residents to purchase alcoholic beverages and goods in one location; the existing commercial building is a Market and no expansion is proposed; and, the use will not contribute to deterioration or promote blight in the area and will not be contrary to any neighborhood programs.
Alcoholic Beverages - Section 16.168.050(C)
The Project will be conditioned to (1) endure to limit potential nuisance and criminal activity, littering, graffiti, and excessive loitering, (2) complete the approved course for responsible beverages sales, and (3) comply will all provisions of local, State and Federal laws, regulations, rules, policies, or orders enforced by the City of Stockton and ABC.
A public convenience or necessity (PCN) determination is required by California Business and Professions Code as the Project is located in an overconcentrated Census Tract (19) per ABC records. Census Tract 19 is allotted 4 licenses, based on its population, and there are currently eight (8) active off-sale licenses in the census tract. As previously noted in this report, there are only two (2) off-sale licenses within 500 feet of the Project site, of which one is located in the same census tract. The other seven (7) licenses are farther than 1,000 feet from the Project site.
Waiver - SMC Section 16.176.040
The Project applicant is requesting a Waiver to the Location Restrictions for proximity to another off-sale establishment per SMC Section 16.80.040(D)(2)(d)(ii)(B).
The Planning Commission applied their discretion to waive the restriction above, to promote and support local economic business growth throughout the City. To reiterate, the Project complies with SMC Section 16.80.040(D)(2)(a) related to separation from sensitive receptors and with the Crime Reporting District standards. However, the Project does not comply with the 500-foot separation requirement from another existing off-sale establishment as there are two (2) current active licenses, as previously mentioned.
Staff verified that all required Waiver Findings can be made to support the Project, as evidenced in the attached resolution. The existing market use is allowed in the CG zoning district and the proposed off-sale of beer and wine is permitted with a Use Permit. The proposed sale of beer and wine at the existing market will provide for added convenience for existing grocery shopping customers. The granting of the Waiver would not be detrimental to the public or neighborhood welfare as it will provide customers with an additional “one-stop shop” alternative to the existing liquor store at 2280 East Main Street that primarily sells alcohol.
The Use Permit to allow off-sale of beer wine will be applied to an existing market that provides a variety of services to the public; it is consistent with the goals, objectives, and policies in the General Plan; the site is physically suitable for the use and will be subject to the conditions of approval; the retail use of the store is compatible with other land uses within the vicinity; and the Project is Categorically Exempt from CEQA.
Appeal of the Planning Commission’s Decision
On August 5, 2024, Mary Elizabeth filed an appeal to the City Council requesting reconsideration of the Planning Commission’s approval citing overconcentration of the Census Tract, and citing data that indicates that overconcentration of alcohol negatively impacts health of individuals and the community where excessive alcohol outlets exist, specifically in a disadvantaged neighborhood (Attachment F - Appeal of PC Action).
Staff’s analysis of the Project was conducted with the allowances and constraints of the Development Code. In reviewing the Project, Alcoholic Beverage Sales establishments are subject to the location and grouping restrictions prescribed in SMC 16.168.050(A-C). The Project meets all the location restrictions with the exception of one (1), which is being located within 500 feet of two (2) other off-sale establishments (a liquor store and market), as mentioned in this report. The closest license outside of 500 feet restriction is 1,125 feet.
The proposed addition of the off-sale of beer and wine at the existing market will provide for added convenience for existing grocery shopping customers and it is conditioned to not exceed 20% of the overall square-footage of the store; it is not the primary use of the market. Staff recommends that the granting of the Waiver would not be detrimental to the public or neighborhood welfare as it will provide customers with an alternative to the existing liquor store on the same block providing for a “one-stop shop”.
As for the overconcentration in the Census Tract, the SMC Section 16.168.050(C) considers overconcentration when a public convenience and necessity finding is required for Alcoholic Beverage uses. The Planning Commission considered the proximity of alcohol concentration in the project site vicinity and within Census Tract (19), and determined the Mi Ranchito Market and Carnicería provides a wide range of desirable goods for the surrounding neighborhood and public convenience would be served by approving the off-sale of beer and wine. At the Planning Commission hearing, the Commissioners heard and considered the public comments and ultimately approved the Project request. Staff is recommending the City Council affirm the Planning Commission’s approval through denial of the Appeal.
Environmental Clearance
The proposed Project is Categorically Exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15301(a), Existing Facilities, since it includes interior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances. The interior of the store is being modified to include space dedicated to alcohol sales, display, and storage. No exterior modifications are proposed to the existing building.
Public Comments
Notice for this item was published in the Record on November 8, 2024, and a notice has been sent to all property owners within a 300-foot radius of the Project site on November 8, 2024. At the time of writing this report, Staff has not received any comment from the public on this Project.
Financial Summary
Approval of the Project would provide the City’s General Fund with additional review collected through Property and Sales Tax of the property and business.
Attachment A - Aerial Photo and Location Map
Attachment B - Floor Plan
Attachment C - Calls for Service
Attachment D - ABC Records
Attachment E - CT 19 Active Off-sale Licenses Map
Attachment F - Appeal of PC Action